LAW TUTORIALS

Constitution

By:-
Amit Sir
 Directive Principles of State Policy
DPSP are borrowed from the Irish Constitution which had been copied from the Spanish
Constitution. In the words of Sir Jennings,
“DP are based on the political philosophy.”
• Their Importance - DPSP are an instrument of principles which are aimed to establish
social and economic democracy .
And therefore KC Wheare called them as a manifesto of aims and aspirations .
While Sir Jennings called them as pious aspirations .
• Meaning of DPSP - Acc to MC Sitalvad ,
They are principles that aim at providing social and economic justice .
Acc to him they are ideals which are not legally enforceable in the Courts for their
violation.
• Nature of DPSP - DPSP are positive in nature and they are closely connected with the
concept of human rights .
And therefore they are called as human rights of second generation which includes
the following -
1. Social right
2. Economic right
3. Cultural right
• Object of DPSP - The object behind these principles are -
i. To establish the welfare state
ii. To establish economic and social democracy in India .
• Mandate of DPSP - Art 37 of Part IV of the COI embodies the following three principles
in this regard -
i. They are not justiciable.
ii. They are fundamental in the governance of the country
iii. Their implementation based upon the law as made by the State .
• Classification of DPSP - COI has not originally classified DP but on the basis of their
directions they are divided into 3 types -
1. Socialistic principles - They are the principles that aim at providing
social and economic justice and set the path towards the welfare state
.
Under various Articles they direct State -
i. To promote the welfare of the people by securing a social order
through justice social , economic and political .
ii. To minimize the inequalities in income status facilities and
opportunities
iii. To secure citizens right to adequate means of livelihood , equal
pay for equal work for man and woman , opportunities for the
healthy development of children etc.
iv. In cases of unemployment to secure right to work etc.
v. Art 42 - make provisions for just and humane conditions of work
and maternity relief.
vi. Art 43 to Secure a living wage etc for workers .
 vii. Art 43A - to take step for participation of workers in
management of industries
viii. Art 47 - to raise the level of nutrition and level of nutrition of
people and standard of living of people and their public health
2. Gandhian Principles - These principles are based on Gandhian ideology
. Under various articles they direct the State -
i. Art 40 - to organize village panchayat , gram panchayat etc.
ii. Art 43 - to ensure living wages etc for workers .
iii. Art 46 - to promote the educational and economic interest of
SCs STs and OWS of the society and to protect them from social
injustice and exploitation .
iv. Art 47 - prohibit the consumption of intoxicating drinks and
drugs injurious to health.
v. Art 48 - prohibit the slander of cows calves etc. and to improve
their breeds
3. Liberal/Intellectual Principles - These principles reflect the ideology of
social community under various articles they direct the State -
i. Art 44 - to secure for all citizens a uniform civil code throughout
the country .
ii. Art 45 - to provide early childhood care and education for all
children until they complete the age of 6 years .
iii. Art 48 - to organize agriculture and animal husbandry on
modern and scientific lines
iv. Art 48A - to protect environment forest and wildlife.
v. Art 49 - to protect monuments etc
vi. Art 50 - to separate judiciary from executive .
vii. Art 51 - to promote international peace and security
• New DPSP- By 42nd Amendment 1976 following new DP were added -
i. Art 39(f) - To secure the opportunities for healthy development of children .
ii. Art 39A - to promote equal justice and provide free legal aid to the poor .
iii. Art 43A - to take steps to secure participation of workers in the management
of industries
iv. Art 48A - to protect environment and safeguard forest and wildlife .
Besides the 42nd amendment 1976 , by 97th amendment 2011 , in order to promote
the cooperative societies a new DP was inserted by Art 43B .
• Co-relation of DPSP and FR - As per A 37 of the COI , DPSP are not justiciable but FR
are enforceable by the Court .
Due to this difference a controversy arose between the two , in case of conflict
who would prevail .
Firstly this question came before the SC in the case of St of Madras v Champakam
Dorairajan (1951). In this case SC observed that ,
In case of conflict between the two FR would prevail over the DPSP .
But in the case of St of Bihar v Kameshwar Singh , SC has modified this view .
However In Re Kerala Education Bill the SC has held that DP cannot override the
FR but in determining the scope of the FR the Court cannot ignore the DP and
should adopt the principle of harmonious construction and should attempt to give
effect to both as much as possible .
However in Golaknath case the SC clarified that FR cannot be amended for the
implementation of the DP .
In order to remove the difficulties created by the Golaknath case the Parliament
has passed the 25th Constitution Amendment Act 1971 .
Through this amendment , Art 31C was inserted . By this Article it is cleared that ,
If any law is made for the implementation of the DPSP as contained in
Art 39(b) and (c ) , then such law shall not be challenged on the ground
that it violates Art 14, 19 and Art 31.
The effect of this amendment is that Art 39 (b) and (c ) has been given primacy
over the FR.
In the case of Kesavananda Bharti v ST of Kerala , 25th Amendment 1971 was
declared as constitutional .
Later on by 42nd Amendment 1976 , the scope of Art 31C was extended and all
the DPSP were given priority over the FR .
Thus , 42nd Amendment accorded the position of legal primacy and supremacy to
DPSP over FR.
But this extension was declared unconstitutional in Minerva Mills v UOI .
In the case of Sanjeev Coke Mfg. Co , the SC has held that in the Minerva Mills
case question relating to supremacy between the FR and DPSP were not involved.
And thus created confusion .
The confusion created by Minerva Mills case has been removed by the SC in the
case of St of TN v. L Abu Kavur Bai .
In Unni Krishnan v St of AP SC held that FR and DPSP are supplementary and
complementary to each other . And FR must be construed in the light of the DPSP.
Similarly in ST of Gujarat v Mirzapur Moti Qureshi Qasab Jamaat has approved
the above view .
On the basis of above discussion it is confirmed that ,
FR and DP both are conscience of our Constitution and in case of conflict
between the two harmonious construction must be followed and should
attempt to give effect to both as much as possible.
 Fundamental Duties

• Introduction - The FD have been incorporated in the Constitution to remind every

citizen that they should not only be cautious of their rights but also of their duties . In
other words, incorporation of FD in the Constitution confirms the following principle-
“where there is a right, there is a duty.”
• Scope of FD - FD are confined only to citizens of India .
• Importance of FD - FD are incorporated to
1. They remind Indian citizens of their duties towards the society, fellow citizens
and the Union .
2. They help the Courts in exercising and determining the constitutional validity
of law.
• Source of FD - The FD are inspired by the Constitution of USSR and it is inserted upon
the recommendation of the Swarna Singh Committee by 42nd Amendment 1976.
By this Amendment in COI a new part ie. Part IVA was added and in this Part a new
article ie. Art 51A was inserted.
• Nature of FD - they are non justiciable , similar to DPSP. In other words , there is no
legal sanction against their violation.
• Category of FD - FD are categorized into 2 -
1. Moral duty
2. Civic duty
• Meaning of FD - FD is nothing but a code of moral precepts .
• Legislative effort for implementation of FD - The Verma Committee was constituted
in 1999 in order to identify the existence of legal provisions for the implementations
of the FD .
In this regard the following statutes are relevant -
1. The IPC 1860
2. The wildlife (protection) act 1972
3. The Protection of Civil Rights Act 1955 ( The Untouchability Act ) etc.
• Judicial effort regarding implementation of FD - The SC has In the case AIIMS
Students Union v AIIMS held that , FD should be taken into consideration while
construing the provisions of the COI .
Similarly , in the case of Aruna Roy v UOI the SC observed that in order to interpret
the constitutional provisions FD as mentioned in Art 51A should be taken into
consideration.
In the case of MC Mehta v UOI the SC has held that the compulsory teaching of
lessons on protection and improvement of environment should be introduced in
all educational institutions of the country.
In the case of Shri Sachidanand Pandey v St of WB the SC has held that , wherever
a case relating to problem of ecology is brought to the Court and it hears it , it
should keep in mind Art 48A and also Art 51A(g) .
Similarly , in the case of Abhilash Textiles v Rajkot Municipal Corporation SC has
expressed the same view.
In Sajeev Bhatnagar v UOI the SC held that the petition seeking direction to delete
the word "Sindh" from the National Anthem was not maintainable because
structure of national anthem is not needed to be changed with change in territory
of the nation.
 Pardoning power of President

• Relevant provision - Article 72 of COI, 1950 deals with this pardoning power of
President.
• Nature of this power - The SC in case of Kehar Singh v UOI held that , the power
conferred by Article 72 is an executive function.
• Limitation on this - As held in Maru ram v UOI in exercise of pardoning power ,
President has to act on the advice of the council of ministers.
Like any other public power it cannot be exercised arbitrarily or mala fide.
It must be exercised in accordance with the guidelines of any prescribed.
• Cases in which pardoning power must be exercised - According to Article 72 in
following cases this power may be exercised by the President.
a. In all cases where the sentence is passed in respect of any offence which comes
within the executive power of the union.
b. In all cases where sentence is sentence of death.
• Extension of this power: The SC has in case of Kehar Singh v UOI held that President's
power to pardon extends to criminal contempt of court.
• Judicial review of President's power under A 72- The SC has in case of Satpal Singh v
State of Haryana held that , the pardoning power of the President is subject to limited
judicial review.
In Epuru Sudhakar v Govt of Andhra Pradesh - The pardoning power of
Governor/President's power can be challenged on following grounds.
a. That the order has been passed without application of the mind.
b. That the order is mala fide.
c. That the order has been passes on irrelevant grounds.
d. That the order suffers from arbitrariness etc.
The above mentioned grounds have been reaffirmed in the case of St of Haryana v
Jagdeesh.
• Comparative study of pardoning power between President and Governor- The
pardoning power of 'President' is different from the pardoning power of the
'Governor' on following 2 grounds -
a. Regarding the death sentence - The governor cannot exercise his pardoning
power in respect of death sentence , but he may commute such sentence.
b. Regarding court martial- The Governor cannot interfere in any sentence
passed by the martial court.
c. Regarding pendency of the case - The SC has in case of KM Nanawati v St of
Maharashtra held that if the matter is pending before SC then Governor
cannot exercise his pardoning power.
In Ramdev v/s Bani Kant Das Governor's order passed u/a 161 for
commutation of death sentence for life imprisonment cannot be challenged
because 'Governor' considered all relevant materials including
recommendation of NHRC.
 Powers of the President
The President of India has varieties of powers which are separated throughout the
Constitution which can be classified as follows -
• Executive Power of President
• Legislative Power of President
• Emergency Power of President

EXECUTIVE POWERS OF PRESIDENT

It may be discussed as follows -

i. Power as head of the State (read with 53,77)

[For President]
According to Article 53, the executive power of the Union vests in the President and
according to Art 77 executive actions of the Government of India ought to be taken
in his name.
[For Governor]
Art 154 vests all executive of State on 'Governor' and according to Art 166 all
executive actions of the State Government ought to be taken in his name.
In Chitralekha v. St of Mysore - Court held that Art 166 is not mandatory but
directory.

ii. Powers as to defense forces - Cl(2) to Art 53 , declares that Supreme commander of
the Defense Forces shall vest in President and the exercise thereof shall be regulated
by law.

iii. Powers in relation to Council of Ministers - It may be discussed as under -

a. Appointment and dismissal of Ministers -
• President - According to Cl (1) of Art 75 the Prime Minister shall
be appointed by the President and the other ministers shall be
appointed by the President on the advice of the PM and they
shall hold their office during the pleasure of the President.
• Governor - same will be applied under Art 164.
• President - Theoretically he can dismiss them at any time but
convention established in parliamentary setup are quite
different because ,
the President is nominal head of the State . The real
executive power rests with the CoM headed by the PM .
• Governor – same is followed.

b. Power to allocate business and rules -

President - Cl(3) to A 77 empowers the President to make rules for more
convenient transactions of business of GOI and allocation of business among
ministers.
Governor - same is followed under A 166(3)
 c. Power to call for information -
President - acc to Art 78 the President may call for any information and it is
the duty of the PM to furnish all decisions of CoM relating to the
administrations of affairs of Union.
Governor - same is applied under A 167 .

iv. Power to appoint certain officers and commission

President - He appoints Attorney General , CAG, Chief Election Commissioner
and members and UPSC Chairman and its members.
He also appoints judges of the HC and the SC and Governor of the States etc.
Governor - he has the power to appoint judges of the HC in State , Advocate
General of the State , SPC and members.

v. Power to grant 'pardon' etc.

President - Art 72 empowers him to grant pardon etc. in certain matters as
mentioned in this article.
In the case of Maru Ram v. UOI SC has held that in exercise of pardoning
power President has to act on advice of the Council of Ministers.
Governor - art 161 empowers to grant pardon etc. in certain cases.
In the case of Kehar Singh v. UOI the SC has held that , power to grant pardon
comes within the executive power of President and Governor .

vi. Power to act as representative of Centre - State Governors have dual role . They have
to act as constitutional head of the State as well as the watchman of the Centre.
In fact, his second role is more important. In this regard the following points
may be referred -
i. He keeps watch on the State laws and has power to reserve the bills
for consideration of President.
ii. The Union has power to give executive direction to State and
Governor has to keep watch on the implementation of these
directions.

LEGISLATIVE POWERS OF PRESIDENT

i. To decide questions as to disqualifications of members ( A 102,103,192,193)

ii. Nomination of certain members of Council of States (A 80, 171)
iii. Summoning, prorogation , dissolution ( A 85(1)(2), 174(1)(2))
iv. To address the house (A 86m87,175,176)
v. To send messages (A 86(2), 175(2))
vi. To recommend financial measures (A117,207)
vii. Assent to bills (A 111,200)
 Judiciary

Collegium System

It is a system of appointment and transfer of judges that has evolved through the judgements
of the Supreme Court and not by an act of parliament or by provisions of the Constitution of
India .

EVOLUTION OF COLLEGIUM SYSTEM

1ST JUDGE CASE 1981 - by this case it was declared that the primacy of recommendation
of the CJI on judicial appointment and transfers can be refused for cogent reasons .
This ruling gave the executive primacy over the judiciary.

2ND JUDGE CASE 1993 - in this case the SC introduced the collegium system holding
that consultation really meant concurrence.
It added that it was not the individual opinion of the CJI but an institutional opinion
which is formed in consultation with 2 senior-most judges in the SC.

3RD JUDGE CASE 1998 - The SC on the presidential reference expanded the collegium
to a 5-membered body comprising the CJI and 4 senior-most judges of the SC .

COLLEGIUM HEADED BY WHOM ?

The SC Collegium is headed by the CJI and comprises of 4 other senior-most judges of the SC
.
While a HC Collegium is led by its Chief Justice and 4 other senior-most judges of that Court.
Names recommended for appointment by a HC Collegium reaches the government only after
approval by the CJI and SC Collegium .

PROCEUDRE FOR APPOINTMENT OF JUDGES OF SC/HC

1. For CJI - the President of India appoints the CJI and the other judges of the SC.
as far as CJI is concerned , the outgoing CJI recommends his successor.
But in practise , it has been distinctively done by seniority.
IN RE PRESIDENTIAL REFERENCE CASE , the SC has approved the SC Advocate on
Record Association v UOI and clarified that only senior most judge of the SC can be
appointed as CJI.

2. For other Judges of the SC - The SC has in the case of SP GUPTA v UOI observed that
the appointment of other judges of the SC/HC can be initiated either by CJI or by the
Central Government.
 But in the case of SC Advocates on Record Association V UOI 1994 overruled the
decision of SP Gupta on this point and held that , process must be initiated by CJI
only .
For the appointment of the other judges of the SC , the proposal shall be initiated
by the CJI .
The CJI shall consult the rest of the collegium members .
Thereafter , such consultation must be recorded in writing .
The Collegium sends recommendation to the Law Minister who forwards it to the
Prime Minister to advise the President.
IN Re Presidential Reference Case 1998 , the SC has clarified that if the
recommendation of the Collegium is not in accordance with the directions as given
in the case then President is not bound to follow the recommendation of the
Collegium.

3. For appointment of CJ of HC - The Chief Justice of the HC is appointed as per the policy
of having Chief Justices from outside the respective States . However for the
appointment of the CJ of the HC , CJI shall consult with two senior-most judges of the
SC .

4. For appointment of other judges of the HC - for this purpose HC judges are
recommended by a collegium comprising the CJI and 2 senior-most judges of the SC.

LATEST POSITION OF 99TH AMENDMENT ACT 2014

By 99th Amendment Act 2014 National Judicial Appointment Commission (NJAC) was
introduced which was struck down by the SC in 2015 in the case of SC Advocate on Record
Association v UOI on the ground that it posed a threat to the independence of judiciary.

AS TO TRANSFER OF JUDGES OF HC
In this regard , the CJI shall consult with the following -
i. Four senior-most judges of the SC
ii. The Chief Justice of the HC ( from transferor state )
iii. The Chief Justice of the HC (from transferee state )
Supreme Court Judges

• Appointing Authority - The Judges of the Supreme Court shall be appointed by the
President on the recommendation by the Collegium.
• Appointment process -
1. Before in re Presidential Reference Case
2. After in re Presidential Reference Case 1998
• Required Qualification - Acc to Art 124(3) , for appointing a judge of the SC the
following qualifications are required -
a. Mandatory qualification - He should be citizen of India .
b. Alternative qualification –
He must have been at least 5 years as a judge of HC or two or more such
Courts in succession
Or
Has been for at least 10 years an advocate of a HC or two or more such
Courts in succession
Or
He is , in the opinion of the President , a distinguished jurist .
• Tenure - Acc to Art 124(2) every judge of the SC shall hold office until he attains the
age of 65 years .
• Oath of office - Acc to cl(6) to Art 124 every judge of the SC ( before entering upon his
office ) shall take an oath before the President of India in such a manner as prescribed
by the Third Schedule.
• Removal Process - A 124(4) and (5) deal with procedure for removal of SC judges .
- Procedure as laid down in cl (4) - Resolution relating to removal of SC
judges may be initiated by any house of the Parliament .
Such resolution must be approved by both the houses of the
Parliament by special majority.
But the condition is that such resolution must be passed by both houses
of the Parliament in the same session .

- Ground as mentioned in Cl (4) for removal of SC judges - Acc to cl (4) to

Art 124 , for removal of SC judges following two grounds are mentioned
in this clause -
a. Proved misbehavior or
b. Incapacity

- Parliament's power to make law on this point - Acc to cl (5) of Art 124
empowers Parliament to make law for regulation of the procedure for
presentation of resolution and investigation and proof of misbehavior
or incapacity of the judge.
By virtue of this clause the following act has been passed by the
Parliament -
" Judges (Inquiry) Act 1968 "

• Statutory requirement - The Judges (Inquiry) Act 1968 requires that ,

Notice for presentation of address can be given in either house of the Parliament.
In the House of the People notice should be given by 1/3rd of the members and in
the Council of States by not less than 56 members .
If the notice is given in the House of the People and it is admitted , the Speaker
should keep it pending and in the meantime constitutes a Committee consisting
of one SC judge ( including CJI) , one CJ of a HC and one distinguished jurist .
The committee shall investigate the charges set out in the motion. Committee will
give reasonable opportunity to the judge to be removed to present his written
defense .
In case of incapacity (as mentioned in the motion) such judge must be present for
medical examination by a medical board .
If the committee finds that judge is not guilty of misbehavior or he does not suffer
from incapacity , no further action would be necessary .
On the contrary , if the investigating committee finds that the charges are proved
then houses take up the motion for consideration and if passed by requisite
majority in both the houses then it is presented to the President and thereafter
President shall remove the judge from his office .
Original or Exclusive Jurisdiction

• Original Jurisdiction under Art 131 - Art 131 gives exclusive jurisdiction to the SC in
following cases -
1. Disputes between the Government of India and one or more States
2. Disputes between the GOI and any State or States on one side and one or more
States on the other
3. Disputes between two or more States

• Judicial approach on the word 'State' as used under Art 131 - Applicability of Art 12?
The SC has in the case of UOI v St of Rajasthan clarified that the comprehensive
definition of the State in Art 12 does not apply under Art 131 .
Similarly in the case of M/s Tashi Telek Gaming Solution Ltd. V St of Karnataka ,
SC held that even statutory corporation are not State under Art 131 .

• Limitation on exclusive jurisdiction - Limitations over exclusive jurisdiction may be

discussed as follows -
a. Limitations as imposed by Art 131 itself –
- As to parties to the dispute - The SC has in the case of St of Bihar v UOI
held that ,
Original jurisdiction under Art 131 extends only to inter- State
disputes.
Which means if there is any dispute between the State/GOI and
the individual then it will not fall within the ambit of Art 131 .
- As to subject matter - As per Art 131 ,
Dispute in question must involve any question ( whether of law
or of fact ) on which the existence or extent of a legal right
depends .
The SC has in several cases such as -
i. St of Rajasthan v UOI
ii. St of Karnataka v UOI
Clarified that , the legal right here means ,
An interest recognized and protected by law .
- As to pre-constitutional treaties etc. - Acc to proviso to Art 131 , the SC
cannot exercise its exclusive jurisdiction over the pre Constitutional
treaties etc.
However by exercise of advisory jurisdiction , by virtue of Art
143(2) SC can entertain such matters .

b. Limitations as imposed by other Articles of this Constitution - Art 131 uses

the following expression -
" Subject to the provisions of this Constitution "
The above expression clearly indicates that ,
In case of conflict with the provisions of any other article then
restrictions imposed will prevail over Art 131 .
These are -
1. Inter-state water dispute - According to Art 262 , Parliament is
empowered to exclude by law the jurisdiction of the SC in
matters or dispute with respect to use , distribution or control
of water of inter-state rivers
2. Matters as exercised by Finance Commission - According to Art
280 , the exclusive jurisdiction of the SC shall not extend to
matters referred to Finance Commission
3. Matters relating to adjustment of certain expenses - Art 290
clearly states that disputes relating to adjustment of certain
expenses between the Union and the States may be settled by
agreement and in default of agreement by arbitrator appointed
by the CJI .
Appeal to Supreme Court

APPEAL ON CONSTITUTIONAL QUESTION ART 132

• RP - A 132 of the COI is concerned with appeal on constitutional question .
• Its scope - The scope of Art 132 is wider than A 133 and 134 because under Art 132
decree, judgement or final order may be made or passed in any civil or criminal or any
other proceeding .
• Condition precedent for preferring an appeal under A 132 - Acc to A 132 , condition
precedent is that ,
Matter in question involves substantial question of law as to interpretation of the
Constitution .
• Requirement of certificate - Acc to A 132 for preferring an appeal it is necessary that,
It should be certified by the HC that matter is fit for appeal before the SC .
• Requirement of constitutional bench - Acc to cl (3) to A 145 ,
Appeal on constitutional question should be heard by constitutional bench
consisting of atleast 5 judges of the SC .

APPEAL IN CIVIL CASES

• RP - A 133 of the COI deals with appeals in civil cases .
• Its scope - A 133 is confined only to the civil matters .
• Limitation upon this appellate jurisdiction - There are following two limitation on this
appellate jurisdiction -
1. As to pecuniary jurisdiction - Prior to the 30th Constitutional Amendment Act
1972 , for preferring an appeal in civil cases it was necessary that valuation of
the suit should not be less than Rs 20000 . However , by this amendment this
limitation has been done away with .
2. As to the judgement of the single judge of the HC - Cl (2) to A 133 prohibits
appeal from judgement of a single judge of the HC . However this clause
authorizes the Parliament to make laws permitting appeal from judgement of
a single judge .
• Condition precedent for preferring an appeal - Acc to A 133 , appeal shall be
permitted only when case involves substantial question of law of general importance.
• Requirement of certificate - Besides above it is also necessary that HC certifies that
the said question needs to be decided by the SC .

APPEAL IN CRIMINAL CASES

• RP - A 134 of the COI deals with appeals in criminal cases .
• Analysis of Art 134 - In criminal matters appeal shall lie from a judgement , final order
or sentence of a High Court .
Such appeal can be dealt with in two categories -
1. Appeal as a matter of right without certificate
2. Appeal in other cases with the certificate of the HC
 • Appeal without Certificate - Acc to cl (1) to A 134 in following two matters accused
can prefer an appeal to the SC -
a. Where the lower court acquits the accused but the HC reverses the order of
acquittal in appeal and passes sentence of death or
b. Where the HC withdraws a case from the lower court and conducts the trial
itself and convicts the accused and awards death sentence .
Thus in both the situation it is necessary that the HC must have passed death
sentence .
• Enlargement of criminal jurisdiction of the SC - Cl (2) of Art 134 provides that the
Parliament may confer in SC any further power to hear criminal appeal .
By virtue of cl (2) Parliament has passed the following Act -
" Supreme Court Enlargement of Criminal Appellate Jurisdiction Act 1970 "
S 2 of this Act provides that ,
If the HC
a. Has on appeal reversed an order of acquittal and sentenced him to
imprisonment for life or for a period of not less than ten years
or
b. Has withdrawn for trial before itself and has in such a trial convicted
the accused and sentenced him to imprisonment for life or for a term
not less than 10 years .
• Appeal with certificate - Art 134 (1)(c ) provides that in other cases appeal shall lie to
the SC against the judgement of the HC if the HC under Art 134A certifies that case is
fit for appeal to the SC

APPEAL BY SPECIAL LEAVE

• RP - Art 136 of the COI deals with Special Leave Petition .
• Its nature - The SC has in the case of Keshav Prasad Sharma v Indian Oil Corporation
held that appeal by special leave is not a regular form of appeal . It is a residual
provision which enables SC to interfere with any order of any Court or tribunal in its
discretion in exceptional circumstances.
• Scope of Art 136 - Under Art 136 , appeal is not limited to any particular type of case.
It may be from civil or criminal or any other type of case .
Besides above the appeal under A 136 is possible from any judgement , decree ,
determination , sentence or order whether it is final or not .
• Stages of Art 136 - the SC has in the case of Kunhayammeed v St of Kerala held that
the jurisdiction conferred by Art 136 is exercised in two stages . They are -
1. Granting special leave to appeal and
2. Hearing the appeal .
First stage - Granting Special leave to appeal - During this stage the SC decides
that whether special leave should be granted or not .
In this stage , the SC clearly exercises a discretionary power . But this
discretionary power is not absolute .
While deciding petition for special leave to appeal , the SC cannot reverse or
modify the decree etc.
 Second stage - Hearing the appeal - if the special leave to appeal is granted only
then petitioner and respondent may be called upon to face the petition .
However , in appropriate cases , in spite of having granted leave the Court
may dismiss the appeal .
• Limitation over A 136 - the limitation over Art 136 may be discussed as follows -
1. As imposed by Art 136 itself
2. As imposed by the SC
• Limitation as imposed by Art 136 - Cl 2 to Art 136 ,
Jurisdiction conferred by Art 136 shall not be exercised against any judgement
order of any Court or tribunal constituted under any law relating to armed forces.
• Limitation as imposed by SC - In Pritam Singh v State SC has held that the Court shall
not grant special leave unless it is shown that exceptional and special circumstances
exist .
Similarly in Ashok Nagar Welfare Association v RK Sharma , SC observed that it
will exercise discretion where substantial and grave injustice has been done.
The SC has in the case of Indra Kaur v Shivlal Kapoor held that it is well settled
under Art 136 that normally the SC does not interfere with the concurrent findings
of fact arrived at by the Court below unless the finding have caused grave
miscarriage of justice to the appellant .
• Special statute and jurisdiction under Art 136 - In UOI v West Coast Paper Mills LTd.
SC held that the jurisdiction conferred by Art 136 cannot be excluded by special
statutes .
Power to Review
• RP - A 137 of the COI deals with power to review acc to which SC can review its own
order or judgement .
• Its scope - The SC has explained its scope in M/S Northern India Caterers ( India) v Lt
Governor of Delhi (1979) .
In this case the SC observed that ,
" the normal principle is that judgement pronounced by the Court is final and
departure from that principle is justified only when circumstances of a substantial
and compelling character make it necessary to do so".
Similarly in the matter of Cauvery Water Dispute Tribunal SC explained that
review power is permitted only when matter is exceptional one such as -
i. When decision is per incurium
ii. Where decision is given in absence of relevant material facts .
iii. When judgement is manifestly wrong and productive of public
mischief.
• Objective of review - The object is two fold -
1. To avoid miscarriage of justice
2. To prevent abuse of process of the Court
• Its nature - The SC has in Patel Naresh v Pradyuman Singh Ji Hardom Singh Ji clarified
that power of review is not an appeal . It is an extra-ordinary power by which the SC
reviews its own judgement.
• Limitation over power to review - Acc to A 137 the SC's power to review is subject to
following limitations -
1. Any law made by the Parliament
2. Rules made by the SC u/A 145 of the COI ( cl (1)(e ) )
• Grounds upon which the review application can be entertained -
1. In civil matters - In civil matters review application is entertained on grounds
mentioned in Rule 1 of Order 47 of CPC 1908 .
2. In criminal matters - Acc to Order 40 R 1 of SC Rules 1966 review application
can be entertained on ground of error apparent on the face of the record.
• Limitation period - Acc to O 42 of the SC Rules 2010 , an application for review must
be filed within 30 days from the date of the order or judgement .
• Can third party file review petition ? IN Sahara India Real Estate Corporation LTD v
SEBI , the SC held that ,
There would be no locus standi to move review petition if the petitioner was not
party to the judgement or order sought to be reviewed under A 137 COI
• Review against review - Ordinarily review against review is not permissible . However
in Rupa Ashok Hurra v Ashok Hurra SC laid down principle of curative petition i.e. you
can ask the Court to look into matter again . It is basically re-review .
In this case SC has also held that ,
A curative petition maybe entertained by the SC on the following grounds -
1. Violation of principles of natural justice.
2. Abuse of process of Court .
3. There has been bias by the judge and the judgment affected the party .
4. Review petition of petitioner has been dismissed .

This concept of curative petition was formulated by SC under A 142 of the COI .
Advisory Jurisdiction of the Supreme Court

• RP - A 143 of the COI 1950 deals with advisory jurisdiction of the SC .

• Nature of this provision - In re Kerala Education Bill 1958 SC has held that the
jurisdiction conferred by A 143 is of an exceptional nature and there is no such power
in the Constitution of USA or Australia .
• Analysis of A 143 - The provisions of A 143 may be discussed as follows -
1. Jurisdiction conferred by cl (1)
2. Jurisdiction conferred by cl (2)
• Advisory jurisdiction in respect of any matter as referred in cl(1) - Acc to cl (1) to A
143 upon fulfilment of the following conditions , the President may seek advice from
the SC -
i. There must be a question of law or fact
ii. The opinion sought by the President must be in respect of any matter
iii. The question upon which opinion is sought has arisen or likely to arise
iv. The question must be of such public importance that it is necessary to obtain
the opinion of the SC
• Effect of fulfillment of the above conditions - upon fulfillment of the above
conditions,
The SC may give its opinion on such question .
The expression 'may' as used in cl 1 suggests that SC is not bound to give its
opinion on such questions .
• Judicial approach upon this point - The SC has IN re Kerala Education Bill 1958 SC
observed that it may in proper case and for good reasons declined to express any
opinion on questions submitted to it .
Similarly IN Re Powers, Privileges and Immunities of the State Legislature ,
SC held that if the question formulated for advisory opinion or purely socio-
economic or political question which have no relation with any provision of
the Constitution , it may not express its opinion .
The SC has refused its opinion for the first time in Special Reference NO. 1
of 1993 .
However , the minority view of Justice AM Ahmed and Justice Bharucha in
DR. M Ismail v UOI suggested that reason for refusal must be indicated .
And another time it refused in the question of validity of Resettlement Act
passed by J&K .
• Advisory jurisdiction in respect of Pre constitutional treaties etc - Acc to Proviso to
A 131 the SC cannot exercise its exclusive jurisdiction in respect of pre constitutional
treaties .
But according to cl (2) to A 143 empowers the President to refer any dispute
relating to pre Constitutional treaties etc. for the opinion of the SC .
And in such cases the SC is bound to give its opinion .
• Is President bound by opinion of SC ? The main reason for this controversy is that it
is merely an advice and therefore the president may or may not accept the advice .
However , the expression 'law declared' as used under A 141 , includes the advice as
given by the SC under A 143
This suggestion has been endorsed by the SC in the matter of IN Re Cauvery Water
Disputes Tribunal wherein the Court held that the President cannot ask the SC to
reconsider its opinion .
Law Declared By Sc To Be Binding On All Courts A 141
A 141 constitutes judicial precedent .
Acc to this Article the judgement of SC will be binding on all Courts in India .
The SC has in the case of Bengal Immunity Co. V St of Bihar construed the expression
"all courts within the territory of India" and held that it means Courts other than the
SC .
Thus SC is not bound by its own decisions and may in proper case reverse its previous
decisions .
In the case of St of Assam v Ripa Sharma the SC held that the per incurium judgement
cannot be alleviated to the status of the precedent under A 141 .
In Mahendra Chawla and Co. v UOI (2019) the SC had endorsed witness protection
scheme 2018 under A 141 and 142 of the COI which is binding on all Courts within the
territory of India and enforceable in all states and union territories and this scheme
would be the law of the land .
In this case SC further held that the right of witnesses to testify freely in Courts is a
part of A 21 .

Complete Justice A 142

Acc to A 142 in the exercise of its jurisdiction , the SC is entitled to pass any decree or
order for doing complete justice ..
Acc to cl (2) to A 142 the SC can pass order for any of the following purpose -
1. Securing attendance of any person
2. Production or discovery of documents
3. Investigation
4. For punishment of contempt of itself .
Following cases are relevant on A 142 –
1. Union Carbide Corporation v UOI (Bhopal Gas Tragedy case )
2. Manohar Lal Sharma v The Principal Secretary and others ( Coal Block
Allocation Case)
3. St of TN v K Balu ( Ban on Liquor on highway)
4. Subhash Kashinath Mahajan v St of Maharashtra
5. Prithviraj Chauhan v UOI 2019
6. Vishakha v St of Rajasthan

Rule Making Power A 145

Ashok Pandey v SC of India - The SC held that in the allocation of cases and in
constitution of benches the Chief Justice has an exclusive prerogative and the Chief
Justice is primus interpares which means that he is the first among the equals .
Freedom of Trade Commerce and Intercourse

• RP - A 301-307 of the COI 1950 deals with freedom of trade commerce and
intercourse.
• Its basis - The provisions contained in Part 13 are based upon Australian Constitution
which ensure the free mercantile activities throughout territory of the country.
• Its object - The SC has in the case of M/s BR enterprises v. St of UP held that the object
behind these provisions are -
To ensure the free flow of trade activities in the country
• Its Scope - Art 301 includes the following within its ambit -
1. Trade and
2. Commerce
3. And Intercourse
• Meaning of the word 'trade , commerce and intercourse' - The expression "trade" ,
"commerce" and "intercourse" have a very wide scope and these words were
explained by Justice Field in the case of Weldon v Missouri .
The SC of India has followed the view of Justice Field in the case of GK Krishnan v
St of TN and defined these terms as follows -
Trade means selling or buying the goods .
Commerce means all forms of transportation by land , water or by air .
Intercourse means movement of goods from one place to another place .
• Nature of the freedom - Art 301 declares that -
i. Trade commerce and intercourse
ii. Shall be free
iii. Throughout the territory of India
The word "free" as used in Art 301 does not mean in its absolute sense because
freedom guaranteed by Art 301 is subject to provisions of this Part . ( as mentioned
in Art 301 itself) .
• Limitations over this freedom - the limitations on this freedom are as follows -
1. Restrictions on the basis of public interest –
- Parliament's power to enforce restrictions under Art 302 - According to
Art 302 , Parliament may impose restrictions upon the freedom of
trade, commerce and intercourse on the basis of public interest.
In this regard the SC has in the case of GK Krishnan v St of TN held that
the word "free" in Art 301 does not mean freedom from regulation and
therefore laws made by the Parliament on the basis of public interest
may be classified in following two categories -
a. Restrictive laws
b. Regulatory laws
In the case of Atiabari Tea Co. v St of Assam , SC has clarified that if the
law made by the Parliament facilitates the trade activities then it is said
to be regulatory laws .
Similarly , in the case of Automobile Transport ( Rajasthan) Ltd . v. St
of Rajasthan , SC has observed that law made by the Parliament like
rules of traffic , rules relating to highways are regulatory laws .
 - Power of the State Legislature to enforce restrictions in public interest-
Acc to Art 304(b) , State legislature is empowered to impose
reasonable restrictions on the basis of public interest .
It means law made by the State Legislature under Art 304(b) should
satisfy the double test. In other words restriction imposed -
a. must be reasonable
b. Must be made on the basis of public interest.
Requirement of President's Assent - Proviso to Art 304(b) law made
by the State Legislature requires previous sanction of the President and
therefore in the case of Atiabari Tea Co. Ltd v St of Assam , the SC has
declared an ordinance as promulgated by the Governor to be
unconstitutional on this ground.
In this regard a question arises where the principal act has been
assented to by the President , the question is whether
subsequent amendment of the said act should again be
submitted before the President for his assent .
This question arose in Sayyed Ahmed v St of Mysore . In this case
the amending act in question was held valid because it did not
impose any additional restrictions .
Similarly M/s Punjab Traders v St of Punjab the SC has again said
that where amending act is merely clarificatory it need not be
reserved for President's assent .
2. Prohibition against discriminatory laws - Acc to Art 303(1) , both Parliament
and State Legislature , have been prohibited from enacting any discriminatory
law giving preference to one State over another .
- Its exception - Acc to Art 303(2) , only Parliament is allowed to make
discriminatory laws giving preference to one State over another on the
ground of scarcity of the goods .
• Prohibition against discriminatory taxes - Art 304(a) gives power to State Legislature
to impose on goods imported from the other states taxes to which similar goods
manufactured within the State are subject so as not to discriminate between the
goods produced or manufactured within the State and those imported from other
States .
The SC has in the case of St of MP v Bhai Lal Bhai held that ,
If any discriminatory law is made by the State Legislature in contravention of Art
304(a) then such law shall be declared as unconstitutional .
• Saving of existing laws - A 305 provides that nothing in Art 301 and 303 shall effect
the provisions of any existing law except in so far as the President may direct
otherwise .
• State Monopolies laws - A 305 and 19(6) - Art 305 also saves with retrospective effect
laws providing for State monopolies .
The SC has in the case of Saghir Ahmed v ST of UP held that law relating to state
monopoly as prescribed by Art 19(6)(ii) and as prescribed by Art 305 , in between two
there is only one difference that Art 305 gives retrospective operation to such laws
while Art 19(6)(ii) does not .
However , in the case of Saghir Ahmed a question arose whether a law providing for
State Monopoly would violate Art 301 ? This question was left open .
• Appointing the authority - Art 307 empowers Parliament to appoint the authority for
the carrying out the purposes of Art 301, 302, 303 and A 304 .
But in India no authority is appointed for this purpose. However Sarkaria
Commission has recommended Constitution of an expert authority under this
article.
Amendment
• Procedure prescribed for amendment in the constitution - Acc to the Constitutional
scheme of the COI ,
3 manners are prescribed for amendment in Constitution
1. Amendment by simple majority
2. Amendment by special majority
3. Amendment by special majority and by ratification of more than one
half States.
• Amendment by Simple Majority –
- Meaning of simple majority - the simple majority indicates a majority
of more than 50% of the members present and voting in the house.
- Examples of the Constitutional provisions which can only be amended
by simple majority - Acc to the constitutional scheme , following can be
amended only by the simple majority -
i. Art 2 Admission or establishment of new states
ii. Art 3 formation of new states etc.
iii. Citizenship - Acquisition and termination - Art 5 , 9 and 11
iv. Schedule II , V , VI -
v. Quorum in parliament A 100(3)
vi. Salary and allowances of members of Parliament A 106
vii. Parliamentary Privileges A 105
viii. Use of English Language in Parliament - A 120
ix. Rules of Procedure in Parliament A 118
x. Number of Judges in the SC - Art 124
xi. Conferring more jurisdiction to the SC -
xii. Use of official language
xiii. Election to the Parliament and State Legislature
xiv. Delimitation of constituencies
xv. Union Territories
xvi. Abolition or creation of legislative council A 169
- Effect of amendment on above mentioned items - These amendments
are outside the scope of Art 368 and therefore they are not deemed to
be amendment of the Constitution for the purposes of Art 368 .
• Amendment by Special Majority and Ratification by one-half of the State
Legislatures - The proviso to cl(2) makes it clear that the following provisions can be
amended only when the Bill for that purpose is passed in each house of Parliament in
accordance with the following -
" by a majority of total majority of that house and by a majority of not less than
2/3rd of the members of that house present and voting and is ratified by the
legislatures of not less than one-half of the States .
• Constitutional provisions which can be amended by this process -
a. Art 54 and 55 ( election of the President)
b. Art 73 (Extent of the executive power of the union )
c. Art 162 ( Extent of the executive power of the State)
d. Ch IV of Part V of Constitution ( Union Judiciary) Art 124 - 147
e. Ch V of Part V of Constitution (High Courts in the States) Art 214 - 231
f. Art 241 ( HC for Union Territories)
 g. Ch I of Part XI of the Constitution (Distribution of Legislative Power between
the Union and the States i.e. Art 245 -255)
h. Any of the List in the Seventh Schedule.
i. IVth Schedule ( Representations of States in Parliament)
j. Art 368 itself
• Amendment by Special Majority - Those constitutional provisions which do not fall
within the ambit of the first and second process , shall only be amended by the special
majority such as FR , DPSP .
• Introduction of the Constitutional Amendment bill - Like an ordinary bill ,
Constitutional Amendment Bill can be initiated by any House of the Parliament .
• Assent of the President on such a Bill - Unlike an ordinary bill, the President of India
cannot exercise his veto power upon such a bill by virtue of Art 111 because by 24th
Constitutional Amendment Act 1971 in cl (2) to Art 368 the following expression has
been inserted -
"it shall be presented to the President who shall give his assent to the bill"
The above expression confirms that ,
The president cannot exercise his veto power upon such bill.
• Position where deadlock is created between the two houses of the Parliament in
respect of Constitution Amendment Bill - In case of deadlock ,there is a provision for
joint sitting of both the houses, but it is not applied in case of Constitutional
Amendment Bill and therefore in such a situation , the proposed Constitutional
Amendment Bill goes in a dormant position.