Cg Notes.docx

Center-State Relations ....................................................................................................................................... 4 I. Doctrine of Territorial Nexus: ................................................................................................................. 4 a) Wallace Brothers and Co. v Commissioner, Income Tax ...................................................................... 4 b) Tata Iron and Steel CO. v State of Bihar .............................................................................................. 4 c) Charu Sila Dasi v State of Bihar (IMP) ................................................................................................. 5 II. Doctrine of Colorable Legislation .......................................................................................................... 6 a) State of Bihar v Kameshwar Singh ....................................................................................................... 6 b) K.C. Gajapati Narayan Deo v State of Orissa ....................................................................................... 7 c) Union of India v H.S. Dhillon .............................................................................................................. 8 I. Doctrine of Repugnancy .......................................................................................................................... 9 a) Vijay Kumar Sharma v State of Karnataka (E) .................................................................................... 11 b) Second ITC decision (ITC Ltd. v Agricultural Produce Market Committee, 2002) ............................. 11 a) Zaverbhai v State of Bombay (E) ....................................................................................................... 13 b) Tikaramji v State of UP ...................................................................................................................... 13 c) Hoechst Pharmaceuticals v State of Bihar .......................................................................................... 13 d) M Karunanidhi v Union of India ....................................................................................................... 14 e) Deep Chand v State of UP ................................................................................................................. 15 II. Administrative Relations ...................................................................................................................... 15 III. Financial Relations.............................................................................................................................. 15 Module 2- Executive ......................................................................................................................................... 16 I. President (Arts 52-62 and 70-72) .......................................................................................................... 16 II. Vice President (Arts 63-69 and 71) ...................................................................................................... 18 III. Executive Power of the Union (Art 73) .............................................................................................. 18 IV. Council of Ministers + Conduct of Govt Business (Arts 74,75,77,78) .............................................. 18 V. Case Law for the Executive Power of the Executive ........................................................................... 19 a) K.M Nanavati v State of Bombay ....................................................................................................... 19 b) Khehar Singh v UOI .......................................................................................................................... 19 c) Kuljit Singh Case v Lt. Gov of Delhi .................................................................................................. 20 d) Maruram v UOI ................................................................................................................................. 20 e) Epuru Sudhakar v Gov of AP ............................................................................................................ 20 f) Devendra Pal Singh v NCT of Delhi .................................................................................................. 21 VI. Legislative Power of the Executive (Arts 123 And 213) .................................................................... 21 a) A.K. Roy v UOI ................................................................................................................................. 22 b) T. Venkata Reddy and K. Nagaraj ...................................................................................................... 22 c) S.R. Bommai v UOI ........................................................................................................................... 23 d) B.C Wadhwa v State of Biahr ............................................................................................................. 23 e) Krishna Kumar v State of Bihar ......................................................................................................... 23 VII. Judicial Power of the Executive (Arts 72 and 161) ........................................................................... 24 VIII. Office of the Governor ..................................................................................................................... 24 a) B.P. Singhal v UOI ............................................................................................................................. 24 b) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly ........................................ 27 Module 3: The Parliament ................................................................................................................................. 28 I. Rajya Sabha ........................................................................................................................................... 28 1

a) Kuldip Nayar v UOI .......................................................................................................................... 28 II. OFFICE OF PROFIT ........................................................................................................................... 30 a) Shibu Soren v Dayanand Sahay .......................................................................................................... 30 b) Biharilal Dobre v Roshan Dobre ........................................................................................................ 30 c) Satu Charla Raju v V Pradeep Kumar Dev ......................................................................................... 31 d) Jaya Bacchan v UOI ........................................................................................................................... 31 e) Pranab Mukherjee Case ...................................................................................................................... 32 III. DEFECTION ...................................................................................................................................... 32 a) Kihoto Hollohan ................................................................................................................................ 32 IV. Powers and Privileges ......................................................................................................................... 34 a) P.V. Narasimha v State ....................................................................................................................... 34 b) Dr. Jatish Chandra Ghose v Hari Sadhan Mukherjee.......................................................................... 35 c) Suresh Chandra Banerji v Puneet Goala ............................................................................................. 35 d) M.S.M Sharma v Sri Krishna Sinha .................................................................................................... 36 a) Raja Ram Pal v Hon’ble Speaker, Lok Sabha (IMP) ............................................................................ 36 V. Art 107- legislative procedure.............................................................................................................. 37 a) Manoj Narula v UOI .......................................................................................................................... 38 Freedom of Religion- Not there ........................................................................................................................ 42 a) Commissioner Hindu Religiois Endowments v Srilakshmendra Tirth Swamiya .................................. 42 b) Revd. Stanislaus ................................................................................................................................. 42 c) Church of God Full Gospel Society ................................................................................................... 42 d) Acharya Jagdhishvaran.. v Commisione rof Police, Calcutta .............................................................. 42 e) Commisioner of Police v Acharya… .................................................................................................. 43 f) Bijoy Emmanuel v State of Kerala ...................................................................................................... 43 g) S.P Mittav v UOI ............................................................................................................................... 43 The Judiciary ..................................................................................................................................................... 44 I. Original Jurisdiction-Contempt of Court ............................................................................................... 44 a) C.K. Daphtary v O.P Gupta ............................................................................................................... 44 b) P.N. Duda v P. Shiv Shankar ............................................................................................................. 44 c) Delhi J. Service Asscn v State of Gujarat ............................................................................................ 45 d) Income Tax Appellate Tribunal v B.K. Agarwal ................................................................................. 45 II. Original Jurisdiction-Art 32 ................................................................................................................. 46 III. Original Jurisdiction-Art 131 .............................................................................................................. 46 a) State of Bihar v UOI .......................................................................................................................... 46 b) State of Rajasthan v UOI ................................................................................................................... 46 c) State of Karnataka v UOI ................................................................................................................... 47 IV. Appellate Jurisdiction-Normal............................................................................................................ 47 a) Konkan Railway v Rani Construction (appeal by special leave)- Overruled ......................................... 47 b) S.B.P and Co. v Patel Engineering Ltd ............................................................................................... 48 V. Appellate Jurisdiction- Tribunal .......................................................................................................... 48 c) Bharat Bank v Employees of Bharat Bank .......................................................................................... 48 d) Jaswant Sugar Mill v Laxmi Chand ..................................................................................................... 49 e) Gujarat Steel Tubes v Mazdoor Union ............................................................................................... 50 2

f) L. Chandra Kumar v UOI .................................................................................................................. 50 VI. Advisory Jurisdiction- 143 ................................................................................................................. 51 a) In re Kerala Edu Bill- ......................................................................................................................... 51 b) In re Berubari, .................................................................................................................................... 51 c) In re Keshav Singh: ............................................................................................................................ 51 d) In re Cauvery: .................................................................................................................................... 52 e) In re Ram Janmabhumi: ..................................................................................................................... 52 f) Third Judges’ Case .............................................................................................................................. 52 VII. Court’s Power to do Complete Justice .............................................................................................. 52 a) Rupa Ashok Hura v A Hura ............................................................................................................... 52 VIII. Writ Jurisdiction............................................................................................................................... 53 IX. Appointment of Judges ....................................................................................................................... 55 a) S.P. Gupta v UOI-First Judges’ Case: ................................................................................................. 55 b) Supreme Court Advocates –on-record Asscn v UOI (1993) (2nd Judges’ Case) ................................... 55 c) In Re: Special Reference 1 of 1998 (3rd Judges’ Case) .......................................................................... 57 d) Supreme Court Advocates –on-record Asscn v UOI (2016) (NJAC Judgment).................................. 57 Amendability ..................................................................................................................................................... 59 Taxation Powers: Trade and Commerce and Intercourse ................................................................................ 60 A. Atiabari Tea Co. v. State of Assam [(1961) 1 SCR 809] ...................................................................... 60 B. Automobile Transport Ltd. v. State of Rajasthan and Ors. [(1963) 1 SCR 491] .................................. 62 C. State of Mysore v. H. Sanjeeviah [(1967) 2 SCR 361] ......................................................................... 62 D. Jindal Stainless Steel Co. v. State of Haryana and Ors. [ ..................................................................... 63 Emergency Provisions ....................................................................................................................................... 64 I. National Emergency .............................................................................................................................. 64 a) ADM Jabalpur v Shiv Kanth Shukla (overruled) ................................................................................. 64 a) Bhut Nath v State of West Bengal ...................................................................................................... 65 II. State Emergency................................................................................................................................... 65 a) BJ Anand v President of India ............................................................................................................ 66 b) S.R. Bommai v UOI ........................................................................................................................... 66 c) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly ........................................ 67

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CENTER-STATE RELATIONS Article 245 (1) Parl has juris to make laws for entire terr of Ind and State for theirs own terr. (subject to Const (2) If Indi man goes abroad and commits bigamy, he can be punished. (laws have extraterritorial operation)  What happens when the law is made the State? -as a general rule it doesn’t have extra-terr operation.

I. DOCTRINE OF TERRITORIAL NEXUS: 

There is an exception to the above point: Doctrine of Territorial Nexus (exception w respect to states) - You are resident of Rajasthan. You own prop here and in MP. Land leg by Raj- reqs you to compute entire land owned for purposes of land ceiling. Land owned in MP is also taken into account- this is known as extra territorial jurisdiction. 1. There has to be connection between state whose leg is making the law and the object or person on whom the law is having effect, residing outside the territory of the state. 2. Above not enough in itself, also need to ensure connection is substantial. Two ways to determine: a) It has to be real as opposed to be an illusory connection. Not just the illusion of a connection. b) Is the connection actually pertinent/relevant. If you have land in Raj and land in MP, and the leg is related to land ceilings then obviously it has a pertinent connection, so land which you live on etc is valid not say car you lend to someone else, this wont have a pertinent connection (Summed up as real + pertinent) (on fact to fact basis, court will decide the substantiality)

a) Wallace Brothers and Co. v Commissioner, Income Tax   

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The concept of article 245 was borrowed from a British-era law. Govt of Ind Act 1935- federal scheme started (borrowed the three types of lists etc.) First federal form of India. WB Co. was reg in Eng (control and management exclusively situated there) and was partner in a firm that was doing business in Ind (partnership firm). Major part of its profits accrued from India. The tax auth wanted to tax the inc of this CO Argument of WB Co. was that the Brit Ind inc tax leg can’t have extra terr op. Privy Council asks where the Co. is doing business- it is partner in firm doing business in Ind (real and pertinent connection) thus alowed the authorities to tax the Co.(taxed the entire income, not just income accruing from India). This is because there was sufficient territorial nexus between the company and India for this purpose.

b) Tata Iron and Steel CO. v State of Bihar   

Bihar Sales Tax Act 1947 Sales tax- you become liable to pay sales tax when goods are sold (on the incidence/point of sale). Extra-territorial op as well as the Act says that sales tax will be levied when prods manu in state of Bihar and say you are residing in MP and they are residing in Bihar or the Contract per se is entered into in Bihar although actual sale takes place outside then this Act would apply. 4

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The Court mentioned the two factors that there has to be connection and it should be real and not illusory and should be pertinent. The goods are manu in Bihar so there is a real and pertinent connection (stretching the connection a bit)(the test is very subjective)

c) Charu Sila Dasi v State of Bihar (IMP) 

CSD was a woman who worshipped Lord Krishna. Her husb had left her several properties which were covered by a trust.  Trust deed was executed on 11 March, 1938. CSD was the widow of Akshay Kr Ghosh who was a resident of Calcutta.  She resided in Charu Niwas, a house in Bihar  The properties mentioned in various Schedules A, B, C, D mentioning where the properties are: C- Charu Niwas D- property in Calcutta  Some buildings were situated in Kolkata, some land too.  She has installed a deity called Ishwar Shri Gopal in her house.  There was a guru called Shri Shri Balachandra Brahmachari .  In the sale deed she wanted to est a hosp for hindu females in the name of her husband  She had been erecting two temples, one for her deity and one for guru + the hospital  Wincluding CSD, who governed the plot.  The Court discussed the nature of the puja etc. They said it is not a personal puja, a temple was being constructed so it might be open to the public.  The above is relevant as the leg didn’t apply to private places of worship (The leg: Bihar Hindu Religious Trusts Act 1950). It was made for better management and reg of these public trusts. Particular hindu religious trusts so that there is no mismanagement to these trusts where public goes and worships.  Q was whether this leg could govern the prop in Kolkata as that would give It an extra terr operation.  She was residing in Bihar (she and sons were trustees), she had prop under trust in Bihar and KOl, 1. the trust deed had been entered in to in Bihar and 2. the trustees (in Bihar) managed the prop and entered into sale thus was held there was real ad pertinent connection.  Relevant paras- 14 (extent of appl of Act) (here it is clear the purpose is pres of prop and better admin of hindu rel prop) (prop belongs to trust therefore there is a real and pertinent connection)(sent iGHHn mail)  the case refers Bombay v RMDC and RMDC v UOI (Prize Competitions Act, 1955, newpaper called Sporting Start pub in Bang and circulated in Bom and therefore the prize comp act applies to it, relying on that extra terr operation applies , the same test was applies, court says they don’t see why it cant be applied here, in RMDC there was wide circulation in Bombay and all activities involving pure skill, a gambler would undertake will happen in Bombay thus there is a pertinent connection.  Relying on decisions of Tata Iron and Steel; and principles of RMDC case,  RMDC test applied here- sufficient territorial nexus and can’t strike down on grounds of extra territoriality. The rel endowment was itself in Bihar and trustees functioning there, the Act applies there. Thus it can’t be struck down. 5

II. DOCTRINE OF COLORABLE LEGISLATION    

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Based in the maxim- what cannot be done directly, cannot be done indirectly. The doctrine becomes applicable when the legislature seeks to do something indirectly what it cannot do directly. Refers to competence of leg to enact a particular law. If the impugned leg falls within the competency of the legislature then the question of doing indirectly what cannot be done directly does not arise. Does not involve questions of bona fides or mala fides, competence is imp, motive is irrelevant. Invalid even if enacted with the best of motives if incompetent. If competent and bad motive then that is also valid. Parliament and States have their own sphere of power. Transgression upon limits imposed by Parliament can be patent, manifest or direct; or it might be disguised, covert or indirect. To the latter case, the term ‘colorable legislation’ is applied. Underlying idea: apparently, a legislature In purports to act within the limits of its power, yet in substance and reality, it has transgressed these limits by taking resort to a mere pretense or disguise. In this case, the legislation would be invalid. Camouflaging something to make it appear to be within the legislative competence. The extent of encroachment is an element for determining whether the impugned Act is a colorable piece of legislation. Can be characterized as a flaw on the Constitution because no legislature can violate the same by applying indirect methods To decide whether or not there has been a transgression, what is material is the pith and substance; the true nature and character of the leg in question and not the outward or formal appearance.

a) State of Bihar v Kameshwar Singh   

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Bihar Land Reforms Act E42, l3, sch7- principles on which compensation for property acquired is to be determined and the form and manner in which that compensation is to be given. Section 23 of the Act, laid down the method of computing net income of an estate or a tenure which is the subject matter of acquisition under the Act. In arriving at net income, certain deductions are to be made from the gross asset and the deductions include among others, revenue, cess and agricultural income tax payable in respect of the properties and also the costs of management. - Section 23(f) provided another item of deduction under which a sum representing 4 to 12 1⁄2% of the gross asset of an estate was to be deducted as costs of works for benefit to the raiyat. Section 4(b) provided that all arrears of rent, which had already accrued due to the landlord prior to the date of vesting, shall vest in the State and the latter would pay only 50% of these arrears to the landlord. [provided for payment of compensation on the basis of the income accruing to the landlord by way of rent. Arrears of the rent due to the landlord prior to the date of acquisition were to vest in the State and half of these were to be given to the landlord as compensation.] Both these provisions were purported to have been enacted under e42. Court held that the item of deduction provided for in Section 23(f) was a fictitious item wholly unrelated to facts. There was no definable pre-existing liability on the part of the landlord to execute works of any kind for the benefit of the raiyat. What was attempted to be done, therefore, was to bring within the scope of the legislation something which not being existent at all could not have conceivable relation to 6

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any principle of compensation. This was, therefore, held to be a colourable piece of legislation, which though purporting to have been made under Entry 42 could not factually come within its scope. Further, the net result of section 4(b) was at the State Government was given the power to appropriate to itself half of the arrears of rent due to the landlord without giving him any compensation whatsoever. - It was held that ‘taking of whole and returning half means nothing more or less than taking half without any return and this is naked confiscation, no matter whatever specious form it may be clothed or disguised. - The impugned provision therefore, in reality, does not lay down any principle for determining the compensation to be paid for acquiring the arrears of rent.’ The Court stated that e42 of l3 only described a legislative head and in deciding the competency of legislation under this entry, the Court cannot look into the justice and the propriety of the principles of compensation, however, it must necessarily be a principle of compensation, whether just or unjust. And there could be no principle of compensation based on something unrelated to facts, which was the present case. It was held invalid because on legislating upon those topics, the State had gone beyond the ambit of e42, l3, sch 7 of the Constitution under which it was purported to have been enacted. It is not that the State was encroaching upon a Union power. As it did not come under the relevant entry, the consequence was that half of the arrears of rent and 12.5% of the gross assets of an estate was taken away, otherwise than of authority of law.

b) K.C. Gajapati Narayan Deo v State of Orissa (do from written)  Orissa Estates Abolition Act 1952.  The Orissa Estates Abolition Act as amended, follows in the main, the pattern of similar Acts of the other States passed for the same purpose. It provides for the transference of the ownership of the estate of any landed proprietor from him to the State 6n the issue of a notification for such estate. It authorizes the State Government to take over the possession and management of the estate and converts the previous raiyat of the proprietor into a raiyat of the State. It also transforms the temporary cultivator or tenant of the proprietor into a tenant of the State. It provides for payment of compensation to the dispossessed proprietor on certain principles prescribed by it.  Computation of the net income, gross assets and deductions to be made to arrive at the income  Challenge related to the payment made to the intermediaries.  First Amendment: slab decreased to 20,000 (Agricultural tax is to be paid on slabs similar to income tax)  Second Amendment: slab decreased to 15,000  The independent objection to the second, viz., Orissa Act 15 of 1950, is that the said Act, in so far as it adopted the extremely high rate of taxation of twelve annas six pies in the rupee for slabs above one lakh and fifteen thousands, is virtually confiscatory as well as discriminatory at least in respect of that high slab, and has exceeded the permissible limits of taxation.  Revising the rate of taxation in a very small period of time.  State of Bihar v. Kameshwar Singh. 7

 The doctrine of colourable legislation dissolves itself into the competency of a particular legislature to legislate. If the legislature lack competency, the motive becomes irrelevant.  Parliament and States have their own sphere of power. Transgression upon limits imposed by Parliament can be patent, manifest or direct; or it might be disguised, covert or indirect. To the latter case, the term ‘colorable legislation’ is applied.  Underlying idea: apparently, a legislature In purports to act within the limits of its power, yet in substance and reality, it has transgressed these limits by taking resort to a mere pretense or disguise. In this case, the legislation would be invalid  Leg cannot violate constitutional prohibitions by employing an indirect method. The inquiry must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the pow of legislative authority c) Union of India v H.S. Dhillon 

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Section 24 of the Finance Act, 1969 that amended the Wealth Tax Act of 1957. - included the capital value of the agricultural land for the purposes of computing net wealth - HC held that this legislation was beyond the legislative competence of the Parliament. l2, sch 7 e49- taxes on land and buildings (HC held that the Act didn’t fall under this entry either) article 248 and l1: (the appellants argued that the Act fell under the following entries and the article) - e86- Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies. - e97: Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists. Dispute as to whether the Parliament has residuary power when it comes to computing capital value of agricultural land for computing net wealth. Two questions need to be answered when dealing with the validity of the Act: 1. whether the impugned Act is legislation wrt e49 l2? 2. if it is not, is it beyond the legislative competence of Parliament? Residuary powers have been granted to the Center through art 248 and e97 l1, no doubt as to this. Dispute regarding the extent of residuary powers of the Center. The respondents in this case urged that since agricultural land was specifically excluded from e86 l1, these in essence prohibited Parliament from including capital value of agricultural land in any law levying tax on capital value of assets. The exclusion formed a ‘matter’ wrt e97 l1 and therefore, agricultural land cannot be included within it. The Court observed that there are several other matters that have been specifically excluded from l1, like e84 (excise on alcoholic liquors for human consumption and on opium, Indian hemp and other narcotic drugs and narcotics), e82 (taxes on agricultural income have been excluded from the ambit of taxes on income), etc. All of these have been included within the legislative powers of the State under l2. Agricultural income- e46 l2; duties of excise- e84 l1. However, the same is not the case with taxes on capital value of agricultural land, which has been excluded in e86 l1 but doesn’t fall under any entry in l2. Therefore, it cannot be legitimately inferred that taxes on the capital value of agricultural land were designedly excluded from Entry 97, List I. The Court found it impossible to limit the width of article 248 and e97 l1 by the words ‘exclusive of agricultural land’ in Entry 86, List I. The words ‘any other matter’ in e97 l1 was held not to have reference to topics excluded in entries 1-96 of l1. 8

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The Court clarified that an entry in any list should be taken in its whole sense. Therefore, the matter in Entry 86, List I, is the whole entry and not the Entry without the words ‘exclusive of agricultural land’. The Court illustrated this point by stating that there were multiple entries relating to Preventive Detention and these were for maintenance of public order, for defense, etc. These entries are not about Preventive Detention only but it is the whole entry. It would be incorrect to say all these entries deal with the same matter. Similarly, it would be erroneous to treat Entry 82, List I (taxes on income other than agricultural income) as containing two matters, one, tax on income, and the other, as other than agricultural income. Article 248 is framed in widest possible terms- therefore the residuary powers should also be widest possible. If matter is not in l2 then it can be legislated by the Center, no need to look at l1. Court cannot cut down the width of the wide words of article 248. Several CADs were cited in the judgment as well to prove the Courts’ point, The three lists are cxhaustive in nature. After the above conclusion, the Court came to the question as to whether the impugned Act is a law with respect to Entry 49, List II. The Court examined several case laws to answer this question. The requisites of a tax under Entry 49, List II, was summarized by the Court as: (1) It must be a tax on units, that is lands and buildings separately as units. (2) The tax cannot be a tax on totality, i. e., it is not a composite tax on the value of all lands and buildings. (3) The tax is not concerned with the division of interest in the building or land. In other words, it is not concerned whether one person owns or occupies it or two or more persons own or occupy it. Basically this tax isn’t a personal tax, but one on property. The Court concluded that nature of the wealth tax imposed under the Wealth Tax Act, as originally stood, was different from that of a tax under Entry 49, List II, and it did not fall under this entry. Therefore, the Act was not a law wrt e49 l2 and thus not a tax imposed under the relevant entry. In S. Satpal and Co. v Lt. Gov. Delhi, the Court held that if a statute is found to be invalid on the grounds of legislative competence, it does not permanently inhibit the legislature from reenacting the same if the power to do so is properly traced and established. In such a situation, it cannot be said that the subsequent legislation is merely a colourable legislation or a camouflage to re-enact the invalidated previous legislation.

I. DOCTRINE OF REPUGNANCY  Article 254(1) - prov of law made by State repugnant to prov of law made by Parl which the latter is competent to enact or to any prov of existing law wrt a matter on the Conc List - subject to provisions of (2) - law made by Parl whether passed before or after that of the State or the existing law will prevail. - State law to the extent of repugnancy, void.  (2): - if a State Law is repugnant to Central law but has been reserved for consideration by the President, then it shall prevail in that State. 9

However, Parl can enact a law at any time, adding to, amending, varying or repealing the law so made by the State leg. 254(1) If any prov is repugnant (in direct conflict) with a law that parliament is competent to enact or to any existing law wrt one of the matters in the Conc List, then Parliamentary or existing law prevails over the State law. Therefore it means repugnancy wont only occur in concurrent list, it can occur in all lists. Existing law- pre-constitutional law or existing law made prior to the state. (law made by parliament will prevail) Repugnancy b/w two laws when both the laws are applied to the same facts and conflicting results are produced. Contradiction in the actual terms of the statute. Parliamentary law prevails over the state law, it doesn’t matter whether it was enacted before or after the State law. To the extent of repugnancy, the State law would be void. Most common appl of the provision- central and state law happen to be of the same matter in the Conc list and there is repugnancy b/w them. Repugnancy b/w two statutes arises when they are fully inconsistent w each other and have absolutely irreconcilable provisions and if the laws made by Parliament and state legislations occupy the same field. Repugnancy has to be there in fact and not based upon a mere possibility. The SC has said that every effort should be made to reconcile the two enactments and construe both so as to avoid them being repugnant to each other. If two enactments operate in different field w/o encroaching upon each other then there would be no repugnancy. Because of 254(1), the pow of the Parl to legislate wrt matters in l3 is supreme. Overriding effect. If a State makes a law wrt a matter in the State List, then there is no question of repugnancy b/w it and a Central law pertaining to a matter in the Central or Conc List. The view is based on the rule of pith and substance. If a State Law is enacted wrt a matter in L1, it is void, but if it falls within l2 then its incidental encroachment into the Conc List will not render it invalid. Where the paramount legislation does not purport to be exhaustive or unqualified, there is no inconsistency if another law introduces any qualification or restriction. This cannot be said to be repugnant to the provision in the main or paramount law. Before coming to the conclusion that there is a repeal by implication, the Court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together. Although most of the SC cases till now have dealt with repugnancy and article 254(1) only wrt the Con List, however, it could also be applicable when the laws fall in different lists and yet are inconsistent to some extent. - eg: the Parliament under article 253 can make laws wrt the State list to implement a treaty and this law could come in conflict an already existing State law. In this case, the broader principle of article 254(1) has to be applied in reaching the obvious conclusion that the Central law would prevail over the State law. - Examples where this interpretation of article 254(1) has been applied- Hingur Rampu Coal Co. v State of Orissa and Srinivasa Raghavachur v State of Karnataka. Under article 254(1), the question is not whether a statute falls under this entry or that but whether a State law comes into conflict with a Central law or not. -

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It has been decided by the SC that for the application of this article: 1. there must be repugnancy b/w state law and law made by Parliament 2. if there is repugnancy, the State leg will be void only to the extent of repugnancy

a) Vijay Kumar Sharma v State of Karnataka (E)      

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E42 l3- acquisition and requisition of property E35 l3- mechanically propelled vehicles including principles on which taxes on such vehicles are to be levied Karnataka Contract Carriages (Acquisition) Act 1976, enacted under e42 l3 Thereafter, Parl enacted Motor Vehicles Act, 1988, falling under e35 l3 providing grant of contract carriage permits. Whether s20 of the Karnataka Act was repugnant to s73, 74 and 80 of the Central Act? Majority opined that under art 254, repugnancy can only arise in the Con List. In art 254(1) it is clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Conc List, which is not so in the instant case as the two laws dealt with different matters of legislation. One of the first things to be looked at is whether the two Acts in question, cover or relate to the same subject matter and to determine this, the rule of pith and substance ought to be applied so as to find out the dominant intention of the two Acts. Both should substantially be on the same subject matter in order to attract 254(1).

b) Second ITC decision (ITC Ltd. v Agricultural Produce Market Committee, 2002) ASK SOMEONE FOR THESE NOTES!!!  Central Act: Tobacco Board Act enacted under e52 l1  State Act: Agricultural Produce Markets Act enacted under e27 l2.  The Court held that the two Acts collide and cannot be operated simultaneously. Therefore, necessarily, the Central Act, the Tobacco Board Act, would prevail and the State Act so far as it relates to the levy of fee for sale and purchase of tobacco within the market area must be held to go out of the purview of the said Act.  Here there was a contradiction in the actual terms of the statute.  Clarified further by the second ITC decision- since tobacco is controlled industry, parl has pow to make leg wrt tobacco industry. When parliament covers the entire field of legislation, you apply occupied field.  “doctrine of intended occupation” - if parl has covered entire field of leg, in that situation you do not automatically declare state law as void. You see if in that occupied field, can state law co-exist w the occupied field. - If case is intended occupation- where parl intended to legislate everything about that subject, in that situation, the state law cannot survive.

 There are 3 situations (tests of repugnancy): Both law made by Parl and state seem to about similar subject matter- in that case apply doctrine of pith and substance. If in pith and substance, both laws occupy substantially the same subject matter then a) Direct Conflict

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first try to harmoniously construct the laws, can they survive together? If that’s not possible, where there’s a non-reconcilable conflict, where one says do X and the other says don’t do X then repugnancy applies and that’s when you apply repugnancy and the union law prevails, the state law is void to the extent of repugnancy. - impossible to obey one w/o disobeying the other b) Occupied Field - May not be an apparent collision or conflict b/w the two provisions, yet there may be repugnancy because they cover the same field. - Parliament has occupied entire field of leg and state is entering into that field, then need to check that whether within that occupied filed, state law can survive (this is primarily in the concurrent list as that Is only where the state’s can enter) - Zaverbhai case, Deep Chand case c) Intended Occupation - no direct conflict in the two provisions nor does the Act directly take away a right conferred by the other, yet there may be repugnancy because it may be in conflict w the intention of the dominant law to cover the whole field. doctrine of intended occupation, whether the extension of pow over a subject was intentional (whether Parl intended to cover the entire field of legislation) If parl had intended to occupy, then whatsoever be the case, the state law will be void. In the occupied case even if law can be saved or harmonized, you sill don’t save it.  repugnancy is always a last resort 254(2)  254 (2) is an exception to the general rule in 254(1)  if prior assent is taken then that law will prevail in the territory of the state.  There may be some peculiar or local circumstances prevailing in a State making some special provision, and not the uniform Central law, desirable on the matter. This article introduces an element of flexibility.  The final say rests with the Center, which ultimately decides whether or not the Central law will give way to the State law.  State law will prevail only to the extent of inconsistency; it will not override the entire Central law.  The later legislations have to be on the same matters, cannot be other and distinct matters of a cognate and allied character.  This article doesn’t operate when the two Acts operate in different fields (only matters in the Conc List)  Article 254(2) operates when the following two conditions apply: 1. There is a valid Central law on the same subject-matter occupying the same field in the Concurrent List to which the State law relates 2. The State legislation is repugnant to the Central law  Therefore, this means that if there is no central law then 254(2) doesn’t operate  254(2) becomes applicable only when the State law is repugnant to an earlier law enacted by Parliament (even if the Parliamentary law is brought into effect later)  When a State act becomes repugnant to a Parliamentary law enacted thereafter, the article wont apply. In this situation, the Parliamentary law would prevail over the State law.  The proviso to 254(2) qualifies the exception contained in this article- enlarges the power of the Parliament (can thus enact legislation repugnant to the earlier state law). However, if the two deal with separate and distinct matters though of a cognate and allied character, the state law is not abrogated. 12

a) Zaverbhai v State of Bombay (E) b) Tikaramji v State of UP  

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U.P. Sugarcane (Regulation of Supply and Purchase) Act of 1953 - regulation of supply and purchase of sugar cane Parl subsequently enacted the Essential Commodities Act, 1955 - s 16(1)(b): any law in force in a state would be repealed “in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity”. Also, cl. 7(1) of Sugarcane Control Order, 1955 also had effect of repealing the UP Act The essential commodities therein comprised inter alia foodstuffs which would include sugar as well as sugarcane and both sugar and sugarcane, therefore, came within the jurisdiction of the Centre The petitioners challenged the constitutional validity of the U.P. Sugarcane (Regulation of Supply and Purchase) Act of 1953 as well as two notifications issued by the State government under this Act, regulating the supply and purchase of sugar cane. They contended that the passing of this Act by the State Legislature was ultra vires its jurisdiction, the subject-matter of legislation being within the exclusive jurisdiction of Parliament and repugnant to the Central Act. The Court held that this section did not repeal the earlier state law as there was no repugnancy b/w the two laws and both could co-exist although they both related to e33(b) in l3. The proviso to 254(2) confers on Parl the pow to repeal a State law only when: 1. there was already a Central law on a matter in the Concurrent List 2. a State then made a law on the same matter inconsistent w the Central law 3. the State law received Presidential assent under 254(2). The SC by literally interpreting the proviso to art 254(2), rules that Parl can repeal a State law only when the above mentioned conditions are fulfilled. If no Parl law was in existence prior to the enactment of the State law on the matter, then the later Parl law cannot expressly repeal the earlier State law; though in case of repugnancy, the Parl law shall prevail to the extent of repugnancy. In this case, there was no Central law in the field when the State law was enacted and so s16(1)(b) could not operate to repeal the UP Act. The UP Act is a substantive law, covering a field not occupied by Parliament. Therefore no question of its containing any provisions inconsistent w a law enacted by Parl could therefore arise. To such a law, the proviso has no application and s16(1)(b) of the Central Act and c7(1) of the Sugarcane Control Order must, in this view, be held to be void. SC also pointed out that under the proviso to art 254(2), pow to repeal earlier law is conferred on parl and the same cannot be delegated to an executive authority (wrt the Sugarcane Control Order, 1955) This judgment removes the idea that Parliament can specifically repeal any State law in the Conc area even if not repugnant to the Central law on that matter

c) Hoechst Pharmaceuticals v State of Bihar 

Bihar Finance Act, 1981 - s5: surcharge of 10% of the total amt of tax payable by a dealer whose gross turnover during a year exceeds Rs 5 lakhs, in addition to the tax payable by him. - S5(3)- no dealer liable to pay a surcharge, in addition to the tax payable by him, shall be entitled to collect the amount of surcharge, 13

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Essential Commodities Act, 1955 - s3(1): manufacturer and producer of goods can pass on the tax liability to the consumer  e54 l2- Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92A of List I.  e33 l3- Trade and commerce in, and the production, supply and distribution of (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;  Challenge is that the state legislature had no legislative competence to enact s5(3) of the impugned Act.  The Court held that the Central and State legislations operate in different and distinct fields. - The State Act is relatable to e54 of l2 - The Central Act provides for the regulation, production, supply, distribution and pricing of essential commodities and is relatable to Entry 33 of List III of the Seventh Schedule  SC relied on the characteristics of sales tax as laid down in S. Kodar v State of Kerala to come to the conclusion that the surcharge imposed upon by the Act was in the nature of a sales tax and therefore it was within the competence of the State legislature to enact sub-section (1) of Section 5 of the Act for the purpose of levying surcharge on certain class of dealers in addition to the tax payable by them.  Thus, when the State legislature had competence to levy tax on sale or purchase of goods under Entry 54, it was equally competent to select the class of dealers on whom the charge will fall. If that be so, the State legislature could undoubtedly have enacted sub-section (3) of Section 5 of the Act prohibiting the dealers liable to pay a surcharge under sub-section (1) thereof from recovering the same from the purchaser.  Question of repugnancy only arises when both legislations occupy the same field wrt matters enumerated in the Conc List and there is a direct conflict b/w the two laws.  No appl of 254(1) in cases of repugnancy due to overlapping found b/w l2 on one hand and l1 and l3 on the other. If such overlapping exists, the State law will be ultra vires due to the non-obstante clause in article 246(1) and the words ‘subject to’ in 246(3). This is failure of State law due to legislative incompetence not repugnancy.  If art 254 is taken as a whole, then we see that (2) makes specific reference only to the Concurrent List. Thus if (2) is to be the guide in determination of the scope of (1), then the article would only refer to the Conc List. (courts have never deviated from this position but incidental remarks have been made by judges to the effect that repugnancy may arise b/w a Union and State law made within the exclusive jurisdiction of Parliament and State legislature respectively. ) d) M Karunanidhi v Union of India     

TN Legislature passed Public Men (Criminal Misconduct) Act, 1974, received presidential assent under art 254(2). Action initiated under this Act against the ex CM, M. Karunanidhi. Act subsequently repealed Question arose whether action could be taken against him under the relevant Central legislation (s161, s471 of IPC and s5(2) read with s5(5)(d) of the Prevention of Corruption Act). Argument against this was that as there was repugnancy b/w Central and State laws and the latter was kept alive due to Presidential assent, under 254(2), the Central law was repealed pro tanto and so when the State law was repealed, the Central laws could not be revived in that State unless re-enacted. 14

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The SC accepted this contention and stated that if a State law is inconsistent with a Central law in a matter on the Concurrent List and is kept alive under art 254(2), then in that State the State law would prevail and the Central law would be overruled in its applicability. The doctrine of eclipse will not apply to the constitutionality of the Central law in such a situation. However, in this case the Court did not find any inconsistency b/w the Central and State laws in the first place. The State law merely created a new and distinct offense with different ingredients, which was in the nature, and purport essentially different from the offenses contemplated under the Central law. It was complimentary to the Central law. Therefore, the Central law was not repealed in the State by the State law and the appellant could be tried under Central law after repeal of State law. The tests of repugnancy were summarized by Justice Fazl Ali in the following propositions: 1. Must be shown that the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field. 2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes 3. Where both the statues occupy a particular field but there is possibility of both of these operating in the same field then no repugnancy arises 4. When there is no inconsistency but a statue occupying the same field seeks to create separate and distinct offenses, no question of repugnancy arises and both the statues continue to operate in the same field.

e) Deep Chand v State of UP

II. ADMINISTRATIVE RELATIONS III. FINANCIAL RELATIONS

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MODULE 2- EXECUTIVE I. PRESIDENT (ARTS 52-62 AND 70-72)  Art 52- President of India  Art 53- exec pow of Union  (1): executive power of Union vested in pres and ex by him - directly or indirectly through subordinate officers - in accordance w the Const  (2): supreme command of the Defense Forces to be vested in the President  (3)(a): cannot transfer to the Pres any function conferred upon Gov of any State or other authority by an existing law. (b): Parl can confer functions on authorities other than the President  Art 54: election of the President by electoral college consisting:  (a): elected members of both Houses of parl  (b): elected members of State Legislative Assemblies  Art 55: manner of election  (1): uniformity in scale of repr of the diff States at the election of the Pres  (2): for securing uniformity b/w the States and parity b/w States and the Union, the number of votes each elected member is entitled to cast is determined by: (a) For State Leg Assemblies: dividing the total state population by the number of elected members of the Legislative Assembly, there will be a quotient. Every elected member will have as many votes as there are multiples of thousand in this quotient. (b) If remainder is 500 or more then the vote of each member is increased by one. (c) For the Houses of Parliament: each elected member will have as many votes as the number obtained by diving the total no of votes assigned to the members of the Leg Assemblies of the States according to (a) and (b) by the total no of elected members of both Houses. - fractions exceeding ½ being counted as one and other fractions being disregarded  (3): system of proportional representation by means of the single transferrable vote - secret ballot  until relevant figures for first census after 2026 have been published, the population is to be based on the 1971 census.  Art 56- term of office  (1): 5 years from the date on which he enters office. Provided that: (a) resign by writing under his hand to VP (b) impeachment due to violation of Const (manner provided in art 61) (c) notwithstanding expiration of term, he shall continue to hold office till successor enters upon his office  (2): resignation to be communicated by VP forthwith to the Speaker of LS  Art 57: eligibility for reelection - if already held office as Pres is eligible for re-election  Art 58: Qualifications:  (1) eligibility: (a) citizen of India 16

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(b) 35 or more years old (c) qualified for election as a member of the LS (2) cannot be holding office of profit under GoI or Govt of any State or local or other auth subject to control of the said Govts (Pres/VP/Min not included) Art 59: Conditions of Pres’s Office (1): not a member of either House of Parl - if a member of either House is elected Pres, deemed to have vacated seat from the day he entered into his Office (2): shall not hold Office of Profit (3): - Use official residences w/o payment of rent - Entitled to emoluments, allowances, privileges as determined by Parl (4): emoluments and allowances not be diminished during his term Art 60: Oath - for every person acting or discharging functions of Pres - in the presence of CJI (in his absence, senior most Judge of SC available Art 61: Impeachment procedure (1): Charge to be preferred by either House of Parl (2): No charge to be preferred unless: (a) - charge contained in reso which is moved after at least 14 days’ notice in writing - signed by 1/4th or more members of that House (b) reso passed by 2/3rd majority (3): Other House shall investigate the charge or cause the charge to be investigated - Pres has the right to appear and be represented at such investigation (4): if the investigating House passes a reso by 2/3rd majority declaring the charge against the Pres to be sustained, it will have the effect of removing the Pres from his Office as from the date on which the reso is so passed. Art 62: election to fill vacancy and term of office of person elected to fill casual vacancy (1): election to fill vacancy caused by expiration of term of office to be completed before the expiration of the term (2): if vacancy due to death, resignation or removal or otherwise, election to be held immediately, in no case not later than 6 months - the elected person will hold office for a full term Art 70: Discharge of President’s functions in other contingencies - Parl may make provs as it deems fit for the discharge of the functions of the Pres in any contingency not provided. Art 71: Matters related to election of Pres and VP (1) doubts and disputes arising out of their election to be inquired into by SC- decision final (2) if elect ion decl void by SC then acts done by him will not be invalidated (3) Parl may make any law relating to election of Pres or VP (4) election of Pres not to be called into question on the grounds of vacancy in the electoral college Art 72: Pow to grant pardons/ suspend remit or commute sentences  (1) Pes has pw to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense (a) in all cases where punishment or sentence is by a Court Martial 17

(b) all cases where punishment is for an offense against any law relating to a matter to which exec pow of the Union extends (c) sentence of death  (2) (1)(a) shall not affect the pow of an officer of the Armed Forces of the Union to suspend, remit or commute the sentence passed by a Court martial  (3) (1)(c) shall not affect the pow to suspend, remit or commute a death sentence of the Gov of a State [Reprieve- reduce the punishment in view of the specific facts and circumstances of the convict (death sentence of pregnant lady changed to life imprisonment) Respite- sentence delayed for a period of time Remission- punishment reduction w/o changing the nature of punishment Commutation- punishment reduction w changing the nature of punishment (changing from death sentence to life imprisonment) Pardon- clean slate, like the person didn’t commit the crime at all Whether it falls within exec powers of gov or president depends under which law the act falls under (eg- FERA is under Union law so under exec power of the president) Pardon is only a process that happens after all judicial recourse is over]

II. VICE PRESIDENT (ARTS 63-69 AND 71) III. EXECUTIVE POWER OF THE UNION (ART 73) 

Art 73: Extent of executive powers of the Union  (1) (a) matter wrt which Parl has pow to make laws (b) ex of such rights, auth and juris as are exercisable by the Govt of Ind by virtue of any treaty and agreement - provided that the matter doesn’t extend to the pow of the State Leg (State also has power to make laws on that matter)  (2) State or officer of the same can continue to exercise exec pow wrt matters in which Parl has the authority to make laws if it was doing so immediately before the commencement of the Const (unless otherwise provided by parliament)

IV. COUNCIL OF MINISTERS + CONDUCT OF GOVT BUSINESS (ARTS 74,75,77,78) 

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Art 74: Council of Min  (1) - CoM to aid and advise President - latter in exercise of his functions to act in accordance with such advise - provided that Pres can req CoM to reconsider the advice but has to act in accordance after reconsideration  (2) advise tendered not to be inquired into by any Court Art 75: Other provisions as to Minsters  (1) PM appt by Pres and other Mins by Pres on advise of PM  (1A) Total no of mins including PM not to exceed 15% of the total strength of the House  (1B) A member of the House disqualified from being so under para 2 of 10 th Schedule shall be disqualified to be appt as min for duration of that period  (2) Mins shall hold office during the pleasure of the Pres 18

 (3) CoM collectively responsible to the LS  (4) President shall administer oath of office and secrecy – according to third schedule  (5) Min not a member of either House for 6 consecutive months shall cease to be Min at the expiration of that period. -

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Collective resp to the LS- not only jointly and severally but also individual resp. (not specifically mentioned but is part of the convention) Pleasure of pres can be ex when a particular Minister isn’t acting according to the oath

 (6) salary determined from time to time by Parliament Art 77: Conduct of business of the Govt of India  (1) all exec action of Government to be expressed to be taken in the name of the President  (2) orders and instruments made and executed by the President to be authenticated by the specified rules and the validity of the same cannot be called into question on the rounds that it is not an order or instrument of the President.  (3) Pres shall make rules for convenient transaction of business of the GoI and for allocation among Mins of the said business

- PM acts as connecting link b/w pres and council of ministers 

Art 78: Duties of PM (a) To communicate to Pres all decisions of the CoM relating to admin of affairs of the Union and proposals for leg (b) to furnish such information as given above that the Pres may call for (c) if Pres requires submit for consideration of the Council any matter for which decision is taken by a Min but not considered by the Council

V. CASE LAW FOR THE EXECUTIVE POWER OF THE EXECUTIVE a) K.M Nanavati v State of Bombay   

Nanavati was sentenced by HC but before going to SC, pardoned by Vijayalakshmi Pandit (governor) Challenge- can she grant pardon before case goes to SC Held: unless final proceedings are done, the Pres/Gov cannot exercise power of pardon

b) Khehar Singh v UOI       

Death sentence confirmed by HC and SC and presented a petition to the President to pardon him. Asked for his representative to be allowed to meet the Pres. The Pres rejected the appl w/o going into the merits of the case. This matter went to the SC that the President didn’t go into it w/o any review and outright rejection. UOI said the Pres isn’t a judicial body to hear cases, etc., it is totally his discretion The Court refused to lay down guidelines and it is totally the discretion of the President No right to insist on presenting an oral argument before the President 19

c) Kuljit Singh Case v Lt. Gov of Delhi    

Two murderers Ranga and Billa and had killed two children brutally. Snatched them from the family etc., threw them into the well Their death sentence was confirmed by the HC and SC also confirmed, they sent a mercy petition to the Pres and automatically rejected it w/o stating any reasons The question was whether he was bound to state reasons SC guideline- by art 72 he can grant pardon, the principles of administrative law and natural justice says that a reason needs to be given. (pres supposed to act fairly and reasonably)

(till here here was no clear guideline, subsequently, we see some guidelines emerging) d) Maruram v UOI  

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An amendment in the CrPC, 1978 (addition of s433A) there are two classes of persons who have been given life imprisonment: a) people who could have been given death penalty b) those who were sentenced to death and whose punishment commuted to life imprisonment. For the latter, by this amendment, there was a mandatory term that they have to spend 14 years. There was a challenge that this conflicts w the president and governor’s power as they had the power to give him a sentence of less that 14 years In this case, the court came w a guidance that pres and gov doesn’t ex pow independently but w aid and advice of min This pow can’t be ex arbitrarily and mala fide. Natural justice. No power is absolute His oath has a limitation Religion, caste, politics irrelevant The court suggested specific guidelines need to be laid down

(the next case, clear guidelines were laid down, based on the S.R. Bommai decision) e) Epuru Sudhakar v Gov of AP      1. 2. 3. 4. 5. 6.

A cong worker murdered a person from the Telugu Desum Party The HC and SC confirmed death sentence and the governor pardoned it The son challenge that the Gov was earlier a member of the UPA govt and he has granted this pardon on the basis of pol grounds The HC agreed to the contention and it quashed the grant of pardon and the gov filed an appeal. Grounds on which the judiciary can review the grant of pardon by the President Non application of mind Mala fide exercise of power Extraneous or irrelevant consideration taken into account Relevant material not considered Order suffers from arbitrariness If the pardon obtained on basis of fraud and correct set of facts not presented 20

f) Devendra Pal Singh v NCT of Delhi     

Khalistan Liberation Front killed 9 people Art 161- power of Gov to grant pardon Held: Pardon is not a matter of grace nor of privilege but a const resp exercised keeping in mind the larger public welfare and interest No arbitrariness or unreasonableness He’s not sitting and granting pardons arbitrarily.

VI. LEGISLATIVE POWER OF THE EXECUTIVE (ARTS 123 AND 213)  Ordinance making power (123 and 213)  123- pow of Pres to promulgate Ordinance during recess of Parliament  (1): except when both Houses are in session. Pres is satisfied- in reality, council of ministers.  

Such circumstances- emergency (not an ordinary circumstance) Ordinance has to have connection with emergency. Power is exercised only when needed

 (2): same force and effect as an Act of Parliament (a) mandatorily laid before both the Houses of Parliament. - Cease to operate at the expiration ofn6 weeks from reassembly of Parliament (if the two reassemble on different dates then the 6 weeks is to be taken from he latter of the two dates) (max period of operation of ordinance- 7.5 months because a maximum of 6 months can pass between two sessions of Parl and then an Ordinance remains in force for 6 weeks more) - If resolution is passed before that, disapproving, it ceases to have effect (b) can be withdrawn anytime by Pres  (3) If parliament has no power to enact a law, the ordinance is not valid either- void a initio - temp law: Parl making law on state subject during emergency  

Pre constitutional cases- power to pass ordinance was of absolute nature not necessarily emergency. Prerogative power- No judicial review

 Before R.C. Cooper, pre-constitutional position was followed  In R.C. Cooper, the judiciary reviewed this power and held that it has limitations. On grounds of malafide  Ordinarily under the Constitution, the President is not the repository f the legislative powers of the Union. This power belongs to the Parliament. But to meet extraordinary situations demanding immediate enactment of laws, the Constitution makes provisions to invest the President with legislative power to promulgate ordinances. Temporary law  Exec in USA and Britain doesn’t enjoy the same power  Two conditions need to be satisfied: 1. both Houses should not be in session 2. Pres is satisfied that circumstances exist which render it necessary for him to take immediate action 21

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Orinance promulgated when the two Houses are in session is void. Can promulgate an ordinance when only one House is in session because a Bill has to be passed through both Houses to become a law. Thus, if only one House is in session, an emergency legislation will not be able to be passed. The House in session may disregard the ordinance passed as a discourteous act if it is not consulted. What should be done is that the House should pass a Bill with the exact same provisions as the ordinance and then it should be promulgated as an Ordinance by the President. Parl’s control over the ordinance is ex post facto as it is exercised after the ordinance is passed. Ordinance isn’t anti-democratic- Council of Ministers resposinble to the Parliament; the Houses can refuse to pass the ordinane when in session; can pass no confidence motion against the CoM. 4 ways an ordinance comes to an end: 1. Both Houses pass resolutions disapproving the ordinance 2. If the ordinance isn’t replaced by an Act within the stipulated period 3. The executive lets it lapse w/o bringing it before the Houses 4. If it is withdrawn by the Govt at any time Pow to issue ordinances co-extensive with the legislative power of the President. Can only pass ordinance on a matter in l2 if proclamation of Emergency is in operation.

a) A.K. Roy v UOI   

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National Security Ordinance, 1980 - providing for preventive detention SC left question open as to whether the satisfaction of the Oresdient under 123(1) is justiciable or not. Court said it as arguable that judicial review is not totally excluded in regard to the question relating to the President’s satisfaction. As to whether the pre-conditions to the exercise of power under 123 have been satisfied or not cannot be regarded as a purely political question and kept beyond judicial review. In this case the Ordinance was replaced by an Act of Parliament, thus the Court felt no need to go into the question of the President’s satisfaction to issue the ordinance in question. Court said a prima facie case must be established by the Petitioners as regards the non-existence of the circumstances necessary for the promulgation of the Ordinance before the burden can be cast on the President to establish those circumstances. Court will not entertain passing and arbitrary challenge. - can’t be arbitrary exercise of power with mala fide against the normal legislative process. Power to issue ordinances not to be used recklessly. Ordinance is law for the purpose of Article 21

b) T. Venkata Reddy and K. Nagaraj   

Court equates ordinance with legislatiob and thus intention is irrelevant. T. Venkata Reddy: Ordinances abolishing posts of part time village officers in the State. Not replaced by an Act of Parliament, but it was succeeded by 4 ordinances Court ruled that since the power to make an ordinance is a legislative and not an executive power, its exercise couldn’t be questioned on such grounds as improper motives or non-application of mind. Neither can it be challenged on grounds of its propriety, expedience and necessity.

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It stands on the same footing as an Act of Parliament. The Courts can declare a Statute unconstitutional when it transgresses constitutional limits, but they cannot inquire into the propriety of the exercise of the legislative power. It has to be assumed that legislative discretion is properly exercised. The ordinance doesn’t become void ab initio when it comes to an end. Transactions completed under it cannot be reopened when it comes to and end. Only ‘ceases to operate’ not void. (question of whether the posts that had been abolished should be deemed to have been revivied)

c) S.R. Bommai v UOI  

Arbitrariness- non app of mind, mala fide intention irrelevant Subjective satisfaction of a Constitutional authority including the Governor, is not exempt from judicial review.  In its judicial review, it is open to the Court to examine the question whether the Governor’s report is based on relevant material, whether it is made bona fide or not and whether the facts have been duly verified or not. (opinion expressed wrt executive action under Art 356 which was not legislative in character nevertheless it indicates an assertion that unless specifically barred every executive action is subject to judicial review) d) B.C Wadhwa v State of Biahr  256 ordinances revived again and again (re-promulgated), w/o placing it before the legislature.  SC Held: re-promulgation is fraud on Constitution. It has to be placed before Parliament.  The Court criticized the practice as undemocratic (2 years later) e) Krishna Kumar v State of Bihar          1. 2.     1. 2.  

Ordinance re-promulgated Salary same as gov servants Not in 1994- thus whether they can continue to receive the same salary Primary Q- nature of ordinance Secondary Q- Is re-promulgation valid? Ceasing of ordinance- diff from temporary legislation Rights and liabilities don’t continue after repromulgation even if validly repromulgated Therefore teachers have no right to receive the salary But Court gives another relief. In certain circumstances the ordinance can be continued: If it is necessary to continue R&L in public interest If there is a constitutional necessity - F.R will be affected if not continued (rare circumstance) It completely lapses after a period Legislature has plenary power to legislate: temp legislation. Therefore, there is relief in equity The firs Ordiannce was invalid as it wasn’t placed before the House. Mandatory requirement: The ordinace shall have same force as legislatute It shall cease to operate force as legislature Both conditions hae to be fulfilled: there is a need and placed before Parliament. Art 213(2): Constituional condition: legal fiction (if conditions are satisfied) 23

3. Ordinance is wrt urgent need (a pre-requisite)  “Shall be made”, no exception but one- If House is very busy due to imp matters (Court will decide this). Within6 weeks of House it will cease- onus on House to show they were busy 

Rules of Procedure (Rule 140) in Vidhyan Sabha of Bihar- copy of ordinance was not sent to assemnly by governor



Repromulgation- Constitutionally impermissible- as it is latching of legislative power- crossing line, overreaching legislative authority Danger: threat to sovereignty of Parliament, Assembly. Transparency: law is passed through process, ordinance does not undergo this Subverson of democractic process Therefore colorable exercise of power, Governor is criticized.

   

VII. JUDICIAL POWER OF THE EXECUTIVE (ARTS 72 AND 161) (missing notes)

VIII. OFFICE OF THE GOVERNOR  

Pleasure of President is pleasure of pm and council of ministers S157- no provision of ‘office of profit’ but once he becomes the governor he cant continue to hold the office  Language of the oath is very imp, can be grounds for ‘pleasure of president’ for removal  Proviso for article 164 isn’t that imp  164(2)- principle of collective and indi resp applied in the same fashion  If a cabinet min has made a decision and communicated it to gov, the gov can send it back for reconsideration by the entire cabinet.  Imp articles (do from Bare Constitution)- 154-159, 161-164, 267  S.R. Bommai observations- IMP  Recommendation of Sarkaria Commission: 1. In choosing CM, dismissing him, recommending President’s rule 2. Office has multi-faceted role, office assures continuity of office (not disturbed) 3. A national policy should be made 4. A Reforms Commission 5. Person should be eminent, outside state and not active in politics. In consultation with CM, VP and Pres 6. Retirement benefits 7. When clear majority, largest party is called- quick formulation of govt See preference (?) a) B.P. Singhal v UOI   

2nd July, 2004-Doctrine of Pleasure Facts: Dismissal of Governor of U.P., Gujarat, Haryana Petition 24

 Relief: UOI should produce documents  Writ of certiorari and allowing governor to complete Arts 153, 155, 156(1)  Petitioner: Governor holds high office. Gov is not a servant, subservient to Union Government.  Contended- he should continue it for 5 years  Requirements: a. Withdrawal of pleasure cant be arbitrary. Material is to display misbehavior b. Before removal, should be issued show-cause notice c. Removal by speaking order  Petitioner submit new norms: 1. Removal of governor in rare circumstance. Reasons: only compelling nexus to his duty, eg- mental disability, corruption, links to anti national - removal can’t be with ulterior motives 2. Gov should be apprised of removal- fair play 3. Order of removal subject to judicial review.  Respondents: 1. 156(1) is absolute and unfettered discretion. No limitations can be read. 2. Governors accepted without protest. No locus 3. Governor should abide by party’s ideology (the Governors were out of sync)  Issues: 1. Whether petition is maintainable 2. Scope of doctrine of pleasure 3. 4. Any restriction on 156(1) 5. Whether open to judicial review  Court admits the petition  Issues as decided by the Court: I. whether writ petition is maintainable: - respondent: writ petitioner has no locus to maintain this petition as none of the aggrieved governors had approached the Courts - on the basis of previous case laws, eg- Ranji Thomas v UOI, the petition should not be maintainable as none of the governors had approached the Court. Therefore, The petitioner has no locus to maintain the petition in regard to the prayers claiming relief for the benefit of the individual Governors. - However, with regard to the general question of public importance referred to the Constitution Bench, touching upon the scope of Article 156 (1) and the limitations upon the doctrine of pleasure, the petitioner has necessary locus. (on the basis of S.P. Gupta v UOI) II. Scope of doctrine of pleasure - Scope of doc-Origin in English law : Shenton v Smith (Privy Council Case)  In Shenton v. Smith the Privy Council explained that the pleasure doctrine was a necessity because, the difficulty of dismissing those servants whose continuance in office was detrimental to the State would, if it were necessary to prove some offence to the satisfaction of a jury (or court) be such, as to seriously impede the working of the public servic 25

Union of India v Tulsiram:  "In England, except where otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown or durante bene placito ("during good pleasure" or "during the pleasure of the appointor") as opposed to an office held dum bene se gesserit ("during good conduct" H.M. Seervai also explains that Crown is not bound to show cause for dismissal - Doctrine of pleasure is not license to act arbitrarily. It necessarily means reasonable exercise for public good. In a society of rule of law, unfettered gov discretion should be narrow. - Paradoxical if not imposed.  3 types of offices: 1. Art 310, 311: Defense and Civil Services  People hold at pleasure of the President but guidelines for removal given in the Consti  Therefore, no absolute discretion 2. Governor, minister, attorney general  Pleasure w/o restriction  Not a license to act arbitrarily or on your whim and fancies 3. President, SC No doctrine of pleasure - if some offices re held at the pleasure of the President w.o any restriction or limitation placd on the same then they should be understood as being subject to the fundamentals of constitutionalism. - The absence of such limitations and restrictions means that he can be removed from office at any time , w/o notice and w.o assigning any cause. - But it is not a license to act w unfeterred discretion or to act arbitrarily, whimsically or capriciously. Need to have a valid cause for removal of the person. III. Position of a Governor under the Constitution - integral part of the legislature of the State. Promulgation of ordincance, executive pow vested in him and done in his name. Can grant pardons, reprieves, respites, etc., recommendation for failure of constitutional machinery. - State of Rajasthan v UOI:  Gov if formal channel of communication b/w Union and the State Govt  Makes report for failure of const machinery - State of Karnataka v UOI  Gov’s office is independent and not employed under GoI. - Rameshwar Prasad v UOI  He is not an agent of the President - Governor has dual role- 1) link b/w Union and State. In certain special situation may act as Union representative 2) Constitutional Head of State bound by advise of CoM - Nehru opinions: eminent person, not taken too great a part in politics - Ambedkar: Gov no power of interference in the admin of the province - Governors are not expected or required to implement the policies of the government or popular mandates. Their constitutional role is clearly defined and bears very limited political overtones. 26

they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution - contention of respondents rejected that the Governor should be in sync w the policies of the Union Govt or should subscribe to ideology of the party in the center IV. Limitations/Restrictions upon the Power under Article 156(1) of the Constitution - 156(3) does not limit 156(1). - Gov cannot be removed on the grounds that he is not in sync or refuses to act as an agent of the party in the center. - Governor is not like the Ministers or Attorney General who too hold office at the pleasure of the President because he is the Constitutional head of the State. Not the employee or agent of the Union or part of a politucal team. Cannot be removed due to loss of confidense in the Gov. - The Governor should be removed for valid reasons and what constitutes this depends on the facts and cirumstances of the case. V. Judicial Review of Withdrawal of President’s pleasure - no cause needs to be disclosed for exercising power under Article 156, however a cause needs to be there, otherwise there would be arbitrary exercise of power. - Justice Bhagwati in Rajasthan v UOIif issue of constitutional determination, court cant fold hands just because there is some complexity. Court is ultimate interpretor. - need to act fairly and reasonably isn’t dispensed with by Article 156(1). - Court assumes valid and compelling reasons for removal but if prima facie mala fide then burden shifts- UOI will have to show docs - Good and compelling reason- facts of the case - Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters- no interference unless a very strong case is made out - Decision is open to judicial review but to a limited extent Doctrine of Pleasure (does not mean unlimited power)- valid grounds and opportunity to be heard under art 311 -

b) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly 

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The gov postpones the Assembly session in Arunachal Pradesh, contrary to the aid and advice of his Council. He further advised the Deputy Speaker to preside over the Assembly when considering the removal of the Speaker. Didn’t give the CM the opportunity to conduct a floor test and recommended action under 356. A Constitution Bench of the SC invalidated this action (following S.R. Bommai), compelling the President to withdraw the action under 356 after 6 months. Further, it was held that summoning of any House w/o aid and advise of the CoM was unconst.

27

MODULE 3: THE PARLIAMENT      

Article 79- Parliament Art 80- Council of States (Kuldeep Nayar v UOI) Art 81- House of People Art 83- Duration of House of Parl Art 84- Qualification Arts 85-90; Arts 93-94; Art 98; Arts 101-102; Art 105

I. RAJYA SABHA -

States do not have equal representation as is in the American Senate Proportional representation gives due representations to minorities as well Nomination principle- gives representation to certain non-political interests which might not otherwsue get any repr in Parl.

a) Kuldip Nayar v UOI  

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Amendment to the Representation of People’s Act (Act 40 of 2003) Amendments challenged: 1. Earlier, a person was not qualified unless he was elector in that territory – removal of requirement of residence or domicile in the electing State as a qualification for election to Rajya Sabha - whether it violated the basic feature of federalism - amended section 3 of the RP Act 2. No open ballot - Provision 128- Maintenance of secrecy except Council of States - Sections 59, 94 and 128 of the RP Act, 1951 - Secrecy was the essense of free and fair elections as well as freedom of expression which was a basic feature of the Constitution, Issue: 1. Domicile 2. Secrecy - Const arts 80 and 84 Elector- Section 2(e) of RP Act, 1951 (1) - First issue related to content and significance of the word ‘domicile’ - Petitioner: in a federal set up, the States and UTs have their own problems, interests, concerns and views, therefore there should be forum to exclusively recognize their interests (in terms of art 80should have an identifiable nexus with the State) - Petitioner- offends principle of federalism, the basic feature of the Constitution - UOI- the Amendments didn’t alter or distort the character of the Council GoI Act, 1935: Upper and Lower House - Purpose of having upper house. Draft consti - Para 6 of Part I of Sch 4- req of residemce- was later deleted- It was not a constant or uniform req Art 327 (Draft 290), 68A (Art 84) - Citizenship - Diff b/w LS and RS 28

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Court held that the representatives of the States in RS need not necessarily belong to the States concerned. Residence as a matter of qualification becomes a constitutional req only if expressly stated in the Consti.

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  

The words ‘representative of the State’ do not in any manner connote that the representative must also be an elector or voter registered in the State itself. This is not inherent in the word ‘representative’. The expression ‘representatuve of eah State’ occurring in Art 80(4) does not imply a condition of residence or other link to the State to be represented - Residence is not the essence of the structure of the Upper House. Hence, it is not a pre-requisite of federalism or an essential basic feature of all federal constitutions. - Constitution will not cease to be federal simply because the RS Members do not ‘ordinarily reside’ on the State from which he is elected - Due to states of varying population, unequal representation in the LS.RS more adequately reflects the interest of the States. Upper Houe desgined to protect interests of the States against improper federal law. - Article 84- qualifications for membership of Parliament; Art 102- indicates the disqualifications. From both these it is clear that the Constitution has no req that a person chosen to represent a State in the Council of States must necessarily be a voter in that State itself. - The argument that to represent a state you have to have a domiciliary link or nexus w that State is based on the intrinsic concept of the word ‘representative’. However, this word has no definitet meaning. It is a malleable concept and change wrt time. Contemporary view is that Upper Houses are losing their intended characterstics of effectively representing the interests of the States and are becoming ‘national’ institutions. - does not act as a champion of local interests - experienced public figures get access w/o going through elections - revising chamber - RS MPs don’t vote according to dictates of the State concerned but according to their own views and party affiliations. Ordinarily resident meaning- habitual resident, not owner of house. Army resident, husband-wife of States and that concept of residence/domicile is a matter of qualification under Art 84(c). No strict federal - so there is competence and amendment is upheld (2) Articles 327, 328 and Sch 7 l1 e72 + RPA- s59, 94, 128 - principle of secrecy is not an absolute principle. It is vital for ensurinf gree and fair elections, however, the imp point is the free and fair elections. - If secrecy becomes source for corruption, then it can be removed - Open ballot voting was introduced to eliminate evil of cross voting (voting for a party one doesn’t belong to) for consideration. Transparency would eliminate this evil - Right to vote doesn’t imply the right to vote in secrecy - The Constitution clearly states that election of Pres and VP should be done by ‘secret ballot’. The necessity for including these terms show that the secret ballot isn’t always implied. Thus for secret ballot to be the norm, it must be expressly provided. 29

(missing notes??)

II. OFFICE OF PROFIT    

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Disqualification as there might be a conflict of interest Need to look at the legal test in article 102 and look if the office is not in the schedule OoP not defined in the Consti Therefore, three steps to identify OoP: 1. Holding the office 2. Should be under the Central or State Gov 3. Office one of profit Thus is person isn’t holding office but is earning profit he cannot be disqualified When can you say the office is under the Govt? (1) Is gov making the appt? (2) More imp- whether the gov has the right to dismiss the person ( if the second point is fulfilled although the first isn’t, it is held to be a gov office) (3) Whether gov pays the salary or remuneration. Pecuniary gain- amt irrelevant. A person drawing a fee to meet out of pocket expenses for some government office doesn’t count as OoP. (4) Whether the duties are performed for the government (is it a governmental function?)-nature of function of the post (5) Whether govt has control over duty of office Dependence of a large number of members of Parliament on govt patronage would weaken the posn of Parliament vis-à-vis the Executive- tend to support the gov w/o considering a problem w an open mind. Should be no conflict b/w duties and interests of an elected member Independence of Parliament An office of proft doesn’t necessarily mean service of the government- need not be a master-servant relationship

a) Shibu Soren v Dayanand Sahay S was appt head of Jharkhand Area Autonomous Council. Paid honorarium for 1550, daily allowance, car+ driver etc all out of gov money. - He was appt by State govt - Post at the pleasure of the gov (thus pow to dismiss) - Gov pays salary and remu. Honorarium of 715, daily allowance, car. Court held that car w driver cannot be treated as a compensation it is more than it. It is a profit (pecuniary gain). Court held this to be an Office of Profit and thus he was disqualified. b) Biharilal Dobre v Roshan Dobre Primary school run by Board of Basic Edu and R was holding the post of teacher there. Here the Court examines what is the nature of the Board of Basic. Edu. Whether under gov or not? No issue of profit as there is a primary school teacher who receives salary Factors that come out on examination:  When disciplinary action is taken against anyone on the Board, the State gov is the appellant authority 30

 Function: regulating the primary edu and edu is function of the gov (public function)- Act empowered govt to take over all basic schools being run by the local bodies in the States  Finances: most of the financial assistance cones from the government which brings in an element of control  Admin control: Board of edu functioning like a dept of the gov Taking the above into account, the Court says the post of primary school teacher under this Board is an office of Profit. He is given salary and not compensation. Incorporation of statutory corporation doesn’t automatically imply that it is independent of the Government. Even if the statute intended the same. Sometimes the form may be that of a body corporate independent of the Government but in substance it may just be the alter ego of the Govt. In this case Govt had direct control over the Board and that it wasn’t truly independent of the Govt. Board had no separate personality of its own and every employee of the Board was holding OoP under he Govt Level of control is relevant here. c) Satu Charla Raju v V Pradeep Kumar Dev S was appt as a teacher for a primary school which was run by a separate corporate entity- Integrated Tribal Development Agency by the project officer- the District Collector. Effectively appt done by state gov. State takes the fact that the Agency, the gov officials are ex officio members of the Board, there are funds, finances coming from the gov. Also gov has control over sanctioning of the posts. No new post created w/o permission of the gov. Person was suspended (he was SLA). HC held it to be an office of profit. HC lifts corporate veil, looks at functions. S appealed to SC, reversed the decision. Said that the government has control over the entity but not over the school SC gives certain factors:  Right to appt and right to remove is a key factor. But HC has interpreted it wrongly. The Agency is a separate entity. The gov has control over the Agency but no direct control over the teachers of the school.  The degree of control from the gov’s side becomes relevant The Court says the tests:  power to appt and revoke the appt. Here, the District Collector is not appointing as the DC but as the project officer  payment coming out of gov revenues isn’t always a decisive factor  also take into account that Agency is a separate corporate entity. Court will not always lift corp veil (looking at princi of corporate personality, it is not treated as an office of profit)  Some level of control (degree)  Distinguishing from Beharilal Dobre: The Court held that emphasis should be on the nature of the post held and the possibility of conflict between duty and interest of an elected member and to appreciate the same the test is whether the govt has power to appt or dismiss the employee who is being chosen as a legislator. Idea of profit has changed since Jaya Bachan. Before had to show the person is taking some pecuniary gain d) Jaya Bacchan v UOI She was appt as a member of Film Dev Council while member of RS. 31

Arguments: -Schedule of Parliament Prevention of Disqualification…..Act which doesn’t disqualify this post from aegis of Office of Profit -Although there is monthly honorarium of 5k, 10k entitlement, car w driver, telephone, free acco, med treatment facilities but she isn’t taking any of them. So pecuniary gain is absent. So eventhough office, it is not an office of profit. Court says that this isn’t the correct way to interpret OoP. If there is gain and whether the gain coming out of state expenses then irrespective of whether the gain is availed of or not, it is an OoP. Have to show there is possibility of pecuniary gain. The remuneration is coming out of the funds of the respective gov. Even if person not receiving the pecuniary gain the person is holding an OoP (This is still a grey area, what will be treated as Office and Profit is still very subjective) e) Pranab Mukherjee Case Pranab Mukherjee’s election was challenged. He was member of ISI . Since no pecuniary gain attached, it could be treated as Office but not one of Profit, thus not disqualified. Corporate veil is lifted on when you can show there is a valid alter ego.

III. DEFECTION 

Article 101-meaning of defection, 102(2)- what happens if defection and para 2 of Schedule 10exceptions, para 3- exception when not treated as defection

a) Kihoto Hollohan

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

      

 The constitutional validity of the 10th Schedule of the Constitution introduced by the 52nd Amendment Act, 1985 was challenged.  10th Schedule was inserted to tackle the evil of political defection Para 7 of 10th schedule was severed and the remaining schedule was saved. (6th and 7th paras were joined but only 7th was severed) - Para 7: court will not have jurisdiction in respect of any matter connected w the disqualification of a member of a House under this Schedule Imp parts of the judgment is where imp of 10th schedule is discussed Amendment had intro 10th schedule meant to deal w defection- subversion of the democratic process- unethical practice- when you defect you are shaking the faith of the people. - Idea is to save parl demo by saving unethical and unprincipled pol defections 10th schedule doesn’t provide adequate ground for disqualification- speech protected under 105 but the kind of speech that affects fabric of parl demo isn’t protected discussion on judicial review, how it is part of the basic structure finality clause- juris of SC under 136 (special leave to appeal) writ juris to HC considering jud review to be part of BS of Const and the insertion of 10th schedule was trying to cut off jud review to the extent that the para had to be deleted. Jud review not barred, finality clause in para 6 doesn’t bar jud review. Prob arises due to art 122 and art 212 32

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

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Art 122- prob as can judicial review not take place?- Court says this doesn’t bar jud review here as adjudication is being done and if that is being done then jud review has to be there. Adjudication is being done by the Speaker/Chairman that acts as a tribunal and thus his decision is subject to jud review. - Speaker’s order would be open to judicial review on the grounds of jurisdictional errors based on violation of constitutional mandate, mala fides, non-compliance w the rules of natural jusice and perversity. Justice Venkatshariya (referred to Just Oliver..?)  if lot of members of one party leaves and goes to another, the public feels cheated. Voted a person due to him being a member of a particular party. Not presidential election where candidate is highlighted more. Undermines public confidence which is source of sustenance in ultimate analysis  it is pre decided that members of a pol party is supposed to vote in a particular manner but if you do not do this it means going against the est ideology. Can only vote against if you take prior permission. If not it is condoned by the Party  10th schedule has to be read harmoniously with art 105 (r to speech in parl which includes how you vote) Court says 10th schedule doesn’t affect the freedom of voting as if you vite against the party you stood for, it is unprincipled. Not conducive to parl demo. Provisions of the 10th Schedule give recognition to the role of political parties in the political process. Party goes before the electorate w a particular program and the candidate is elected on the basis of this program. Therefore if he leaves after election, should give up seat and contest elections under the new party that adopted him Para 7 affectd Articles 136, 226 and 227 and thus is required to be ratified by half the State legislatures in accordance w article 368(2) of the Constitution. Not ratified and therefore constitutionally invalid. {ara 7 contains a proviso which stand aprart from rest of the schedule and could thus be severed from the schedule.

(read provisions of 10th schedule) 1. Interpretation  1(b)- only those in the House 2. Disqualification on ground of defection (what he doe does that will result in his disqualification on grounds of defection  2- operative provision  (1) b) when party whip issues direction you are supposed to vote like that  provision of prior permission is there  if not condoned then you will get disqualified  political part- that party for which you stood for elections  a nominated member: the party you were part of when you were nominated  art 99- oath taken in that format and take seat only after taking that oath  2) disqualified if you join any other political party than the party you were a part of  3) limit of 6 month is given as it sets up a time limit as people could randomly switch  4) i) not giving para 2 retrospective effect 3. Para 3 omitted 4. Disqualification on ground of defection not to apply in case of a merger  4- no disqualification when there is a merger of pol parties 33

 you either become member of the merged party or if you are not agreeable to it then you function as a separate group  2) at least 2/3rd ot members should agree to this merger 5. Exemption to the rules foe disqualification  5- Exemption  when you become speaker etc, you give up allegiance to that particular pol party, this doesn’t amount to defection,. After you cease to hold your party you rejoin our original pol party, cant join another party, then will get disqualified. 6. Decision on questions as to disqualifications on ground of defection  6- both the clauses the decision shall be final (a finality clause) ( series of cases where jud review held to be part of basic structure so finality clause doesn’t affect) 7, Bar of jurisdiction of courts  7- severed (finality clauses does not mean final jr still available) 8. Rules  8- rules that are to be made- maintaining of records, who belongs to which pol party- period of 6 months where nomi member became member of a particular pol party

IV. POWERS AND PRIVILEGES I. Free speech case: a) P.V. Narasimha v State 

1993, No Confidence Motion was proposed against the Narasimha Rao Govt, Congress members gave bribe to Jharkhan Mukthi Morcha to not favor this Motion, and consequently the motion was defeated.  This was discovered, sought to prosecute under Public Corruption Act, IPC  Issue: 1. whether by virtue of Article 105(1) and (2) an MP can claim immunity from prosecution before a criminal court on a charge of bribery in relation to the proceedings in Parliament 2. Are MPs ‘public servants’ under the Prevention of Corruption Act, 1988? (1) Ordinary law does not apply to acceptance of bribery by an MP in relation to proceedings in Parliament - Court gave broad interpretation of Article 105(2). Said that it protects an MP against proceedings in Court that relate to, or concern, or have a connection or nexus w anything said or a vote given by him in Parliament. - Bribe givers have no immunity under 105(2) however this isn’t the case w the bribe takers. For the latter, people taking bribes and then not voting in the Motion, their relation or nexus b/w the bribe and the Motion is explicit. However, those who accepted the money but didn’t vote cannot enjoy immunity under 105(2) no nexus bet immunity for taking bribe and casting vote. - minority interpreted 105(2) narrowly- immunity can be claimed for liability arising as a consequence of the speech that has been made or vote that has been given in Parliament. The criminal liability incurred for accepting bribe for speaking or voting a particular way in Court arises independently of the making of the speec or giving of vote by the Member and only the latter can be regarded as a liability ‘in respect of anything said or any vote given in Parliament’. 34

- Minority (correct): Art 105(2) is meant to protect from consequences of blasphemy, etc. Not for every nexusbribe taking and giving isn’t protected (2) MPs are public servants under s2(c) of the Prevention of Corruption Act, 1988 because he holds an office and is required and authorized to carry out a public duty- effe tively and fearlessly representing his constitutency. - Under s19(1) of the PCA, a public servant cannot be prosecuted w/o the sanction of the competent authority i.e., the authorit competent to remove him from office. In case of an MP or MLA here is no authority competent to remove him. Therefore, he can be prosecuted w/o such sanction but after obtaining the permission of the Speaker or Chairman, as the case may be II. Publication Cases  In article 105(2) no person is to be liable to any proceedings in any court in respect of the publication of any report, paper, votes or proceedings by or under the authority of a House of Parliament.  All persons connected w such publication is protected if he has done it under the authority of the House. b) Dr. Jatish Chandra Ghose v Hari Sadhan Mukherjee   

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Member gave notice of his intentions to ask certain questions in the Assembly Speaker denied permission so he published in local journal Complaint filed by government servant under s500 and s501 of IPC against member as well as the editor, printer and publisher of the journal that the member concerned had pblished false and scandalous imputations agasint him w a view to harming his reputation. He claims immunity under 194(2). Court said the matter doesn fall under 194(2) as it was neither under the authority of the House nor ‘anything said or vote given by a member of the Assembly’. Immunity of member for speeches given within the House does not extend to publications given by him outside the House. Member has absolute privilege wrt what to says within the House however, only qualified privilege even in respect of what he says himself in the House if he causes the same to be published in the public press. Court: He has himself published, not part of proceeding, no prior permission Q left open- whether disallowed questions is part of proceedings of the House.

c) Suresh Chandra Banerji v Puneet Goala     

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A member made a speech in West Bengal Leg. Assembly w/o prior permission local newspaper published a report on the proceedings of the House including the speech. The complainant filed a complaint against the newspaper saying the speech contained matter highly defamatory to him, thus he had been defamed by the newspaper becasuse it had published that speech. Sought immunity. Cal HC held that the member who had made the speech in the House could not be prosecuted for uttering the words complained of, But as the reports of the said speech in the newspaper were not published by or under the authority of the State Assembly, art 194(3) [art (105(3) in case of Parl] had no application. Court said 194(2) applies only where there is prior permission

35

d) M.S.M Sharma v Sri Krishna Sinha      







A speech in Parliament, person requested certain portions to be expunged. Editor published the entire speech Immunity claimed by Editor under 19(1)(a) and 21 Court- 19(1)(a) is general whereas 19(2) is specific. Publication is limited by prior approval, therefore not permissible. No per se taking away of personal liberty under article 21. There was a procedure. Minority (Subba Rao): 194 and 105 starts subject to the provision of the Constitution. Therefore, 21 should not be taken away. The state of law after Suresh Chandra Banerji was considered to be unsatisfactory as it was felt that many advantages would accrue to the community if the newspapers were allowed to publish reports of proceedings of the Parl in good faith. Thus article 361A was enacted - no person shall be liable to civil or criminal proceedings in respect of publ of newspaper report of substantially true proceedings in the House , unless publication proved to have been made with malice. Immunity not appl to a secret sitting of the Parl

III. House has power to punish own a) Raja Ram Pal v Hon’ble Speaker, Lok Sabha (IMP)    

 

      

A sting operation telecast on 10th December, 2015 10 members shown to take bribes to cast votes. Presiding speaker of LS set up a committee as did the chairman of the RS- report- enough evidenceexpel members Contended on behalf of the MPS that the expulsion was malafide and a result of a pre determination of the issue. For this purpose the relied on the declaration of the Speaker made on the floor of the House that ‘nobody would be spared’. The MPs argued that the above circumstanced do not warrant the order of expulsion Issues: 1. Does SC have pow to determine pow, immunity, privileges of members of Parl 2. If som does pow under Art 105 include pow to expel its members 3. Is do does SC have juris to interfere, does it have limitations Function of SC- To finally interpret Can Parl expel members- It wasn’t the first time that that motion came up (came up against Indira Gandhi as well) House in UK- very less power (Upper Chmaber was highest court till 1991) 105(3) specifically mentions0 all of powers How can SC bring qualifications so powers continue to remain the same. Court doesn’t have power. 102- disqualification Court: disqualification and expulsion is different (still qualified to be a member, expulsion is punishment). Disqualification strikes at the very root of the cnadidate’s qualification and renders him 36

     

 

unable tomoccupy a Member’s seat. Expulision deal with a person who is otherwise qualified but in the opinion of the House unworthy of membershio Court rejected submission that Arts 101 or 102 in any way restricts the scope of 105(3). Court found no violation of fr in general and 14, 20 or 21 in particular, Proper opp to explain and defend had been given to the MPs. Therefore no conflict n 101, 102 and Judiciary can interfere The Court refers to In re Keshav Singh (UP Legislative Assembly case) - K.S published pamphlet describws corruption of 1 member. The Assembly said it lowers the image, he was told to justify, he said he doesn’t care (demeanor), his conduct was reprehensible - Arrest warrant issued- writ of habeas corpus in Allahabad HC, no pow to imprison, no opportunity to argue- natural justice. He was released on bail. Again arrest warrant against advocate and judges. - Judges filed writ in HC - House withdrew warrant and asked for justification. - HC issued stay order- no reason to justify. Refer to SC under Art 143. - Court: House has power for contrempt but not the judges who perform their function. - Therefore, Curt interferes in parl proceedings, JR is possible but limited only to arbitrary action. Thus in the present case the expulsion was upheld. Expulsion was punishment for contempt. - should not affect constitutional machinery.s These observations and findings imply that the Court has affirmed the justiciability issue and consequently its power of JR.

V. ART 107- LEGISLATIVE PROCEDURE               

Art 85-87 Motion of thanks if defeated then No Confidence Motion Art 100- Voting in Houses Art 101- Vacancy of seats 3 kinds of bills- money, financial and ordinary - financial (money + general), appropriation bill Art 112- bidget Art 113- estimates Art 115 Art 116- excess grants Art 107- prorogation has no effect on bill provisions as to intro and passage of bills (art 107) A Bill is considered clause by clause. bill can originate in LS or RS, amendments to be agreed upon by both the Houses Imp Bills are referred to select committees. a bill shall not lapse by prorogation of the Houses (will not lapse if it is pending in RS but LS dissolved) joint sitting of both Houses if deadlock arises- Pres call in 3 circumstances 1) bill rejected by other house 2) am not agree to by both houses 3) 6 months have passed since the Bill has been introduced 37



 

 nothing in this clause shall apply to a Money Bill in JS bills are passed by total no of members present and voting in the joint sitting.  provided that a) other amendments will not be proposed only the orginal amendments that had been introduced will be proposed b) if other amendments are brought in then it is the discretion of the Presiding Officer to admit these or not. Art 118(4)- Spealer Art 109- Special procedure wrt Money Bill

Art 110- Money Bill  Defn of Money Bill (110): ONLY those matters that are listed here - Appropriation: the money is withdrawn because at that time the money us needed but later this withdrawal has to be approved. - Public Account of India- money coming from other sources like trade, etc. - local bodies can levy tax w/o passage of money bill - distinction b/w tax and fees – primary is that in tax there is no quid pro quo reqd but it is reqd for fees. Not necessary that the exact amt is spent for the citizens. (not a clear cut distinction but this is how the Court distinguishes between the two) - Speaker’s decision on classification of a Bill as a Money Bill is final  109- Money Bill is only intro in LS, transferred to RS for recommendations.  No time limit within which the Pres has to give his assent. Art 114- Appropriation Bill  Estimate of the expenditure of the government  Submitted in the form of demands for grants  No DfG shall be made except on reco by Pres  When money is being appropriate for giving grants, we saw in 113 that Pres will make these reco. House cannot later change the amt and destination of that particular grant. Can only debate and discuss it.  AB is a mechanism by which oreviously recommended exo are made and then they are approved by the House of the People. (the estimates if the ecpenditure that is to be made by the Government. This is pre-approved by the LS) a) Manoj Narula v UOI    

Writ petition on criminalization of the House- 4 Ministers had criminal charges and should be dropped from the cabinet. Issue- whether the appt of these Ministers to the CoM required any interference of this Court Const is silent on this matter Contention of Petitioner: - It is constitutional prerogative of the PM to appt the Ministers byt such choice cannot be exercised arbitrarily. Cannot be oblivious to the honesty, integrity and criminal antecedents of the person who is involved in serious criminal offences - It is implied in the provisions that people w criminal antecedents should not be members of the LS (Doctrine of Constitutional Implications) 38

- reliance was also placed on Doctrine of Constitutional Silence or Abeyance and Doctrine of Implied Limitation  Contentions of the Respondents: - apart from the disqualifications prescribed under Art 102(i)(e) and provs of the RPA, 1951, there can be no other disqualification of an MP to hold the post of Minister - Any additional prohibition under 75(1) by way of judicial interpretation is impermissible as PM is the sole repository of pow under the Constitution to advise the Presdient as to who should become a Min if he is otherwise constitutionally eligible and there is no statutory impediment  Dipak Mishra, Lodha, Gobre  Court highlights the imp of demo- democratic polity  It is conceptually against corruption  Demo best defined as for and by the people expects orderliness, discipline, sanctity  Discusses concept of const morality, refers to the essence of the provs of the Constitution (what is moral and immoral). Even in Triple Talaq judgment this doctrine is applied. It is the pillarstone of justice Discusses PUCL v UOI (2014)  held that demo and free elections part of the basic structure of const. Free and fair elections would uphold growth of demo in the country . Defn of ‘fair’.  Discusses NOTA  Court does not really discuss any remedies in its judgment. It said to take the public for a ride.  No need to implead the cabinet ministers  Features absence of which erodes demo- one is holding free and fair elections (refers to Mohinder Singh Gill case). Referred to Winston Churchill’s statement on democracy. Refers to Ragbir Singh case. Imp of choice. It is his right and grasp. Act as responsible citizen in choosing his masters who will govern the country. Court is not competent to add disqualifications in the language  Refers UOI v Asscn of Demo Reforms- money power, etc. Court mentions in affidavit reqd to lay down money power, can give the voters the decision whether to vote for them or not. Court held that voters also have right to know crim antecedents of the persons contesting as it is basic for survival of demo.  Instructed ECI to ex power under Art (?) to lay down the req of the publishing of the trial status or whether the person has been convicted, acquitted, etc. Education qualification was also claimed but since const doesn’t disqualify on the basis of this, it is not a very mandatory factor.  Court talks of criminalization of pol. In Dinesh Trivedi v UOI had mentioned the faults and imperfections impeded the country and identified corruption as one of the primary causes.  NN Vohra report- growth of criminalization of politics in India.  Deeply disturbing trends prevalent in our present society. Nexus b/w politicians and bureaucrats. Adverse effects of this have been felt on various aspect of social life in India.  Anikul Chandra Pradhan v UOI- RP Act. Provs should be made to exclude person w criminal background as those specified (reco by ECI). Court held that such provisions should be promoted and will be welcome. It just observes that Parl should come up with such an amendment.  Several reports and committees that give similar suggestions (find these reports and committees) - Goswami Report on Electoral Reforms  Suggested that after conviction, only after a period of 6 years can he get qualified again to stand for elections. 39

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Law Commission of India suggested (244th report) amendment to RPA and add s 8(b) for the purposes of preventing criminalisation of politics. Certain electoral reforms, disqualification for charge. Court discusses corruption at high places. Prevention of Corruption Act, 1988 discussion. Provs relating to disqualification of MPs and MLAs for the Leg. Council. Art 102 talks about the various disqualifications (profit, unsound mind, acquired citizenship of for state, allegiance or adherence to for state) Art 173 and 191 (equivalent to 102). S8- disqualification for conviction of certain offences Rakesh Dwivedi is amicus curiae. - It is the right of the citizen to be governed by min w no criminal antecedent - Const obligation on part of PM to not recommend any person w criminal antecedent or facing crim charge to Council. Choice of PM must be based on the const. - PM enjoys discretion but has constitutional obligation to not recommend those people w criminal antecedents It is possible to lay implied limitations on the provisions and that is why the Court is mentioning the above. Referred to CAD. Argued const convention read into art 175(1) Counsel for the petitioner has supplemented arguments of amicus curiae SP Gupta v UOI- concept of PIL developed through a constitutional silence, relaxing locs standi as art 32 is a fr. People who cannot approach the court, other people should be allowed to approach on their behalf. Filling up of const gap Refers to M.Nagaraj v UOI Respondents claim that rule of law requires that you read art 175 in a manner…. - Rule of law an exclusive doctrine and cannot form the basis of the appt of a minister. - w/o const prohibition or statutory bar no legal basis for disqualifying such member - framers of const immense trust on the PM as seen from CAD. - ASG on behalf of India- suggested doctrine of implied limitation not accepted in Keshavanda by majority of the judges. Courts interpret arts 74 and 75 K. Parasaran- Judiciary can’t encroach- P.M. is the sole repository of power Third schedule prov Doctrine of Implied Limitation:  Implied limitation- following the doctrine of constitutional limitations the doctrine of implied limitation has been created  Amicus curiae suggested implied limitations doctrine; Justices Hegde an Mukherjee discussed implied limitations.  Implied limitation on Parliament’s pow to legislate, Anwar Ali Sarkar: essential functions can’t be delegated  Followed in Minerva Mills and I.R. Coelho  Petitioner says we should read an implied limitation on the pow of the PM when he is advising.  Court reqd to answer whether it can read a categorical prohibition to the words contained in 75(1) so that PM is constitutionally prohibited to give advice to the Pres in respect of a person for becoming 40





 



a Min who is facing a criminal trial for a heinous and serious offence or charges of the same has been levied against him  Court answered in the negative. When no express disqualification, difficult to interpret an implied limitation into either art 75(1) or 164(1) on pow of PM or CM.  This amts to an eligibility criterion and effectively adding a disqualification, which has not been specified in the Const.  Doctrine thus cannot be read in 75(1) or 164(1). Doctrine of Constitutional Silence or Abeyance:  Whether the Court can read a disqualification to the already stipulated disqualifications provided under the Const and the RPA, 1951  Progressive principle to fill gaps in public interest  D.K. Basu v W.B, Vishakha v Rajasthan; Bhanumati v UP, etc.  Court answered in the negative. It said that this would amount to crossing the boundaries of judicial review.  If somewhere there is a const silence anywhere, then the const is interpreted in the light of the Preamble. Doctrine of Constitutional Implications:  Eg: right to privacy (Art 21)- Jogendar Kumar v State of U.P; Romesh Thapar v Madras  Whether the Court can apply this to the words ‘on the advice of the PM’ in Article 75(1), indicating that the PM isn’t constitutionally allowed to advice the Pres to make a person w criminal antecedents a Minister due to ‘sacrosanctity of the office and oath prescribed under the Const’  Court states that it cannot be legitimately inferred that there is a prohibition for a person to be seen a as Min if charges have been framed against him in respect of a heinous and serious crime, including corruption cases under criminal law. Constitutional Morality- institutional respectability and adoption of precautions for the sustenance of constitutional values including reverence for the constitutional structure Good governance- stressed need foe reverence of the Latin maxim salus populi suprema lex. Growth of demo depended upon good governance. Citizens’ primary desire is that responsible persons carry out their admin. Good governance recognized but Court doesn’t give direction CAD- Ambedkar opposed an amendment of K.T. Shah saying we have to lay trust in the PM. Constitutional Trust- traced the origin of this to the CAD and stressed on the constitutional responsibility of the PM being the effective head of the Govt and CoM. - Must be envisaged in every high constitutional functionary - PM regarded as repository of constitutional trust - PM expected to act w constitutional responsibility to take forward values of demo and good governance. Several things left unwritten by reposing such immense trust in PM - PM must bear in mind that ‘unwarranted elements’ or persons facing crim charges may threaten const morality or principles of good gov. Could possibly diminish const trust - Legitimately expected of PM not to chose such persons w criminal antecedents

41

FREEDOM OF RELIGION- NOT THERE       

  

Not absolute in nature It is subsidiary to other FRs, if conflict b/w this and the other FRs, the others will prevail There is a dist b/w freedom of cons. And freedom to profess and propagate religion In present day profess isn’t that relevant, not spreading religion per se (propagate is spreading religion) Only essential or pure rel practices are protected by this clause, the secular practices can be regulated Sabrimala Dispute- opening up of place for Hindus. 2 explanations in the Article 1) Sikh religion 2) Hindus wide reference 25 is the general right and 26 is specific to managing religious affairs this isn’t restricted to a religious denomination per se, people from all religions can have the right to est and maintain institutions for rel and charitable purposes, etc (given in article) the individual and not the institution has the right, religion is a personal matter therefore right is that of an individual

a) Commissioner Hindu Religiois Endowments v Srilakshmendra Tirth Swamiya Madras Hinu Rel Endowment Act- creates posn of Trust and gov has right to appt/ Interfering w the rights of the math whoch general manage the Hindu properties and positions. Here the court defines the nature of thr right:- institutions cannot practice rel, propagation of belief is protected. This not the right of the insiti but of the indi practicing that particular religion. Defn of rel- basis in system of belief and doctrines which are regarded by those practicing that rel as conducive to their spiritual beliefs, may not only lay down ethical rules but ceremonies modes of worship, etc form integral form of rel. Not just simply belief or system of beliefs, includes all these associated things (rituals, ceremonies, practices) b) Revd. Stanislaus Petitioner challenged 2 legislations- Orissa Freedom of Rel Act, 1967 and MP Dharma Swatantra Act Challenge is that it treats forces conversions as an offense: if anyone converts someone by use of force, fraud or allurement that is treated as fraud. Defn of fraud and allurement is treated as vague and that is the basis of challenge, cannot define use of fraud or allurement to convert Court examines nature of propagation- converting someone to our el is not part of this right, no need to define fraud or allurement od conversion isn’t even a right under this article in the first place. c) Church of God Full Gospel Society Noise and disturbance due to loud speakers used in prayer. SC reaffirmed the fact that freedom to practice and propagate rel if subject ot [public order, morality and health therefore use of loudspeakers isn’t a right d) Acharya Jagdhishvaran.. v Commisione rof Police, Calcutta Anand MArg sect- primarily worsjippers of Lord Shiva. Practice of Tandav Dance. They would perform this dance to attain salvation. They wanted to carry put a procession to carry out this dance like in Moharram. SC is considering the Q as to whether this is an essential religious practice within the fold of this rel sect and second if it is an essential practice could it be protected due to the fact of public order 42

Court denies that it is an essential religious practice e) Commisioner of Police v Acharya… In this second appeal the court looks at the practice that they followed. This was started after the the formation of the sect. He had read this practice in a book and incorporated into it later. Court said that because it was introduced later on it cannot be considered an essential religious practice. f) Bijoy Emmanuel v State of Kerala School students who belonged to a rel group known as Jehovah’s witnesses. Whether singing of national anthem is part of National honour Act. Right under Article 19(1)(a) right to remain silent comes under Q too. The students didn’t sing the anthem, only stood up in respect. They were expelled by the Kerala Rules (?). The court considered their rel belief to be an essential rel beliefs (they do not sing the national anthem). This practice is protected in another countries like USA as well. Court has considered this belief as an essential religious practice. No insult to the national anthem as they did stand. No mandate that the anthem has to ve sung. This right is protected under 19(1)(a).  

Several examples of abolition of religious practices like sati For the term rel denomination we see the Swamiyar Case. Religious denomination de fans a collection of indi classed together under same name, common faith and org and designated by a single name.

g) S.P Mittav v UOI Mismanagement in township Auroville started on the teaching of Sri Aurobind. Can the teachings of Auro be considered to be forming a rel denominations. Court held that it does form one as common name etc. But r to manage Auroville was restricted because this was recog by UNESCO as well and mismanagement would tarnish the image of the country and was a matter if national reputation (subject to public order, health and morality ). National interest and national image will be affected. Therefore temporary management of Auroville was taken over by the Auroville Act.

43

THE JUDICIARY I. ORIGINAL JURISDICTION-CONTEMPT OF COURT   

131, 132- original juris 142- CJI 129- Pow to contempt (court of record) - determine juris - punish for contempt (lowering judiciary in the eyes of the people)- civil and criminal - Eg- non compliance wth directions a) C.K. Daphtary v O.P Gupta

       

O published a pamphlet- bias and dishonesty of an SC judge while acting in judicial capacity- whether it amounts to contempt or defamation? Does it lower the estimate of judiciary as an institution? Held: amounts to gross contempt Scurrilous attack on a Judge in respect of past judgments or conduct has an adverse effect on the due administration of justice Test: Whether the impugned publication was a mere defamatory attack on the Judge or whether it would interfere w the due course of justice or proper admin of law by the Court. Guidelines: no excuse for imputing dishonesty Defenses to above: 1) truth 2) fair comment Propositions laid down regarding contempt of court: 1. There is no excuse for imputing dishonesty to a Judge even if it were to be assumed that the judgment contained numerous errors 2. No evidence other than affidavits is allowed to justify allegation amounting to contempt of court 3. In trying contempt of Court the Court can deal w the matter summarily and adopt its own procedure. However, this procedure must be fair. The CrPC doesn’t apply to matters dealing w contempt of court. 4. No need to follow detailed procedure when prima facie case. No need for the Court to draw up a formal charge either. 5. The President of the SC Bar Asscn can bring to the notice of the Court, any contempt of court as the Bar is vitally concerned in the maintenance of dignity of the courts and the proper admin of justice b) P.N. Duda v P. Shiv Shankar     

Speech before the Bar Council of Hyderabad saying that only the rich get justice.- derogatory to the dignity of the Court Judicial capacity challeneged and that is why brough before Court as necessary for contempt Contempt proeedings dismissed- there is a difference b/w fair comment and hampering the admin of justice. In this case the latter wasn’t there so no hampering of justice. Adminsitration of justice as well as the judges are open to public criticism and public scrutiny. Judges are accountable to society Test applied: Judges can be criticized but motives shouldn’t be attributed to the Judges as “it brings the admin of justice into deep disrespect” 44

c) Delhi J. Service Asscn v State of Gujarat 

       1. 2. 3. 4. 5. 6. 7.

Newly appointed Chief Judicial Magistrate found that ere was no co-operation on part of police in delivering summons, producing offenders for trail, on the account on which there was delay of the trial procedure Wrote a letter regarding the same Police got annoyed and put a charge on a Judge Called him to police station on the pretext of verifying certain documents, hadcuffed him, made him rink alcohol, tied him and took pictures of him in that state. Proceeding under 129Pow of judicial superintendence Therefore punish for contempt of court Guidelines to be followed: If a judicial officer is to be arrested then the intimation has to be given to the District judge or the High Court. If there is a need for immediate arrest, then the arrest need to be an formal or technical arrest. Facts of such arrest should be effectively communicated to session judge or to the District Judge. The arrested judicial officer shall never be taken to the police station without the prior order from the District/sessions judge. All the communications should be provided to the judicial officer for his communication with his family members, lawyer and with District/sessions judge. Neither panchnama, nor the Medical tests should be done except in the presence of the legal adviser. No handcuffing of the judicial officer shall be done. Except in cases where there is extreme threat to the persons around him by that officer. Only then force can be used against him and can be handcuffed.

d) Income Tax Appellate Tribunal v B.K. Agarwal     

Secretary, Ministry of Law wrote a letter to the Presdient of the Tribunal adverserly commenting on its decision in a specific case characterizing it as disclosing ‘judicial impropriety of the highest order’. SC can take suo motu cognizance of contempt of Tribunal. Held guilty of contempt as he was questioning the bona fides of the members of the Tribunal in deciding a particular case and asked them to explain the judicial order passed. Thus he unfairly tampered w the judicial process and the judicial decision making. Held to be contempt of Court: 1. Insinuations derogatory to Court’s dignity, calculated to undermine people’s confidence in Judges’ integrity 2. Attempt by one party to prejudice the Court agasint the other party 3. Attempt to stir up public feelings on a matter pending before the Court 4. Attempt to affect the mind of the Judges and delfect them from performing suty by flattery or veiled threats 5. Act of publication w the effect of scandalizing the Court, attributing dishonesty to a Judge and the discharge of his functions 6. Willful disobedience or non-compliance of the Court order

45

II. ORIGINAL JURISDICTION-ART 32  

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

President, VP election: eg of Original Juris 5 writs: 1. Mandamus: to public authority bodies under Art 12 (qider for 226) 2. Prohibition and certiorari: Judicial and quasi judicial body. P- when ongoing; C- after order 3. Quo warranto- when not qualified to hold office Locus relaxed for weak community, therefore public-spirited person can file PIL uder Art 32: - 2 Judges’ Case: SC advocates on record - T.N. Kaveri N.V.V.P. Sangam v UOI- Petition to refer to tribunal was admitted under Art 32 - Banua Mukti Morcha v UOI: Bonded labour- report-relief (2 people committee) Valid reason for delay: - R.S. Damodar v State of Maharashtra: Delay of 10 years (???) - M.C. Mehta v Kamal Nath- Shri Ram Fertiliser- Absolute Liability (???)

III. ORIGINAL JURISDICTION-ART 131 

Disputes which can be entertained. Center-States: question of constitutional/legal rights

a) State of Bihar v UOI   

The State of Bihar filed a suit against UOI claiming compensation for the railways for non-delivery of certain goods consigned by the State from H.S. Ltd. Held: Corporate veil, Indian Railways and H.S Ltd are separate entities. The right in question must be a legal right. In this case, the matter didn’t fall under Article 131, as it wasn’t a dispute arising “in the context of the Constitution and the federalism it sets up. The matter arose out of the legal rights of a private consignor/consignee of goods and thus fell outside Art 131 and was cognizable by a subordinate court”

b) State of Rajasthan v UOI   

  

1997 elections- Congress lost. Home Ministry communicated to the CMs of Congress ruled states to dissolve the govt and seek fresh mandate. State govts approached SC under Article 131 seeking injunction against the dissolution of the State Legislative Assemblies under Art 356 Objections raised by the Center: 1. 131 covers only dispute b/w Govt of India and a ‘State’ which is not the same as ‘State Govt’. 2. 131 covers disputes in which States as such may be interested and not merely Govts of States which may come and go 3. There was no denial of any Const right to any State 4. No legal point in the case- based purely on political factors SC rejected all the contentions- held that the matter fell within Art 131 Refused to give restrictive meaning to Art 131 It is a valid question as to whether the Center has the right to dismiss the State Governments in the way that it did.

46

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It isn’t necessary for sttracting 131 that the plaintiff must assert a legal right in itself, it is sufficient that the plaintiff questions the legal and constitutional right asserted by the defendant (in this case the right to dismiss the govts) The States have the necessary locus standi. In a federation, the States are interested in defining the powers of the Central Govt, on the one hand, and their own, on the other.

c) State of Karnataka v UOI   

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

Commission of enquiry- Center instituted agasint CM of Karnataka Question is whether only the State Gov has this right. Whether State has locus? State contention: Commissions of Inquiry Act doesn’t authorize Central Govt to constitute a commission of enquiry in regard to matters falling exclusively within the State’s legislative and executive powers . UOI: Suit not maintainable as dispute isn’t b/w Centre and State, inquiry agasint the misdeeds of State Ministers which doesn’t affect State as Ministers and State were distinct entities. Court: Suit was maintainable under Art 131. Not prepared to take restrictive view of this Article and not prepared to distinguish b/w State and its Government. There exists an integral relationship b/w State and its Government and what affects the Government or the Ministers in their capacity as Ministers, raises a matter in which the State would be concerned. Art 131 is to ensure that the two govts act in their respective spheres. Under 131 not necessary that the plaintiff should have some legal right of its own to enforce, before it can file a suit. - interest in dispute as it is affected by it - relatable to the existene or extent of a legal right. It was held to be a Center-State dispute.

IV. APPELLATE JURISDICTION-NORMAL      

Interpretation of consti 133- wider, civil matter certificate under 134A. Finding of fact- if HC erred 134(c)- fit for appeal, exceptional circumstance 136- Special Leave to appeal and special ;eave petition. (2) – no certificate No appeal under purely administrative (diff quasi judicial, judicial and administrative direction)

a) Konkan Railway v Rani Construction (appeal by special leave)- Overruled   

Arbitration and Conciliation Act, 1996 S11- if arbitrator not appt then CJI appts CJI made such appt, appealed by the Parties Court refused to hear it. Characterized it as non-adjudicatory (not a quasi-judicial order)

47

b) S.B.P and Co. v Patel Engineering Ltd 

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This was a special leave to appeal based on the order of the High Court which dismissed a writ petition which challenged the appointment of Justice M.N. Chandurkar (Retd.) as the third arbitrator in the case between the appellants and the respondent. In this second case, the Court mentioned that there was no provision in case of a substitute arbitrator or in case the arbitrator refused to arbitrate. Furthermore, there was no provision in the arbitral agreement regarding the same either. On the basis of these factors, the Court applied the case of Yashwith Constructions v. Simplex India Piles Ltd., wherein it was held that a provision in the Arbitration Act cannot be read as filling an omission unless the provision explicitly seeks to eliminate said omission. Thus, the Special Leave for Appeal was allowed Overruled Konkan Railway case Held that power of appt is judicial and therefore susceptible to appeal under art 136 Considerations in appointing arbitrators In this case it was held that an order passed by CJ of Judge of HC can be appealed to SC under 136. However, order passed by CJI or Judge of SC, no appeal under 136 SLP can be dismissed w/o assigning reason- doesn’t mean lower court decision is correct Art 141, curative petition. No time limitation on SLP What is tribunal/quasi judicial - to characterize whether it functions judicially or not - There is a duty to act judicially

(read the features of art 136 from M.P. Jain, pg 229)

V. APPELLATE JURISDICTION- TRIBUNAL c) Bharat Bank v Employees of Bharat Bank       

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Industrial Tribunal constituted under the Industrial Disputes Act, 1947 IDA- conciliation, etc Award given by tribunal. Q- if it performs judicial function? Then appeal under 136 Dispute is judicial- thus allowed SLP Before an appeal can lie to the SC from a Tribunal, it must perform some kind of judicial function and partake to some extent of the character of a Court Court stated that the functions and duties of the Tribunal are very much like those of a body discharging judicial functions although it is not a Court and under Art 136, the SC has jurisdiction to entertain an appeal for leave to appeal from the Tribunal’s decision A tribunal would be outside the ambit of Art 136 if it is not invested w any part of the judicial functions of the State but discharges purely administrative or executive duties. This was a significant decision as it gave an expansive orientation to art 136 and at the same time brought a vast network of quasi judicial bodies under judicial control.

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“tribunal” in 136 doesn’t necessarily mean a court but includes within it all adjudicatory bodies, provided that they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions

d) Jaswant Sugar Mill v Laxmi Chand 

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Is conciliating officer a tribunal? - He had the power to grant or refuse permission to alter the terms of employment of the workmen at the instance of the employer - Dismissed 11 workmen over a labour dispute and said thw other 52 involved only had a passive role The appellant company then went to the Labour Appellate Tribunal (hereinafter “LAT”), appealing against the decision of the Conciliation Officer, but the LAT refused to consider the appeal as the Conciliation Officer was not an authority within the meaning of Section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The Company therefore, filed an SLP before the Supreme Court contesting both, the order of the Conciliation Officer as well as the refusal of the LAT in considering their appeal. The Court mentions that it is not merely judges or tribunals who necessarily take judicial decisions, it is any authority. The line which separates judicial decisions from administrative decisions is that a judicial authority has to act judicially, i.e. by hearing both sides and considering the implications from the point of view of justice and not from the point of view of how it affects the workers or citizens. To make a decision or act judicial, the criteria to be followed are: o If it is in substance a determination upon investigation of a question in the light od pre-existing legal rules; o It declares rights upon any person or imposes obligations upon any party affecting their civil rights; o That the investigation is subject to certain procedural attributes comparable to that of a Court, in hearing both parties and giving a decision objectively; On the basis of these criteria, the Court held that the decision of a Conciliation Officer has to be looked at from these angles and thus, is not purely administrative. On the basis of the relevant orders and Acts which established the post of Conciliation Officer, it was established that there was no procedure to be followed for him, there was no formal sitting, no formal pleadings, he could not compel attendance of witnesses, nor is he restricted to making an enquiry into all the evidences. The Officer has to undoubtedly act in a judicial capacity based on his role under Clause 29 of his authorizing Act, but this could not make him a “Tribunal” for the purposes of Article 136. Furthermore, as Section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950 was clear in allowing appeals to the LAT only from the Industrial Disputes Tribunal, the Conciliation Officer could not be a Tribunal for this purpose. Conciliating officer does not deliver binding judgment therefore not a judicial function. Further, although it did act quasi-judicially, to be a tribunal, the body must be vested with some of the judicial powers of the state On the basis of these reasons, the Court dismissed both appeals.

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e) Gujarat Steel Tubes v Mazdoor Union  

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Arbitrator under s10A if Industrial Disputes Act can be regarded as ‘tribunal’ for the purposes of s11 of the same act In this case, there was no prior enquiry conducted, so the tribunal had the duty to conduct and enquiry of its own and on the basis of the evidences so gathered, decide not only whether a prima facie case was made out, but also whether the charges have been made out. Therefore, under Section 11-A of the Act that allowed for the tribunal’s jurisdiction, the tribunal was allowed to conduct a de novo inquiry in order to determine guilt and punishment, and the arbitrator had full authority to adjudicate. Court has said that the arbitrator under s10A has power to bind even those who are not parties to the reference and source of the force of the arbitrator’s award derives from the parent statute. This ruling makes it possible to hold the arbitrator as a ‘tribunal’ for the purposes of article 136 as well. Arbitrator as he gives final decisions Test: 1. Body constituted by state 2. State must invest it w judicial function

f) L. Chandra Kumar v UOI  

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The important questions pertaining to the jurisdiction of tribunals in the wide array of Constitutional Law were considered in this case. The questions considered by the Court in this case are as follows: o Whether the exclusion of jurisdiction as contemplated by Article 323A(2)(d) and Article 323B(3)(d) in respect to matters under Article 323A(1) or Article 323B(2) respectively, hamper the power of judicial review as exercisable by the High Courts under Articles 226/27 and the Supreme Court under Article 32 of the Constitution? o Whether the Tribunals, established under Article 323A or Article 323B, have the power to test the Constitutional validity of an enactment/statute? o Whether the Tribunals can be said to be effective substitutes of the High Courts in the exercise of their power of judicial review? If not so, what changes need to be made to make them conform to their funding objectives? The Central Administrative Tribunal, which was established by the Administrative Tribunals Act, 1985, and the Statement of Objects of the Act in itself mentioned that the purpose of establishment of these Tribunals was to on the one hand, alleviate the burden of the various Courts involved and on the other hand, to simultaneously provide speedy justice to the aggrieved party. The Court further discusses the duty of the superior Courts in maintaining the Constitutional rule of law, as well as the fact that the salaries, allowances, tenure etc. are determined by the Constitution, in order to ensure complete transparency while discouraging legislative or executive encroachment into the domain of the judiciary. In lieu of these extra functions of superior courts under Articles 32, 226 and 227 of the Constitution, along with how the Courts have the duty to ensure that the decisions of inferior courts and tribunals do not fall short of legal correctness and judicial independence. Consequently, judges of the Tribunals cannot be considered effective substitutes for the judges of a superior court. 50

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Similarly, the powers of the High Court under Articles 226 and 227, as well as the power of the Supreme Court under Article 32 cannot be curtailed by a Tribunal established under Article 323A or Article 323B. Both powers can co-exist, but not to the exclusion of the HCs and the SC. The power of the HCs to exercise judicial superintendence over all lower courts and tribunals was held to thus, be a basic feature of the Constitution that could not be done away with. Thus, clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent that it excludes the jurisdiction of the High Courts and the Supreme Court, are unconstitutional. The actual matter of the cases was thus sent to a Division Bench for further adjudication.

VI. ADVISORY JURISDICTION- 143  

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President may refer- public imp, expedient SC has jurisdiction- may refuse to give opinion. Such a situation may arise If purely socio-economic or political questions having no constitutional significance are referred to the Court or a reference raises hypothetical questions. Exclusion from 131 can be under 143- broad enough President acts under the advice of the Cabinet The Court cannot be asked under 143(1) to reconsider any of its decisions

a) In re Kerala Edu Bill

due to the reference, several lacunae in the Bill was removed and mollified public opinion. - SC has to confine itself to questions referred to it by the President, it cannot travel beyond the reference. - The Court settled two significant points in its opnion: 1. rejected the contention that what was referred to it for its opinion is not a statute already put in force but a Bill yet to be enacted. 143(1) does contemplate the reference of a question of law that is yet to arise. 2. The circumstances that the President has referred only some questions regarding a Bill or an Act and not other which might also arise is no good reason for declining to entertain the reference.

b) In re Berubari, 

- gave timely guidance to the Central Gov as to how it should implememt the Indo-Pak boundary agreement b/w the PMs of India and Pakistan. Had the agreement been implemented in the way the govt was contemplating (through an Act of Parliament), great embarrassment would’ve been caused had the Act been declared unconstitutional later as it was bound to be in the SC’s opinion.

c) In re Keshav Singh: - deadlock b/w UP Legislature and Allahabad HC over the relative Court-Legislature role in the matter of legislative privileges. - matter could not go to the SC on appeal as the UP Legislature would not invoke the Court’s appellate jurisdiction after havin once taken the posn that courts have nothing to do w the legislature’s power to commit a person for its contempt - momentuous issues arisen- threatening the very basis of the Constitution solved due to the reference 51

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Court also stated that 143 is of wide amplitude and empowers the President to forward to the SC any question of public importance. Does not have to relate to matters in List 1 or List 3.

d) In re Cauvery: - Whether the Cauvery Water Disputes Tribunal est under the Inter-State Water Disputes Act, 1956, has pow to grant an interim relief to the parties to the dispute. - question was debated whther the SC’s opinion was binding on the President - Court rfused to express any definitive opinion for two reasons: 1. the specific Q didn’t form a part of the Presdiential reference in the instant case 2. any opinion expressed by the Court would be advisory e) In re Ram Janmabhumi: - whether a Hindu temple or religious structure existed in the area of Ram-Janmabhumi-Babri Masjid - refused to give opinion due to several reasons: 1. matter under reference was already the subject matter of litigation in the lower courts, wherein the dispute b/w the parties would be adjudicated and therefore the reference became superfluous and unnecessary. (Can refuse to answer the question ut must give adequate reasons for doing so ) 2. the reference favoured one religious community over the other. Purpose of the reference was thus opposed to secularism and was unconstitutional; the reference served no const purpose 3. Govt proposed to use the Court’s opinion as a springboard for negotiations, Didn’t propose to settle dispute in terms of the Court’s opinion 4. To answer the Q necessary to take expert opinion of historians, archaeologist etc as well as evidence and have the cross examined 5. Any opinion would be disfavored by the other side- impair the credibility of the Court. f) Third Judges’ Case 

Clarifications on the following points in the judgment of Advocates on Record Asscn v UOI (confusion because 9 judge Bench and 5 judgments were delivered): 1. Consultation b/w CJI and other Judges in the matter of appt of SC and HC judges 2. Transfer of HC Judges and judicial review thereof 3. The relevance of seniority in the making of appt to the SC

VII. COURT’S POWER TO DO COMPLETE JUSTICE 

Article 142- complete justice in any manner - withdraw from lower court - curative petition

a) Rupa Ashok Hura v A Hura 

Q before the Court: 1. whether an aggrieved person is entitled to any relief against a final judgment/order of the Supreme Court, after dismissal of the review petition, under Article 32 or otherwise. 2. whether a writ petition of certiorari could be entertained in one High Court, against the order of another High Court, or in the Supreme Court, against the order of a High Court or a previous Supreme Court order 52

- this is answered in the negative 3. validity of curative petitions. (more imp Q) 

The situations may arise where, because of human fallibility, a rarest of rare case arrives wherein the Court may have to consider reviewing its own decision and for this purpose, review jurisdiction of the court has been granted under Article 137 itself.  This however, in the case of curative petitions, has to also be considered from the point of view that a curative petition may be exercised in the form of a second review petition, even after the dismissal of the first review petition.  derived from 142, entertained in violation of natural justice: abuse of power of Court  curative petition can be filed on strong grounds such as: 1. Violation of the principle of natural justice (right to be heard) 2. Biased judge 3. Abuse of the process of the Court (above list isn’t exhaustive) -While opening the channel of review, several conditions imposed: 1. grounds stated in the curative petition must have been stated earlier in the Review Petitions. 2. Cert. by Senior Lawyer of SC that above requirement have been fulfilled 3. Power of exemplary damage if at any stage of consideration the Bench holds that the petition is w/o merit 4. Petition first to be circulated among the three senior-most judges and the judges who passed the judgment complained of. Review Petitions:  Article 137: Subject to parliamentary legislations, discovery of news and important matters.  A review petition is not appeal. Specific reasons: A.R. Antulai v. R.S. Nayak; CBI court, challenege against CM of Bombay under Prevention of Corruption Act, Bombay HC to withdrawviolation of FR, court reviewed the matter and referred back. Article 14 and 21, arbit. and due process.  petition of appeal cannot be taken as a review petition.  Petition of review had to be filed within 30 days etc (other reasons why the review petition wasn’t the same as a petition for appeal)

VIII. WRIT JURISDICTION  Art 226- writ jurisdiction of HC- Fundamental as well as Legal right  wider than writ juris of SC under art 32  HC can issue orders  Not interfere w Special Courts  Not every dispute but if legal obligation not fulfilled  Writ of certiorari (quash) and Prohibition (stop)  Issued on practically similar grounds  Object of prohibition is prevention not cure,

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Can issue both together: prohibition to prevent the proceedings from going on further and certiorari to quash what has already been done by it. In the absence of very cogent and strong reasons, the issuance of writ of prohibition is improper The jurisdiction to issue certiorari is a supervisory jurisdiction and the HC/SC cannot act as an appellate court while exercising it. Certiorari can be issued under 226 to a court martial proceeding of judicial- quasi judicial bodies 1. failure to exercise jurisdiction 2. Evidence not considered (findings are based on no evidence) 3. Unconstitutional order acted by SC (proceeds to act under a law which in itself is invalid, ultra vires or unconstitutional. 4. Violation of the principle of N. justice 5. Acts in contravention of fundamental rights 6. Exercise of excess jurisdiction 7. Error of law apparent on the face of it Mandamus 1. command to public authority to perform duty belonging to his office 2. where admin discretion is exercised illegally 3. eg: if tribunal omits to decide a matter it was supposed to decide it can be commanded to determine the question which it has left undecided. 4. The object of mandamus is to prevent disorder from a failure of justice and is reqd to be granted in all cases where law has est no specific remedy and where justice despite demanded has not been granted. 5. It is a discretionary remedy and the HC has full discretion to refuse to issue the writ in suitable cases 6. Conditions: 1. legal duty of public nature. The performance of this duty must be imperative and not discretionary 2. Petitioner should have the right to the performance of the duty - Not be issued against a pvt individual to enforce a pvt right such as a contract 3. Right sought to be enforced must be subsisting on the date of the petition 4. Writ of mandamus cannot be issued in anticipation of injury (as a general rule) Quo Warranto 7. by what authority (he is holding that public office) 8. only in respect of a public office of substantive character. Eg where it cant be used- questioning the appt of a college principal 9. no need of personal injury by petitioner or to seek redressal for any grievance 10. Court may oust a person from a office to which he isn’t entitled 11. appt of judges Habeas Corpus: 12. To secure release of persons detained unlawfully or w/o legal justification. 13. Secures immediate determination of a person’s right to freedom. 14. Unlwaful in this context is that: a) not in accordance w the law b) procedure est by law hasn’t been followed 54

15. 16. 17. 18.

The detention shouldn’t contravene art 22 Applicant must show a prima facie case of unlawful detention Can examine the legality of the detention w/o requiring the detained person to appear before it Habeas corpus isn’t available to question the correctness of the decision of a legally constituted Court of competent jurisdiction 19. even pvt persons Article 227: Administrative and Judicial superintendence; Article 225: Juris. of HC Article 228: Power to withdraw from subordinate court. HC has power to review own Jurisdiction.

IX. APPOINTMENT OF JUDGES Article 124: There shall be a Supreme Court of India consisting of a Chief Justice of India. Article 124(1): Strength. Article 124(2): Appointment by President- consult CJ and Council. Prior to 1993: Executive primacy a) S.P. Gupta v UOI-First Judges’ Case:   

When appointing, CJ knows best from concurrence- First Judges Case SC advocates on records association, created collegium, consultation with CJ and 2 senior judges. Proposal of appointment CJI Executive can decline recommendation however, 2nd Judges case tellsonce declined and recommended again, they are binding (by good convention);  collegium system justified because of separation of power. Therefore, primacy of opinion on one handexecutive can reject.  Matter regarding appt of HC as well as SC judges came before SC (this was a PIL)  Main Q considered by the courts: of the several functionaries participating in the process of appt of a HC Judge, whose opinion amongst the various participants should have primacy in the process of selection?  Majority view- opinions CJI and CJ of the HCs were merely consultative and that pow of appt resides solely and exclusively in the Central govt and it could override their opinion.  View of CJI didn’t have any primacy in the matter of appt of HC Judges, primacy lay w Central Govt which could decide which could decide after consulting the various Constitutional functionaries but not bound by the same  Thus gave literal meaning to the word ‘consultation’ in arts 124(2) and 217(1). Primacy of CJI & collegium: concurrence. Convention of appointing CJI All India seniority for alleviating to SC b) Supreme Court Advocates –on-record Asscn v UOI (1993) (2nd Judges’ Case) 

A public interest writ petition was filed in the SC by the Lawyers’ Association raising several issues concerning the judges of the SC and the HCs. This petition was considered by a bench of nine judges. ‘ 55

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The majority opinion, delivered by Justice J.S. Verma, answered the question pertaining to primacy of the Chief Justice’s opinion by emphasizing that the question had to be considered in the context of achieving the constitutional purpose of selecting the best suitable for composition of the Supreme Court. Referring to the consultative process envisaged under Article 124(2), the Court emphasized that this procedure indicates that the Government does not enjoy primacy or absolute discretion in the matter of appointment of Supreme Court judges. The Court, when considering the position of the Chief Justice with respect to appointment of judges, noted that the opinion of the Chief Justice should have the greatest weight, and that the selection should be the result of a participatory consultative process in which the executive should have the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. The Court mentioned that the use of the word ‘consultation’ instead of ‘concurrence’ indicated that absolute discretion was not to be given to any one, not even the CJI. The Court further clarified that the primacy of the opinion of the Chief Justice of India meant the primacy of his opinion in consultation with his senior colleagues who are required to be consulted by him. Therefore, the meaning of “opinion of the Chief Justice” is reflective of the opinion of the judiciary. The Court laid down the following propositions pertaining to the appointment of judges of the Supreme Court:  Initiation of the proposal for appointment of a Supreme Court judge must be by the Chief Justice.  In exceptional cases alone, on disclosure of reasons as to why a person recommended was not suitable for appointment, the recommendation made by the CJI may not be accepted. However, if the stated reasons are not accepted by the CJI and other SC judges consulted, the appointment should be made as a healthy convention.  No appointment of an SC judge can be made by the President unless it is in conformity with the CJI’s final opinion formed in the aforementioned manner.  The advice given by the Council of Ministers in the matter of appointment of a SC judge, is to be given in accordance with Article 124(2) as interpreted by the Supreme Court.  All consultation with everyone involved, including the judges, must be in writing as the expression of opinion in writing is an inbuilt check and ensures due circumspection.  Appointment of the CJI ought to be the senior-most judge of the Supreme Court considered fit to hold the office. Doubts about the fitness of a Supreme Court judge to hold the office of CJI is what alone may permit a departure from the long-standing convention of appointing the seniormost judge as the CJI.  Inter se seniority among HC judges and their combined seniority on an all India basis should be given due weight when making appointments from HC judges to the Supreme Court. Similar to the point about the SC, unless there is a reason to justify departure, order of seniority must be maintained between them while making their SC appointment. The main purpose was to reiterate the importance of minimalizing political influence in the judicial process.

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c) In Re: Special Reference 1 of 1998 (3rd Judges’ Case) 

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This decision arose because of an advisory opinion as demanded by the President under Article 143. In this opinion, the SC has laid down certain clarifications in regard to appointment of SC judges.  In making his recommendation for appointment to the SC, the Chief Justice ought to consult four senior-most puisne judges of the SC. Thus, the collegium to make recommendation for appointment should consist of the Chief Justice and four senior-most judges.  The opinion of all members of the collegium in respect of each recommendation should be in writing.  The view of the senior-most SC judge who hails from the HC where the person recommended comes from must be obtained in writing for consideration by the collegium.  If a majority of the collegium is against the appointment of a particular person as a judge, the appointment shall not be made. However, if even two judges of the Court express strong views for good reasons, that they are against the appointment of a particular person, that person should not be appointed.  The rule of seniority was now made subject to certain exceptions:  HC judge of outstanding merit can be appointed as a SC judge regardless of his standing in the seniority list.  HC judge may be appointed as a SC judge for good reasons among other several judges of equal merit, if for example, the region in which his parent HC is situated is not represented on the Supreme Court Bench. Thus, the responsibility of appointment was taken away from the Central Executive and placed in the hands of a collegium of judges. The sphere of consultation was expanded, as the earlier consultation was only of a collegium of the CJI and two senior-most judges of the SC. Thus, this case formalized the process of appointment of judges to the SC as each judge’s opinion was given equal value and had to be obtained in writing.

d) Supreme Court Advocates –on-record Asscn v UOI (2016) (NJAC Judgment) 

This decision arose because of an advisory opinion as demanded by the President under Article 143. In this opinion, the SC has laid down certain clarifications in regard to appointment of SC judges.  In making his recommendation for appointment to the SC, the Chief Justice ought to consult four senior-most puisne judges of the SC. Thus, the collegium to make recommendation for appointment should consist of the Chief Justice and four senior-most judges.  The opinion of all members of the collegium in respect of each recommendation should be in writing.  The view of the senior-most SC judge who hails from the HC where the person recommended comes from must be obtained in writing for consideration by the collegium.  If a majority of the collegium is against the appointment of a particular person as a judge, the appointment shall not be made. However, if even two judges of the Court express strong views for good reasons, that they are against the appointment of a particular person, that person should not be appointed.  The rule of seniority was now made subject to certain exceptions:  HC judge of outstanding merit can be appointed as a SC judge regardless of his standing in the seniority list. 57

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HC judge may be appointed as a SC judge for good reasons among other several judges of equal merit, if for example, the region in which his parent HC is situated is not represented on the Supreme Court Bench. Thus, the responsibility of appointment was taken away from the Central Executive and placed in the hands of a collegium of judges. The sphere of consultation was expanded, as the earlier consultation was only of a collegium of the CJI and two senior-most judges of the SC. Thus, this case formalized the process of appointment of judges to the SC as each judge’s opinion was given equal value and had to be obtained in writing.

3rd Judges Case- did not clarify, Collegium expanded- CJI + 4 14th report of Law Commission- setting up of Judicial Commission.

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AMENDABILITY

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TAXATION POWERS: TRADE AND COMMERCE AND INTERCOURSE A. Atiabari Tea Co. v. State of Assam [(1961) 1 SCR 809]  The constitutionality of the Assam Taxation (On Goods Carried by Roads or Inland Waterways) Act was challenged in this case.  It appears that the appellants are growers of tea in West Bengal or in Assam and carry their tea to the market in Calcutta from where the tea is sold for consumption in the country or is exported for sale out of the country.  The Act was passed by the Assam Legislature and by virtue of this Act, there was a tax levied on the goods which were transported by road or through inland waterways in the State of Assam. While the appellants paid the tax, the same was challenged under Article 226 before the Assam HC who dismissed their writ petition.  The primary question in this case pertains as to whether the impugned Act violate the provisions under Part XIII of the Constitution, which constitute Trade, Commerce and Intercourse.  The Court in this case, held that taxation simpliciter is not within the terms of Article 301.  In this regard, the initial Section 297 of the GOI Act, 1935 was also discussed. Furthermore, the power of taxation as envisaged under the Union List under Entries 30 and 89. However, taxes on goods and passengers carried by road or by inland waterways covered under Entry 56 of List II.  Parts XII and XIII supposed to be self-contained in their respective fields.  The comprehensive and inclusive sense of freedom of trade, commerce and intercourse as being free from taxation was pointed out by the appellants, and the Court rejected this, maintaining the stance that it is impossible to think that the framers intended absolutism in free trade, to the extent that it would be absolutely free of any taxation whatsoever.  Taxation is discussed in this case not necessarily as a restriction, but as a wherewithal to improve the conditions of the roads or waterways the tax in the present case sought to impose tax on.  The arguments in favour of taxation were: o Taxation implies it necessarily being in public interest; o The power to govern is vested in the government and in governance, taxation needs to perhaps be imposed on a wider array of fields, and the entries in the three legislative lists would be redundant if taxation simpliciter was within the ambit of Article 301. o If the appellants’ arguments accepted, then every tax would have to go through the gamut of Article 303 and 304, and this would retract from the limited state sovereignty as envisaged by the Indian Constitution. o Taxes would become justiciable and the Legislature would have to satisfy the Courts regarding every tax, a course that would affect the division of powers and which was sought to be prohibited in India. o Taxation on movement of goods and passengers is not necessarily an impediment.  Article 301 only sought to crease out customs or practices which were necessarily impediments to free flow of trade and commerce. Article 304, while recognizing the power of a State to tax, necessarily requires that the goods taxed be manufactured or produced within the State.  On a fair construction of the provisions in Part XIII, there were certain points made out by the Court: 60

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o Trade, commerce and intercourse was not absolutely free, and was subject to taxation by Parliament or State Legislatures; o Freedom under Article 301 does not mean freedom from taxation simpliciter, but it does mean freedom from any tax which would necessarily impede the free flow of trade in the State; o The freedom envisaged in Article 301 is subject to non-discriminatory restrictions imposed by Parliament or State Legislatures (Article 302); o In cases of emergency or scarcity, even discriminatory taxation may be made by the Parliament or State Legislatures (Article 303(2)); o Reasonable restrictions may be imposed by State Legislatures in public interest (Article 304(b)); o Non-discriminatory taxes may be imposed on goods coming in from other States, if similar taxes are imposed on goods manufactured or produced within the State (Article 304(a)); o Restrictions imposed by existing laws have continued, insofar as the President has not directed otherwise (Article 305); The argument of discrimination was also made, as it was only tea carried in chests and jute carried in bales which were taxed. To this, the Court replies that the Court’s position was not to explain to the Legislature any alternative methodology or any form or variety of tax that was to be imposed. This was entirely at the Legislature’s discretion. THE MAJORITY DECISION: Beyond paragraph 26. The majority however, maintained the positivist stance that Article 301 had a non obstante clause, which read, “Subject to the other provisions of this part, there shall be free flow of trade, commerce and intercourse throughout the territory of India.” And thus the majority maintained that it was only to the other provisions of Part XIII that Article 301 was subject. Part XII restrictions could not be said to be included within the ambit of Articles which could restrict free trade and commerce. Article 302 allows for the Parliament to impose restrictions on inter-State trade, commerce and intercourse along with intra-State trade, commerce and intercourse. Article 302 was read as an exception to Article 301, in the sense that it allowed for restrictions in case it was necessary in public interest. Article 303(1) was then referred to, which prohibited Parliament from making any discriminatory law preferring one State which would hamper the flow of free trade. Article 303(2) is the exception, in and how it allows for discriminatory treatment in case of scarcity of certain goods or in case of emergency. It is urged that Article 303(1) explicitly makes references to the Entries in the Seventh Schedule which refer to trade and commerce, indirectly providing the scope of Article 301 itself as being restricted to those Entries alone. Article 304(a) provides that foreign State goods be treated the same way that intra-State goods are. Furthermore, Article 304(b) provides the manner of said treatment. Thus, Article 304 is treated as another exception to Article 301. Three conditions when passing an Act under Article 304(b): o Prior sanction of the President; o The Legislation must be in public interest; o The Legislation must impose restrictions which are reasonable; The general agreement therefore is that taxing laws do come under the ambit of Article 301, but it is also agreed that it is only those taxes which directly and immediately impede the free flow of trade and commerce which come under the ambit of this Part. Legislations under Entry 56, List II were held to be subject to the provisions of Part XIII. 61

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The Act was thus held to have directly violated free trade and commerce, and as it did not comply with Article 304(b), it was held to be void and unconstitutional.

B. Automobile Transport Ltd. v. State of Rajasthan and Ors. [(1963) 1 SCR 491]  In this case, the Court which was of a larger Bench as compared to the Atiabari Tea Co. case, agreed with the earlier judgment, hereby making one clarification that regulatory measures or compensatory taxes would not come under the purview of Article 301.  In the present case, the Motor Vehicles Tax in Rajasthan which was the tax so challenged, was upheld as it was of the nature of a compensatory tax and thus, not subject to the Part XIII restrictions.  Justice Subba Rao, in his part of the judgment, concurred with Justice Das, who gave the first part of the judgment. To summarize his points: o Article 301 declares a right of free movement of trade without any obstructions by way of barriers, inter-State or intra-State, or other impediments operating as such barriers. o The said freedom is not impeded, but, on the other hand, promoted, by regulations creating conditions for the free movement of trade, such as, police regulations, provision for services, maintenance of roads, provision for aerodromes, wharfs etc., with or without compensation. o Parliament may by law impose restrictions on such freedom in the public interest; and the said law can be made by virtue of any entry with respect whereof Parliament has power to make a law. o The State also, in exercise of its legislative power, may impose similar restrictions, subject to the two conditions laid down in Article 304(b) and subject to the proviso mentioned therein. o Neither Parliament nor the State Legislature can make a law giving preference to one State over another or making discrimination between one State and another, by virtue of any entry in the Lists, infringing the said freedom. o This ban is lifted in the case of Parliament for the purpose of dealing with situations arising out of scarcity of goods in any part of the territory of India and also in the case of a State under Article 304(b), subject to the conditions mentioned therein. And o The State can impose a non-discriminatory tax on goods imported from other States or the Union territory to which similar goods manufactured or produced in that State are subject.  On the basis of these reasons, the appeal was dismissed in this case and the tax, being of a compensatory nature, was upheld. C. State of Mysore v. H. Sanjeeviah [(1967) 2 SCR 361]  Mysore Forest Act, 1900, by virtue of Section 37, the transit of timber, firewood, charcoal and bamboos from all lands was regulated.  Respondent filed a petition under Article 226 contending that the provisos added to allow this regulation was in violation of the freedom of trade, commerce and intercourse under Article 301.  Article 304 not applied in this case, as it was a pre-constitutional executive order that led to these rules, and it was thus, a case wherein the enactment of the two provisos clearly affects the flow of trade, commerce and intercourse within the territory of India.  On this basis and applying the Automobile Transport Co. case, the appeal was dismissed and the regulations were held to be invalid. 62

D. Jindal Stainless Steel Co. v. State of Haryana and Ors. [  Complete from notes later.

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EMERGENCY PROVISIONS    

Unique provisions to India as no other country has it Art 352 Art 356 Art 360

I. NATIONAL EMERGENCY   

Art 352- but needs approval from Parl. Review of emergency proclamation is possible Article 19 cannot be suspended during an emergency (article 359) Review comes from S.R. Bommai

a) ADM Jabalpur v Shiv Kanth Shukla (overruled)  The issues in the said case were1. Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus be maintained in High Court by a person challenging his unlawful detention? 2. Was suspension of Article 21 fit under rule of law? 3. Does detenue hold locus standi in Court during the period of Emergency?  Held that in view of the Presidential order dated 27 June 1975 (the proclamation of emergency), no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.  fundamental rights, suspended during emergency  The Court cannot question the authority or legality of such State’s decision  

However, later, 48th and 54th Amendment- Arts 20 and 21 is not suspended during emergency Puttaswamy- expressly overruled ADM Jabalpur

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Difference of degree b/w internal disturbance, external aggression and armed rebellion. Here 44 th Amendment removed ‘internal aggression’ because of the acts of Indira Gandhi National emergency can be restricted to part of India where border threat or secession threat Advise rendered to the President cannot be reviewed but the material on which the advise was given can be reviewed Advise of whole CoM not just the PM Emergency can be invoked at any time and it ceases to expire after one month if not approved by LS and RS (majority of number of House, 2/3rd members present and voting) Emergency of 1 year can be extended by 6 months by subsequent motion it can be extended by 6 months If House reject, then if disapproved by LS, immediate removal - disapproved by RS then expires after 1 month When emergency then:

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exec power of Union extended to States peace time distribution of legislative powers is suspended. State Legislatures continue to function as usual and may make any law in their assigned area but Parl becomes empowered to legislate even in the assigned State sphere. Such law comes to an end to the ectent of the emergency - Juris of HC and SC cannot be taken away - Center has pow to issue directions to states (Art 256, Art 257 read w Art 355)- this makes the directions binding - Leg made during emergency, valid for 6 months post the emergency. (can be extended by one year at a time) - Enforcement of fundamental rights are suspended (not the rights as such) except for articles 19-21. - Officers under states can be controlled. To parts where emergency not exercised, control can be exercised. - Art 354 can alter financial distribution, allow for redistribution of net proceeds- Art 279  Has to be laid before LS and RS - If financial year ends, charged management also ends. - Can levy tax which ordinarily falls under State List Art 358 suspends Art 19, Art 352 suspends remedies Art 355 imposes duty to Union to protect states. Read w Art 256, 257 -

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a) Bhut Nath v State of West Bengal No judicial review as Emergency is political emergency 

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38th Am- barred judicial review of proclamation of emergency It also barred judicial review of overlapping emergency proclamations, or ordinances promulgated by the President or by governors, and of laws enacted during emergencies that contravened Fundamental Rights 44th Am- repealed 38th Changed due to Justice Bhagwati in Minerva Mills case: in proclaiming emergency, whether the President had applied his mind or acted unconst or in a mala fide way, the mergency couldn’t be excluded from the scope of judicial review. Manifest arbitrariness is a ground for unconstitutionality Subjective as decision must be left to Executive. Wide range of situations, correctness or adequacy of facts cannot be looked into by the Court Satisfaction of the President is condition of President precedent to Art 352 Gov. report not necessary for State Emergency Notwithstanding art 352(5), review on some grounds still possible - Court may issue mandamus to Center to revoke the Emergency if mala fide shown. But the onus on showing the mala fide is very high.

II. STATE EMERGENCY  

Art 355 to be read w Art 356 Art 4, s4 of US Consti compared to Art 355 (Protection by Union to States)- similar to the Australian Consti, s119 - in practice, both juris have acted like out Art 356. Operative on failure of consti machinery 65

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Art 356- Report of Gov or otherwise - proclamation of President can even be used to susoend any officer of State except HCs Art 357- Pow of state leg can be delegated to President who can further delegate it Law in state is valid unless House repeals it LS can approve Emergency within 30 days of sitting. Emergency can be extended by subsequent motion but cannot be extended beyond 3 years Beyond 1 year, resolution to extend has to come from the Parliament Resolution can come only if National Emergency is to be extended and Election Commission certifies that Gen. Election cannot be held in States at that point Gov is representative, not agent of the Center - oath of Consti taken into account when Gov prepares his report Situations where emergency can be declared: 1. No party has a majority 2. Govt lost majority due to defection 3. Govt working under non-constitutional grounds 4. Security threatened due to war

a) BJ Anand v President of India President’s justification is not justiciable b) S.R. Bommai v UOI   

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Janata Dal Ministry headed by S.R. Bommai was in office in Karnataka. A number of members of the party defected and there arose the question of whether Bommai’s govt had a majority in the Assembly. The CM proposed to the Gov to hold a floor test to test his majority No attempt to find alternative govt but reported to pres that as Bommai had lost his majority and no other party was in a position to form the govt, action shpuld be taken under 356(1). Thus, proclamation of emergency was issued. State Emergency had also been declared in 7 other states . MP HC had a differing opinion – invalidated the proclamation of emergency [ at this time, 356(5) had been repealed] 9 judge Bench of SC heard the case. Held that in Karnataka, Meghalaya and Nagaland it was unconst but not so in MP, Rajasthan and Himachal Pradesh. Situation must be such that Govt cannot be carried on in any way contemplated Art 356 to be used as a last resort - Where not, issue of Art 356 isnt justified All judges agree that it can disallowed(?) if malafide Majority: - Proclamation based on which material - extraneous grounds Minority: Non-justiciable as political question hence judicial hands off Floor test upheld. Loss of majority has to be followed if alternate govt.- Consideration before Emergency declared Pre poll alliance to be given preference, post-poll alliance to be considered if they make claim Pre-poll alliance to be automatically called. Post poll alliance to stake claim. 66

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Propositions enunciated in relation to Article 356(1) and the scope of Judicial Review thereunder: (do from M.P Jain, pg 725) – IMP Federalism has been designated as a basic value in the Indian Constitution, Dismissla of a dulty elected State Assembly by the Central Govt is really a negation of the federal concept- pow under 356(1) thus has to be exercised sparingly, scrupulously and w circumspection. Abuse of this pow will disturb the federal balance. Court stated that as long as a State Govt is functioning within the discioline of the Constitution and pursues an ideology consistent with the constitutional philosophy then its dismissal under 356(1) solely on the grounds that a different political party has come to power at the Centre is unwarranted and unjustified. If any State Govt is acting in a manner that might sabotage the secularism of the country, it can be lawfully regarded as giving rise to a situation where the State govt cannot be carried on in accordance w the principles of the Constitution.

c) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly 

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The gov postpones the Assembly session in Arunachal Pradesh, contrary to the aid and advice of his Council. He further advised the Deputy Speaker to preside over the Assembly when considering the removal of the Speaker. Didn’t give the CM the opportunity to conduct a floor test and recommended action under 356. A Constitution Bench of the SC invalidated this action (following S.R. Bommai), compelling the President to withdraw the action under 356 after 6 months. Further, it was held that summoning of any House w/o aid and advise of the CoM was unconst.

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