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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
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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
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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.
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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)
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II. DOCTRINE OF COLORABLE LEGISLATION
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.
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.
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- 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
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.
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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.
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a) Zaverbhai v State of Bombay (E)
b) Tikaramji v State of UP
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
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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
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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
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(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]
- 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
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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
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)
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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.
Pre constitutional cases- power to pass ordinance was of absolute nature not necessarily emergency.
Prerogative power- No judicial review
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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.
22
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)
Rules of Procedure (Rule 140) in Vidhyan Sabha of Bihar- copy of ordinance was not sent to assemnly
by governor
(missing notes)
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 UOI-
if 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
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.
28
- 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.
-
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??)
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.
Idea of profit has changed since Jaya Bachan. Before had to show the person is taking some pecuniary gain
(This is still a grey area, what will be treated as Office and Profit is still very subjective)
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 10-
exceptions, para 3- exception when not treated as defection
a) Kihoto Hollohan
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
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.
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
34
- Minority (correct): Art 105(2) is meant to protect from consequences of blasphemy, etc. Not for every nexus-
bribe 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.
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
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
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
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
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.
42
Court denies that it is an essential religious practice
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
44
c) Delhi J. Service Asscn v State of Gujarat
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 129-
Pow of judicial superintendence
Therefore punish for contempt of court
Guidelines to be followed:
1. If a judicial officer is to be arrested then the intimation has to be given to the District judge or the High
Court.
2. If there is a need for immediate arrest, then the arrest need to be an formal or technical arrest.
3. Facts of such arrest should be effectively communicated to session judge or to the District Judge.
4. The arrested judicial officer shall never be taken to the police station without the prior order from the
District/sessions judge.
5. All the communications should be provided to the judicial officer for his communication with his family
members, lawyer and with District/sessions judge.
6. Neither panchnama, nor the Medical tests should be done except in the presence of the legal adviser.
7. 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.
45
II. ORIGINAL JURISDICTION-ART 32
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 (???)
46
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.
47
b) S.B.P and Co. v Patel Engineering Ltd
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
48
“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
49
e) Gujarat Steel Tubes v Mazdoor Union
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
50
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.
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
- 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.
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 withdraw-
violation 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)
53
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. The detention shouldn’t contravene art 22
16. Applicant must show a prima facie case of unlawful detention
17. Can examine the legality of the detention w/o requiring the detained person to appear before it
18. Habeas corpus isn’t available to question the correctness of the decision of a legally constituted
Court of competent jurisdiction
19. even pvt persons
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
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 senior-
most 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.
56
c) In Re: Special Reference 1 of 1998 (3rd Judges’ Case)
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.
57
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.
58
AMENDABILITY
59
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
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.
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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.
62
D. Jindal Stainless Steel Co. v. State of Haryana and Ors. [
Complete from notes later.
63
EMERGENCY PROVISIONS
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
However, later, 48th and 54th Amendment- Arts 20 and 21 is not suspended during emergency
Puttaswamy- expressly overruled ADM Jabalpur
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
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.
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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
67