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 Law (Sample Theory)

Judiciary

1.1 JUDICIARY

Supreme Court
*Supreme Court is the Guardian of the Constitution.
Composition of the Court : Originally, the total number of Judges was 7 but in 1977 this was
increased to 17 excluding the Chief Justice. In 1986 it has been increased to 25 and in 2009 the number
has been increased to 30 excluding the Chief Justice. Thus the total number of Judges are 31 in the
Supreme Court.
Appointment of Judges
Position before 99th Amendment (2014) : The Judges were appointed by the President. The Chief
Justice of the Supreme Court was appointed by the President with the consultation of such of judges
of the Supreme Court and the High Courts as he deemed necessary for the purpose. But in appointing
other judges President would always consult Chief Justice of India. (Art. 124). Under Art. 124(2) the
President, in appointing other Judges of the Supreme Court was bound to consult the Chief Justice of
India. But in appointing the Chief Justice of India he was not bound to consult anyone.
Qualification of Judges (Art. 124(6))
He must be a citizen of India and
 Has been Judge of a High Court at least for five years,
 Has been for at least ten years an advocate of a High Court,
 Is in the opinion of the President. A distinguished jurist
Every person who is appointed as a Judge of the Supreme Court before entering upon his office
has to make and subscribe an oath or affirmation before the President, or some other person appointed
in that behalf by him. (Art. 124(6))
Tenure and Resignation of Judges
A Judge of the Supreme Court shall hold office until he attains the age of 65 years. A judge may
resign his office by writing to the President.
Removal of Judges
A judge of the Supreme Court is removable from his office, only on the grounds of proved
misbehavior or incapacity. Parliament is empowered to regulate the procedure for the investigation and
proof of such misbehavior or incapacity. Whatever the procedure, each House will have to pass a
resolution supported by two-thirds of the members present and voting and a majority of the total
membership of the House and address it to the President. The President will then issue orders for
removal of the judge.
Jurisdiction of The Supreme Court
The jurisdiction of the Court can be kept in four categories, viz., original, writ, appellate and
advisory.
1. Original Jurisdiction (Art. 131)
A court is said to have original jurisdiction when it possesses the authority to hear and determine
the case in the first instance. The Supreme Court of India possesses original and exclusive jurisdiction
in any dispute:

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 Law (Sample Theory)

(a) Between the Government of India, and one or more states or

(b) Between the Government of India and any state or states on one side and one or more
other states on the other or
(c) Between two or more states.
The dispute relating to the original jurisdiction of the Court must involve a question of fact or law
on which the existences of a legal right depends. A legal right is defined "as any advantage or benefit
which is in any manner conferred upon a person by a rule of law". The Supreme Court has no original
jurisdiction in disputes between individuals or between associations or local bodies.
It is not authorized to investigate a dispute arising out of any treaty, covenant, engagement or
agreement which was entered into before the commencement of the Constitution. These disputes may
be referred by the President to the Supreme Court for its advisory opinion.
Parliament may, by law, exclude the jurisdiction of the Supreme Court in:
(i) Disputes between States regarding the use, distribution or control of waters of any inter
state river or river valley.
(ii) Matters referred to the Finance Commission
(iii) Adjustment of certain expenses between the Union and the states under Article 290.
(iv) Disputes specified in the provision to Articles 131 and 363(1).
(v) Adjustment of expenses between the Union and the states under Articles 257 (4) and
258(3).
2. Writ Jurisdiction (Article 32)
Under Article 32, the Supreme Court can entertain an application for the issue of a constitutional
writ for the enforcement of Fundamental Rights. This is termed as original jurisdiction as the aggrieved
party can move the Apex court directly through a petition instead of coming through a High Court by way
of an appeal. Basu is of the view, "…it should be treated as a separate jurisdiction since the dispute in
such cases is not between the units of the Union but an aggrieved individual and the Government or any
of its agencies." The jurisdiction under the article is not analogous to that of under Article 131.
3. Appellate Jurisdiction
The appellate jurisdiction of the Court can be divided into four main categories of cases;
Constitutional, Civil, Criminal and Special.
(a) Constitutional Cases (Art. 132): According to Article 132(1) an appeal shall lie to the Supreme
Court from any judgement, decree or final order of a High Court in the territory of India, whether in a civil,
criminal or other proceedings, if the High Court certifies that the case involves a substantial question of
law as to the interpretation of the Constitution. If the High Court refuses to give such- a certificate, the
Supreme Court can grant special leave to appeal, if the Court is satisfied that the case involves a
substantial question of law as to the interpretation of the Constitution. The Supreme Court answered the
question in the affirmative. This makes the Court the ultimate interpreter and saviour of the Constitution.
(b) Appeal Civil Cases (Art. 133): An appeal shall lie to the Supreme Court from any judgment,
decree or order in a civil proceedings of a High Court only if the High Court certifies under Art. 134A-
(a) That the case involves a substantial question of law of general importance and,
(b) That in the opinion of the High Court the said question of needs to be decided by the
Supreme Court.
The Supreme Court's appellate jurisdiction in civil cases is of limited character. In civil matters
after passage of the 30th Constitutional Amendment Act of 1972 (where no constitutional question is
involved), appeal could lie to the Supreme Court, if the High Court certified that any of the under-
mentioned conditions were satisfied: That the amount or the value of the subject matter of the dispute
is not less than Rs. 20,000 and that the case is a fit one for appeal to the Supreme Court irrespective
of value.
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It may be pointed out that the appellate jurisdiction of the Court in civil cases can be enlarged,
if Parliament passes a law to that effect. Further if the court is hearing the appeal, it is open to any party
to challenge a decision of the High Court as invalid sofar as it deals with the interpretation of the
constitution.
(c) Appeal in Criminal Cases (Art. 134): The Draft Constitution had made no provision for the
appellate jurisdiction of the Court in the criminal cases. Many members considered it a serious omission
of the Constitution. Eventually the provision was incorporated in the Constitution, substantially conforming
to the views of K.M. Munshi. There are only two modes by which appeals in the criminal matters lie from
the decision of a High Court to the Supreme Court, i.e.,
(i) Without a certificate of High Court;
(ii) With a certificate of the High Court.
(i) Without Certificate: An appeal lies to the Supreme Court without a certificate, if:
(i) The High Court has reversed an order of acquittal of an accused and sentenced
him to death.
(ii) If the High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such a trial convicted the accused person
and sentenced him to death. For instance in Tara Chand vs. State of Maharashtra
the accused charged for murder was acquitted by the Trial Court.
The High Court reversed the order and convicted the accused of murder and sentenced
him to death. The Supreme Court rejecting the argument on behalf of the State said that
the word acquittal meant complete acquittal and that the accused was entitled to a certificate
under Section 134 (i) (a).
(ii) With Certificate: An appeal lies to the Supreme Court from a decision of High Court in
criminal proceedings, if the High Court certifies that the case is a fit one for appeal to the
Supreme Court. Parliament can, by further passing an Act, extend the jurisdiction of the
Supreme Court in criminal matters. But the enhancement of its jurisdiction "ought to be
made, having regard to the enlightened conscience of the modern world and the Indian
people."
(d) Appeals by Special Leave (Article 136): Though Articles 132 to 134 of Indian Constitution
provide for regular appeals to the Supreme Court from decisions of the High Courts, yet some cases
may still crop up, where justice may be at stake. Hence, the interference of the Supreme Court with
decisions not only of the High Courts outside purview of Articles 132 to 134 but also of other tribunals
located within the territory of India may be indispensable. Such residuary power outside the ordinary law
relating to appeals, is conferred upon the Supreme Court by Article 136. Article 136 states, "Notwithstanding
anything in this chapter, the Supreme Court may in its discretion, grant special leave to appeal from any
judgement, decree, determination, sentence or order in any tribunal in the territory of India."
4. Advisory Jurisdiction (Art. 143)
A salient feature of the Supreme Court is its consultative role. In fact, it is a legacy of the past.
A similar role was assigned to the Federal Court according to Section 213 of the Act of 1935. According
to Article 143, (i) the President of India is empowered to refer to the Supreme Court any question of law
or fact of public importance. There is no constitutional compulsion for the Court to give its advice.
5. Court of Record (Art. 129)
Supreme Court shall be a 'court of record' and shall have all the powers of such a court. Being
the highest court of the land, its proceedings, acts and decisions are kept in record for perpetual memory
and for evidence. Court of records also means that it can punish for its own contempt. But this is a
summary power used sparingly and under pressing circumstances.

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 Law (Sample Theory)

Power to Review its Judgment (Art. 137)

Article 137 provides for the Supreme Court having the power to review its own judgments and
orders. However, this is subject to any law passed by the Parliament. In a review petition, an error of
substantial nature only can be reviewed.
The High Court
Article 214 says that every State has a High Court operating within its territorial jurisdiction. But
the Parliament has the power to establish a common High Court for two or more States (Article 231).
Composition of High Courts:
(i) Every High Court shall consists of a Chief Justice and such other judges as the President
of India may from time to time appoint.
(ii) Besides, the President has the power to appoint
(a) Additional Judges for a temporary period not exceeding two years, for the clearance
of areas of work in a High Court;
(b) An acting judge, when a permanent judge of a High Court (other than Chief Justice)
is temporarily absent or unable to perform his duties or is appointed to act
temporarily as Chief Justice.
But neither an additional nor an acting Judge can hold office beyond the age of 62 years (by 15th
Amendment) Act age of retirement raised from 60 to 62.
Appointment and of a Judge of a High Court
Every Judge of a High Court shall be appointed by the President. In making the appointment, the
President shall consult the Chief Justice of India, the Governor of the State (and also the Chief Justice
of that High Court in the matter of appointment of a Judge other than the Chief Justice).
Tenure
A Judge of the High Court shall hold office until the age of 62 years.
Every Judge, permanent, additional or acting, may vacate his office earlier in any of the follow-
ing ways; (i) by resignation in writing addressed to the President; (ii) by being appointed a Judge of the
Supreme Court or being transferred to any other High Court, by the President; (iii) by removal by the
President on an address of both Houses of Parliament (supported by the vote of 2/3 of the members
present) on the ground of proved misbehaviour or incapacity,. The mode of removal of a Judge of the
High Court shall thus be the same as that of a judge of the Supreme Court.
Salary and Allowances of the Judges
It is provided that the judges of the High Court shall draw such salaries and allowances, as the
Parliament may by law fix from time to time. By providing the expenditure salaries and allowances the
judges shall be charged on the consolidated fund of State Article 360 (4) (b).These cannot be reduced
except in financial emergency. Nor can the allowances and rights be varied by Parliament to the
disadvantage of a judge during his/her term of office.
Writ Jurisdiction
Article 226 of the Constitution empowers every High Court, throughout the territories in relation
to its which exercises jurisdiction to issue to any person or authority, including in appropriate cases, any
Government, within those territories, directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any
of the Fundamental Rights and for any other purpose.
The Constitution by Forty-second amendment omitted the provision "for any other purpose", but
the Forty-fourth amendment has restored it. The peculiarity of this jurisdiction is that being conferred by
the Constitution, it cannot be taken away or abridged by anything short of an amendment of the Constitution
itself.

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 Law (Sample Theory)

Although the Supreme Court and the High Courts have concurrent jurisdiction in the enforcement
of Fundamental Rights, the Constitution does not confer to the High Court's the special responsibility of
protecting Fundamental Rights as the Supreme Court is vested with such a power.
Under Article 32 the Supreme Court is made the guarantor and protector, of Fundamental Rights
whereas in the case of High court the power to enforce Fundamental Rights is part of their general
jurisdiction.
The jurisdiction to issue writs under these Articles is larger in the case of High Court in as much
as while the Supreme Court can issue them only where a fundamental right has been infringed, a High
Court can issue them not only in such cases but also where an ordinary legal right has been infringed,
provided a writ is a proper remedy in such cases, according to well-established principles.

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 Law (Sample Theory)

1.2 THE EMERGENCY PROVISIONS

Emergency provisions were made in Constitution to safeguard and protect the security, integrity
and stability of the country and effective functioning of State Governments. Emergency is a unique
feature of Indian Constitution that allows the center to assume wide powers so as to handle special
situations. Emergency Provisions are contained in Part Eighteen of the Constitution of India. The President
of India has the power to impose emergency rule in any or all the Indian states if the security of part or
all of India is threatened by "war or external aggression or armed rebellion". When the Constitution of
India was being drafted, India was passing through a period of stress and strain. Partition of the country,
communal riots and the problem concerning the merger of princely states including Kashmir. Thus, the
Constitution makers thought to equip the Central Government with the necessary authority, so that, in
the hour of emergency, when the security and stability of the country is threatened by internal and
external threats. The Constitution of India contains Articles 352-360 which deals with 'Emergency
Provisions'. The emergency provisions (especially Arts. 352 and 356) have been exclusively amended
by the Constitution (44th Amendment) Act, with a view to introduce a number of safeguards against abuse
of power by the executive in the name of emergency. Amendments have thus been made by the 44th
Amendment to the emergency provision of the Constitution to make repetition of the 1975 situation
extremely difficult, if not possible.
It is a notable feature of Constitution of India where it deals with extraordinary or crisis situations.
The three emergency situations under the Constitution are :

National Emergency
Article 352 deals with the National Emergency. An emergency arising from the threat to the
security of the country is called National Emergency. A national emergency can be proclaimed by the
President of India either (i) by war or external aggression or (ii) by armed rebellion within the country.
Under Article 352(1), if the President is satisfied that a grave emergency exists whereby the security of
India or any part thereof is threatened, whether by war, or external aggression, or armed rebellion, he
may, by proclamation, make a declaration to that effect. Such a proclamation may be made in respect
of the whole of India, or such part of the Indian Territory as may be specified in the proclamation. Article
352(1) thus means that the proclamation need not extend to the whole of India. It may be restricted to
a part of the Indian Territory. A proclamation of emergency under Article 352(1) may be made before the
actual occurrence of war, external aggression or armed rebellion. As Supreme Court explained in the
case of Naga People's Movement of Human Rights v. Union of India, that the expression "internal
disturbance" has a wider connotation than 'armed rebellion' in the sense that "armed rebellion" is likely
to pose a threat to the security of the country, or a part thereof, while "internal disturbance", though
serious in nature, would not pose a threat to the security of the country, or a part thereof.
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 Law (Sample Theory)

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion
has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such
thing happening. In the case of Minerva Mills v. Union of India held that there is no bar to judicial
review of the validity of the proclamation of emergency issued by the president under 352(1). A proclamation
issued under Article 352(1) may be varied or revoked by a subsequent proclamation (Article 352(2)).
44th Amendment : According to the 44th Amendment of the Constitution, the President can
declare such an emergency only if the Cabinet recommends in writing to do so. The 44th Amendment
has introduced a clause i.e. Article 352(3), to the effect that the President shall not issue a proclamation
of emergency (under Article 352(1)), or a proclamation varying the same, unless the decision of the
Union Cabinet i.e. the Council consisting of the Prime Minister and other Ministers of Cabinet rank
appointed under Article 75 that such a proclamation may be issued has been communicated to him in
writing. This means that the decision to issue such a proclamation has to be arrived at collectively by
the Cabinet and not by the Prime Minister alone without consulting the Cabinet. It so happened in 1975
that the President proclaimed emergency on the advice of Prime Minister alone and the Council of
Ministers was later presented with a fait accompli. It is to avoid any such situation in future that Article
352(3) has been introduced in the Constitution.
Article 352(4) : There was a reduction of approval of proclamation by the Parliament by the 44th
amendment. A proclamation will automatically cease after one month if not approved by Parliament.
Earlier the period allowed for parliamentary approval of the proclamation was two months. Proviso to
Article 352(4) – If at the time of issuing proclamation, Lok Sabha is dissolved without approving the
proclamation, and Rajya Sabha approves it, then the proclamation ceases to operate 30 days after Lok
Sabha sits again after fresh elections, unless in the meantime the new Lok Sabha passes a resolution
approving the proclamation.
Article 352(6) : A resolution approving the proclamation of emergency has to be passed by each
house by a majority of the total membership of each house and not less than 2/3rd of its majority of the
members present and voting in each house.
Article 352(8) : There was another amendment i.e. where a notice in writing, signed by not less
than 1/10th of the total members of the Lok Sabha has been given, of their intention to move a resolution
disapproving the proclamation of emergency, to the Speaker if the house is in session, or to the president,
and if the house is not in session then a special sitting of the house is to be held within 14 days from
the date on which such notice is received by a speaker or president.
National Emergency has been declared in our country three times so far.
1. For the first time, emergency was declared on 26 October 1962 after China attacked our
borders in the North East. This National Emergency lasted till 10 January 1968, long after
the hostilities ceased.
2. For the second time, it was declared on 3 December 1971 in the wake of the second India
Pakistan War and was lifted on 21 March 1977.
3. While the second emergency, on the basis of external aggression, was in operation, third
National Emergency (called internal emergency) was imposed on 25 June 1975. This
emergency was declared on the ground of 'internal disturbances'. Internal disturbances
justified imposition of the emergency despite the fact that the government was already
armed with the powers provided during the second National Emergency of 1971 which
was still in operation.
Effects of Proclamation of Emergency
1. Extension of Centre's executive power (Art. 353)
2. Parliament empowered to legislate on State subjects (Art 353 (b)]
3. Centre empowered to alter distribution of revenue between the Union and the State (Art. 354)

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 Law (Sample Theory)

4. Extension of life of lok sabha by a year each time upto a period not exceeding beyond six
months after proclamation ceases to operate. (Art 83(2))
5. Suspension of fundamental rights guaranteed by Art 19 (Art 358)
6. Suspension of right of enforcement of fundamental rights (Art 359)
State Emergency
Article 356 and Article 357 provide for meeting a situation arising from the failure of the Constitutional
machinery in a State. It is the duty of the Union Government to ensure that governance of a State is
carried on in accordance with the provisions of the Constitution. Under Article 356, the President may
issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the
Governor of the State, or otherwise, that a situation has arisen under which the Government of the State
cannot be carried on smoothly. In such a situation, proclamation of emergency by the President is called
'proclamation on account of the failure (or breakdown) of constitutional machinery.' In popular language
it is called the President's Rule.
Like National Emergency, such a proclamation must also be placed before both the Houses of
Parliament for approval. In this case approval must be given within two months; otherwise the proclamation
ceases to operate. If approved by the Parliament, the proclamation remains valid for six months at a
time. It can be extended for another six months but not beyond one year. (Proviso to Article 356(4)).
However, emergency in a State can be extended beyond one year if (a) a National Emergency
is already in operation; or if (b) the Election Commission certifies that the election to the State Assembly
cannot be held. The declaration of emergency due to the breakdown of Constitutional machinery in a
State has the following effects :
(i) The President can assume to himself all or any of the functions of the State Government
or he may vest all or any of those functions with the Governor or any other executive
authority.
(ii) The President may dissolve the State Legislative Assembly or put it under suspension. He
may authorise the Parliament to make laws on behalf of the State Legislature.
(iii) The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation.
Case Laws
State of Rajasthan v. India
A constitutional controversy of great significance in Article 356 was raised in this case. When the
general election for Lok Sabha were held in the country in 1977, after the lifting of the emergency of 1975,
the Congress Party was badly routed in several states by the Janata Party which won a large number
of seats in the Lok Sabha and thus, formed the government at the Centre. In these states, congress
ministries were functioning at the time and they still had some more time to run out for completion of
the full term. There have been many cases of misuse of 'constitutional breakdown'. For example, in 1977
when Janata Party came into power at the Centre, the Congress Party was almost wiped out in North
Indian States. On this excuse, Desai Government at the Centre dismissed nine State governments
where Congress was still in power. This action of Morarji Desai's Janata Government was strongly
criticized by the Congress and others. The suit was designed to foretell the invocation of Article 356 in
the several States. The Supreme Court however, dismissed the suit unanimously. The board position
adopted by the Court was that it could not interfere with the Centre's exercise of power under Article 356
merely on the ground that it embraced 'political and executive policy and expediency unless some
constitutional provision was being infringed."
S.R. Bommai v. India
The Supreme Court gave a landmark decision in this case. The facts of the case are- in 1989,
the Janata Dal Ministry headed by Shri SR Bommai was in office in Karnataka. A number of members
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 Law (Sample Theory)

defected from the party and there a question mark on the majority support in the house for Bommai's
ministry. The Chief Minister proposed to the governor that the Assembly Session be called to test the
strength of the ministry on the floor of the house. But the governor ignored this suggestion. He also did
not explore the possibility of an alternative government but reported to President that as Shri Bommai
had lost the majority support in the house and as no other party was in the position to form the
government, action be taken Article 356(1). Accordingly, the president issued the proclamation in April
1989. Bommai challenged the validity of the proclamation before the Karnataka high court through writ
petition on various grounds. The high court ruled that the proclamation issued under article 356(1) is not
wholly outside the pole of judicial scrutiny. The Satisfaction of the president article 356(1) which is a
condition present for issue of the proclamation ought to be real and genuine satisfaction based on
relevant facts and circumstances. Bommai appealed to the Supreme court against the high court decision.
The Supreme Court was also called upon to decide the validity of similar proclamation under 356(1) in
the states of Meghalaya and Nagaland and thus declared it unconstitutional. The Supreme Court held in
the Bommai case that the Assembly may not be dissolved till the Proclamation is approved by the
Parliament. On a few occasions such as when Gujral Government recommended use of Article 356 in
Uttar Pradesh, the President returned the recommendation for reconsideration. The Union Government
took the hint and dropped the proposal.
Financial Emergency
The Financial Emergency provided under Article 360. It provides that if the President is satisfied
that the financial stability or credit of India or any of its part is in danger, he may declare a state of
Financial Emergency. Like the other two types of emergencies, it has also to be approved by the
Parliament. It must be approved by both Houses of Parliament within two months. Financial Emergency
can operate as long as the situation demands and may be revoked by a subsequent proclamation. So
far, fortunately, financial emergency has never been proclaimed the proclamation of Financial Emergency
may have the following consequences :
(a) The Union Government may give direction to any of the States regarding financial matters.
(b) The President may ask the States to reduce the salaries and allowances of all or any
class of persons in government service.
(c) The President may ask the States to reserve all the money bills for the consideration of
the Parliament after they have been passed by the State Legislature.
(d) The President may also give directions for the reduction of salaries and allowances of the
Central Government employees including the Judges of the Supreme Court and the High
Courts.

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 Law (Sample Theory)

1.3 TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS IN RESPECT OF

CERTAIN STATES

Article 370 and 372 deals with temporary, transitional and special provision in respect of certain
states. Art 370 is very important which deals with State of Jammu & Kashmir. The provisions are as
given hereunder:
What is article 370?
Indian constitution deals with the special status given to the state of J&K. J&K citizen have dual
citizenship. Jammu and Kashmir national flag is different. Jammu and Kashmir legislative assembly term
is 6 years whereas its 5 years for the states of India. The order of state of India are not valid in Jammu
and Kashmir. Parliament of India may makes laws in extremely limited areas in terms of Jammu and
Kashmir. In Jammu and Kashmir if a women's marries a person of any other state of India, citizenship
to the female ends. If a women marries a man in other Indian states she loses her citizenship whereas
if any women marry a Pakistani she will be entitle to have a citizenship of Jammu and Kashmir. Outsider
cannot own a land in Jammu and Kashmir because of section 370 RTI does not apply on Jammu and
Kashmir, RTE is not implemented, CBI does not apply, Indian laws are not applicable. Shariah law is
applicable to women in Kashmir.
Important features of Art 370
As per Indian constitution Article 370 provides temporary provision to the state of Jammu and
Kashmir granting it a special status and a constitutional aspects called autonomy. Some of the important
features of Article 370 in relation with the state of Jammu and Kashmir are explain in following points.
1. The Article says that the provision of Article 238, which was omitted from constitution in
1956 during the seventh constitution amendment when Indian state were reorganized,
shall not apply to the state of J&K. This is to note that Article 238 deals with 9 part b state
of free India which were the princely states of British India.
2. Article 370 was drafted in amendment of constitution in part XXI under temporary and
transitional provisions.
3. As per original draft of Article 370, the government of state means the person with organize
by the president as the Maharaja of J&K for time being in office. This was change in 1952
to government of state means the person recognize by the president upon recommendation
of legislative assembly as Sardar-E-Riyasat (governor) for the timing in office.
4. Except for defence, foreign affairs and communication, all others laws passed by Indian
Parliament need to be passed by the state government before they are made applicable
This was specified in the instrument of accession signed by Maharaja Hari Singh When
he agreed to join the union of India in 1947, instead of going with Pakistan
5. As a result of this, the citizen of J&k are governed by state specific laws which come
under the constitution of J&k, instead of those for the rest of India
Procedure for Amendment of State Constitution
The provision of State Constitution (except those relating to the relationship of the state with the
Union) may be amended
Clause (1) of this Article provides that notwithstanding anything in the Constitution:
(a) the provisions of Art 238 shall not apply in relation to the State of Jammu & Kashmir
1. Special provision with respect to the State of Maharashtra and Gujarat – Sec 371 : It
contains responsibility of Governor for establishment of separate development boards.
2. Special provision with respect to the State of Nagaland – Sec 371A :
3. Special provision with respect to the State of Assam – Sec 371B
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 Law (Sample Theory)

4. Special provision with respect to the State of Manipur – Sec 371C

5. Special provision with respect to the State of Andhra Pradesh – Sec 371D and Sec 371E
(It was inserted by the Constitution 32nd Amendment Act, 1973.)
6. Special provision with respect to the State of Sikkim – Sec 371F (It was inserted by the
Constitution 36th Amendment, 1975)
7. Special provision with respect to the State of Mizoram – Sec 371G
8. Special provision with respect to the State of Arunachal Pradesh – Sec 371H
9. Special provision with respect to the State of Goa – Sec 371I
10. Special provision with respect to the State of Nagaland – Sec 371A

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 Law (Sample Theory)

1.4 ELECTION COMMISSION OF INDIA

One of the most important features of the democratic polity is elections at regular intervals.
Elections constitute the signpost of the democracy; these are medium through which the attitudes,
values and beliefs of the people towards their political environment are reflected. Elections are the central
democratic procedure for selecting and controlling leaders. Elections grant people a government and the
government has constitutional right to govern those who elect it. Elections symbolize the sovereignty of
the people and provide legitimacy to the authority of the government. Thus, free & fair elections are
indispensable for the success of the democracy.
The growth of democracy is possible only when peoples are entitled to participate in the democratic
process of the country. According to Art. 326 elections in India are conducted on the basis of the "Adult
Suffrage", which is most important pillar of the democracy.
In order to ensure free & fair elections the Constitution establishes the Election Commission. In
1950, the Election Commission has established in India. This is a body autonomous in character and
insulated from political pressures and executive influence. Care has been taken to ensure that the
Election Commission work as an independent body free from external pressures from the party in power
or executive of the day. It is duty of the Election Commission to carry free & fair elections to the various
legislative bodies in the country and guarantee the growth of democracy. There are mixed populated
states. There are native people as well as others who are racially, linguistically and culturally different but
to supervise, organize and conduct election the Commission is setup for All – India Level.
Election Laws in India are based on the basic values of constitutional democracy. In order to
protect these values from unnecessary legislative & executive interference the framers of the Constitution
incorporated it as constitutional provisions. So when the question regarding amendment of election laws
and its validity challenged before the court of law it may necessary to examine that, whether amendment
is against basic values of democracy of the Constitution.
The Election Commission has constitutional status.
Superintendence, direction and control of elections to be vested in an Election
Commission (Art 324)
1. The superintendence, direction and control of the preparation of the electoral rolls for, and
the conduct of, all elections to Parliament and to the Legislature of every State and of
elections to the offices of President and Vice President held under this Constitution shall
be vested in a Commission (referred to in this Constitution as the Election Commission).
2. The Election Commission shall consist of the Chief Election Commissioner and such
number of other Election Commissioners, if any, as the President may from time to time
fix and the appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in that behalf by Parliament,
be made by the President.
3. When any other Election Commissioner is so appointed the Chief Election Commissioner
shall act as the Chairman of the Election Commission.
4. Before each general election to the House of the People and to the Legislative Assembly
of each State, and before the first general election and thereafter before each biennial
election to the Legislative Council of each State having such Council, the President may
also appoint after consultation with the Election Commission such Regional Commissioners
as he may consider necessary to assist the Election Commission in the performance of
the functions conferred on the Commission by clause (1).
5. Subject to the provisions of any law made by Parliament, the conditions of service and
tenure of office of the Election Commissioners and the Regional Commissioners shall be

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 Law (Sample Theory)

such as the President may by rule determine; Provided that the Chief Election Commissioner
shall not be removed from his office except in like manner and on the like grounds as a
Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment: Provided
further that any other Election Commissioner or a Regional Commissioner shall not be
removed from office except on the recommendation of the Chief Election Commissioner.
6. The President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner
such staff as may be necessary for the discharge of the functions conferred on the
Election Commission by clause (1).
Functions
The Election Commission performs following functions :
(a) The superintendence, direction & control of elections.
(b) To conduct elections of various bodies.
(c) To advice the President or Governor of a State for disqualification of any member.
(d) To pass any order in respect of the conduct of the elections when there is no law or rule
made under the law.
Role of Election Commission
1. Guardian of Free & Fair Elections.
2. Model Code of Conduct
3. Registration of Political Parties
4. Use of Scientific and Technological Advancements.
5. Multi -Member Election Commission
6. Election Commission – A Tribunal for Adjudication
7. Checking Criminalization of Politics.
8. Right to Know About Candidates.
9. Role of Advisor.
10. Prohibition on Publication

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 Law (Sample Questions)

Sample Questions With Solutions

1. In which case the Supreme Court of India has held that free and fair elections is a basic structure
of the Constitution :
(A) Raj Narain v. Smt. Indira Nehru Gandhi
(B) Minevra Mills Ltd. v. Union of India
(C) Golak Nath v. State of Punjab
(D) All of the above

2. The Election Commission is responsible for the conduct of election to

(A) Parliament
(B) State Legislature
(C) Offices of President and Vice President
(D) All of these

3. The Chief Election Commissioner is

(A) Elected by Parliament (B) Appointed by Home Minister
(C) Appointed by Prime Minister (D) Appointed by the President

4. The State of Jammu & Kashmir was accorded special status under
(A) Article 356 (B) Article 370
(C) Article 356 and 370 (D) None of these

5. The special status of Jammu & Kashmir implies the State has
(A) a separate defence force (B) a separate Constitution
(C) a separate Judiciary (D) all of above

6. Consider the nature of Administrative Law correctly :

I. Administrative law is considered a branch of public law.
II. Administrative law is the body of law which governs the activities of administrative agencies
of government.
III. Administrative Law is a branch of law governing the creation and operation of administrative
agencies.
IV. Administrative law governs Public authorities includes judiciary and legislature.
Codes :
(A) Only I (B) I and II
(C) I, II and III (D) I, II, III and IV

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 Law (Sample Questions)

7. Administrative Law is that portion of a nations legal system which determines the legal status
and liabilities of all state officials and defines the rights and liabilities of private individuals in their
dealing with public officials. Who stated the above sentence :
(A) Dicey (B) Ivoe Jennings
(C) Prof. Wade (D) Garner

8. The distinction between administrative and quasi judicial acts have become blurred after the
judgment given by the Supreme Court in which one of the following cases :
(A) Union of India v. Tulsi Ram Patel
(B) Mohinder Singh Gill v. Chief Election Commissioner
(C) S.L Kapoor v. Jagmohan
(D) A.K Karaipak v. Union of India

9. Ridge v. Baldwins Case deals with :

(A) Corporation (B) Natural Justice
(C) State Liability (D) Delegated Legislation

10. Who called Natural Justice as Universal Justice :

(A) Prof. Wade (B) Ivor Jenning
(C) Lord Cranworthy (D) Lord Widgery

ANSWER KEY
1 2 3 4 5 6 7 8 9 10
A D D B B C A A B C

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 Law (Sample Questions)

SOLUTIONS

1. (A) The State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333) was a 1975
case heard by the Allahabad High Court that found the then-Prime Minister of India Indira
Gandhi guilty of electoral malpractices. Ruling on the case that had been filed by the
defeated opposition candidate, Raj Narain, Justice Jagmohanlal Sinha invalidated Gandhi's
win and barred her from holding elected office for six years.
2. (D) All of these
3. (D) Appointed by the President
4. (B) Article 370
5. (B) a separate Constitution
6. (C) Because Administrative law governs Public authorities other than judiciary and legislature.
7. (A) According to Dicey, Administrative Law is that portion of a nations legal system which
determines the legal status and liabilities of all state officials and defines the rights and
liabilities of private individuals in their dealing with public officials. It also specifies the
procedures by which those rights and liabilities are enforced.
8. (A) Union of India v. Tulsi Ram Patel
9. (B) That failure to give a fair hearing renders the decision not merely voidable, but void. (Rule
of audi alterum partum).
10. (C) Natural justice has been variously defined by different Judges. A few instances will suffice.
In Drew v. Drew and Lebura 1855(2) Macg. 1.8, Lord Cranworthy defined it as universal
justice.

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