AL-AMEEN COLLEGE OF LAW

HOSUR ROAD, BANGALORE-560027

MODEL ANSWER PAPER

DECEMBER-2015

I SEM 3YRS. LL.B.

SUBJECT- CONSTITUTIONAL LAW

PREPARED BY:
SAHANA FLORENCE. [ASST. PROF]
AL-AMEEN COLLEGE OF LAW
BANGALORE.

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 AL-AMEEN COLLEGE OF LAW
BANGALORE
MODEL ANSWER PAPER DECEMBER-2015
I SEM 3YRS. LL.B.
SUBJECT- CONSTITUTIONAL LAW
Duration: 3. Hours Max Marks: 100

Instruction to Candidates:

1. Answer Q.No.9 and any five of the remaining questions.

2. Q. No.9 carries 20 marks and the remaining question carry 16 marks each
3. Answers should be written either in English or Kannada completely.

Marks: 04 X 16=64
1. Discuss the Freedom of Speech and Expression with the help of the decided cases.

SYNOPSIS
1. Introduction
2. Right to Freedom
3. Significance of Freedom of Speech and Expression
4. Conclusion.

Introduction
Personal liberty is the most important of all Fundamental Rights. Articles 19 to 22 deal with
different aspects of this basic right. Taken together these four Articles from a Chapter on
personal liberties which provides the backbone of the Chapter on Fundamental Rights.

Right to Freedom [Article-19]

Among all the six fundamental rights Article-19 is the most important one. This Article
contains 6 freedoms. Protection of certain rights regarding freedom of speech, etc. All citizens
shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g)to practise any profession, or to carry on any occupation, trade or business.

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 These rights are conferred as the natural rights inherent in the status of a citizen. It
may be noted that the six freedoms under Article 19 given against only to citizens. They
are not available to foreigners or aliens, not being a natural persons, corporations or
companies also are not entitled to these six freedoms.
Freedom of Speech and Expression [Article- 19(1) (A)]
Freedom of speech and expression is indispensable in a democracy. Article 19(1) (a)
says that all citizens shall have the rights to freedom of speech and expression, but this right is
subjected to limitations imposed under Article-19(2), which empowers the state to put
reasonable restrictions on following grounds. Eg: security of a State, Friendly relations with
foreign States, Public Order, Decency and Morality, Contempt of Court, Defamation offences
against integrity and Sovereignty of India.

Broad Special Purposes to Serve:

1. It helps an individual to attain self- fulfillment;
2. It assists in the discovery of truth
3. It strengthen the capacity of an individual in participating in the decision making
4. It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
All members of society should be able to form their own beliefs and communicate them
freely to others.

Freedom of Press
The fundamental right of the freedom of the press implicit in the right the freedom of
speech and expression is essential for political liberty and proper functioning of democracy.
Article 19(1) (a) of the constitution does not expressly mentioned the liberty of press but it has
been held that liberty of press is included in freedom of speech.
Indian Express Newspapers v/s Union of India (Freedom of Press Case):
News papers are part and parcel of the freedom of speech and expression. They educate
the people and bring political awareness. Any restrictions imposed on speech and press, under
the finance Act, 1981 and certain notifications issued under the Customs Tariff Act, 1975, the
Central Government imposed 40% plus Rs. 1000 per month as customs duty on news print. The
shareholders, employees, trustees of the petitioner company filed writ challenging the validity of
imposition of customs duty on newsprint. Their main contention was that 60% of the expenses of
a newspaper could cover the newsprint. If the customs duty was imposed, the management could
not run the newspaper, and the result was to violation of their fundamental right of freedom of
speech and press. The Supreme Court admitted the writ and the arguments of the petitioner and
set aside the notification and quashed the imposition of customs duty on newsprint.

Bennet Coleman and Company v/s Union of Indi [Freedom of Press News Print Case]:

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 Bennet Coleman and Co., was the company managing a newspaper. The Central
Government passed an order known as Newsprint Control order 1972 which fixes the
maximum number of pages to 10 which affected the distribution of newsprint to the petitioner
company. Due to that order, the company was to put great loss, consequently it had to close its
magazine. The company challenged the said order before the Supreme Court under
Article19(1)(a). the writ petitions were filed by several readers, newspapers, editors and
shareholders of several other newspaper. The Supreme Court held that the fundamental rights of
the readers, shareholders, newspaper editions were badly affected by the said order. If their
fundamental rights has not been recognised and if the unreasonable restrictions are not removed,
the freedom of the press would be destroyed in the country. Therefore the Supreme Court
admitted the petitions of the newspaper companies, readers, shareholders and editors and
quashed clauses against freedom of press of the newsprint control order 1972.

Freedom of Press includes Freedom of Silence:

In the National Anthem Case the Supreme Court held that no person shall be compelled
to sing National Anthem, if he has genuine conscientious objections based on his religious faith.
In Bijoe Immanuel Vs. State of Kerala(National Anthem Case):
The Director of Public Instructions, Kerala issued a circular, according to which the
students of all the schools should sing national anthem at their school. 3 children belonging to
Jehovahs Witness stood in the line, while national anthem was sung at their school but they did
not sing. The Head Mistress of the School asked them to give in writing that they will respect the
national anthem and instructed them until such assurance was not given, she will not allow them
to the classes. The children refused to do so. As a result, the School management expelled those
3 children contending that they did not sing national anthem.
A writ petition was filed by Bijoe Emmanuel on behalf of the 3 children, before the
Kerala High Court questioning the validity of school managements expulsion order and also the
circular of the Director of Public Instructor. The petitioner contended that 3 children stood in the
line when national anthem was sung as respect and they did not sing it because their religious
belief which did not permit them to join in any rituals except if be in their prayer to their God.
The Kerala High Court dismissed the writ petition and upheld the expulsion. It held that it
is every citizens fundamental duty to respect the national integrity and to sing the national
anthem. The appellant appealed to the Supreme Court the Supreme Court reversed the judgement
of the Kerala High Court. It gave judgement in favour of the appellant. It held that they did not
commit any offence under the National Honour Act, 1971, because they stood up respectfully
when the national anthem was being sung.

Grounds for Restrictions under Article 19(2):

Security of the State: Security of state refers to only serious and aggravated form of
public disorders. For e.g., expression of views or making of speeches which tend to
encourage the people to commit violent crimes like murder would be a reasonable ground

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 for the imposition of restrictions on the right to freedom of speech and expression on the
ground of security of the state: avoidance of embarrassment likely to be caused to India
through persistent and malicious propaganda against foreign countries

Friendly relation with Foreign States:

Public Order: Public order is something more than ordinary maintenance of law and
order. It is similar with public peace, safety and tranquility.

Decency of Morality: It should be in conformity with the current standards of behaviour
is one of the valid ground for imposing restrictions on the freedom of speech.

Contempt of Court: Prevention of making of contemptuous statements against the court,
to preserve the dignity and authority of the courts.

Defamation: A statement which injures a mans reputation amounts to defamation.
Defamation consists in exposing a man to hatred ridicule and contempt.

Incitement of an offence [motivating to commit offences]: This ground was also added by
the constitution (First amendment) Act, 1952. Obviously, freedom of sppech and
expression cannot confer a licence to incite people to commit offence.

Sovereignty and Integrity of India: This ground was added to clause (2) of Article4 19 by
the Constitution (Sixteenth Amendment) Act, 1963. Under this clause, freedom of speech
and expression can be restricted so as not to permit to any one to challenge the integrity
or sovereignty of India or to preach cession of any part of India from the Union.

2. Explain the Safeguards available against the arbitrary arrest and detention under
Article-22 of the Indian Constitution.
Synopsis:

1. introduction
2. Article 22 of the Constitution
3. Safeguards Available against the Arbitrary Arrest and Detention
4. Conclusion

Introduction

Article-22 provides safeguards against arrest and preventive detention. Article 22 prescribes
the minimum procedural requirements that must be included in any law enacted by the
Legislature in accordance with which a person may be deprived of his life and personal liberty.

Article 22 deals with two separate matters:

1. Person arrested under ordinary law of crimes and

2. Person detained under the law of preventive detention.

Safeguards Available against the Arbitrary Arrest and Detention;

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Rights Of Arrested Person: Article 22(1) and (2) guarantees four important rights to on
a person who is arrested for any offence under an ordinary law. These fundamental rights
guaranteed to arrested persons both to the citizens as well as non-citizens And not to the
persons arrested and detained under any law providing for preventive detention.
1. The rights to be informed on grounds of arrest: this is necessary to enable the
arrested person to know the grounds of his arrest and to prepare for his defence.
Art-22 is in the nature of directive to the arresting authorities to disclose the
grounds of arrest of a person immediately.art-22(1) provides that no person who
is arrested shall be denied in custody without being informed, as soon as may be,
of the grounds for such arrest nor shall be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
2. The right to consult and be defended by a legal practitioner of his choice: art-
22 (1) gives another important right to the person arrested to consult and to be
defended by a legal practitioner of his choice. This right is informed by a legal
practitioner of his choice. This right is conferred to everyone, whether he is
arrested by the general laws or specific laws.
3. Right to be produced before a Magistrate within 24 hours of his arrest:
According to Art-22(2) that every person who is arrested and detained inc ustody
shall be produced before the nearest magistrate within a period of 24 hours of
such arrest excluding the time necessary for the journey from the place of arrest to
court of the magistrate and such person shall be detained in custody beyond the
said period without the authority of a magistrate. The object of this is not to give
the time to the police to harass the person arrested. This object is also achieved by
section 57 of Cr.P.C.
4. Not to be detained beyond 24 hours without Magistrates authority: Art-22(2)
strictly prohibits the police or any authority to detain the arrested person under his
authority beyond the 24 hours period without the magistrate authority. This would
enable the arrested person to get a speedy trial. This means that if there is failure
to produce the arrested person before the nearest magistrate within 24 hours it
would make the arrest illegal.

Preventive Detention Laws U/A 22: Sometimes the Country is faced with the
certain dangers. To safeguard the interest of the country the Central Government is
entitled to declare certain areas and certain persons to detain them under prevention
of the breach of peace.

Ex: 1. Preventive Detention Act, 1950

2. Terrorist and Disruptive Activities Prevention Act, 1987.

Which imposes certain rights to the person arrested under preventive detention laws, so
that the authorities may not misuse their powers. Article 22 (4) to (7) provides the procedure

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which is to be followed if a person is arrested under the law of Preventive Detention in Indian
law. While the object of the preventive detention is not to punish a man for having done
something but to intercept him before he does it and to prevent him from doing it. Preventive
detention laws are necessary to democratic Constitution and they are not found in any of the
democratic countries of the world. No country in the world has made these laws as integral part
of the Constitution as has been done in India.

Constitutional Safeguards against Preventive Detention Laws: Article 22 (4) to (7)

guarantees the following safeguards to a person arrested under preventive detention law.

1. Review by Advisory Board: the 44th amendment Act, 1978 has substituted a new
clause for clause (4) which reduces the maximum period for which a person may be
detained without obtaining the opinion of the advisory board from 3 months to 2
months. The detention of a person for a longer period than two months can only be
made after obtaining the opinion of the advisory board. The advisory board shall now
be constituted in accordance with the recommendation of the Chief Justice of the
appropriate high court. If the advisory board reports that the detention is not justified,
the detained person must be released.

2. Communication of Grounds of Detention to Detenue: the authority making the

detention must as soon as possible be communicated to the person detained the
grounds of his arrest, that is, the grounds which led to be subjective satisfaction of the
detaining authority and to give the detenue the earliest opportunity of making a
representatives against the order of detention that is, to be furnished with sufficient
particulars to enable him to make a representation.

3. Detenues Right of Representation: the other right given to the detenue is that he
should be given the earliest opportunity of making a representation against detention
order. It means that the detenue must be furnished with sufficient particular of ground
of his detention to enable him to make a representation which on being considered
may give him relief.

Conclusion:

4. What is Money Bill? Explain the procedure of passing of Money Bill, Financial Bill and
Ordinary Bill.
SYNOPSIS
1. Introduction
2. Meaning of Money Bill
3. Procedures of passing Money Bill, Financial Bill and Ordinary Bill.
4. Conclusion
Introduction

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 The Parliament has extensive powers and performs a number of functions. The primary
function of a parliament is law making or legislative work. Modern society is so complex that
the laws govern it have necessarily to be complex. While making law Parliament has to look to
the future. As a result of this law making has become a complex or difficult process.

The legislative procedure is initiated in the form of a Bill. A Bill contains the Draft
provisions of the Law being proposed. It originates in the Ministry concerned. It goes over to the
Law Ministry for its legal opinion in respect of the Draft Provisions. Then the cabinet has to
consider it. In the light of consultations with the Law Ministry, discussions and deliberations
over the Provisions in the Bill, deletions, alterations, and amendments may be effected. Finally,
the Law Ministry, drafts the provisions and the Bill will be introduced in either House. In respect
of ordinary legislation, the two Houses enjoy coordinate jurisdiction.

However, a Financial Bill or a Money Bill can be introduced only in the Lok Sabha. As
pointed out earlier basically the Parliament is a law making body. Any proposed law is
introduced in the Parliament as a bill. After being passed by the Parliament and getting the
Presidents assent it becomes a law.

Legislative Process of Parliament:

. There are three kinds of bills, which come up before the Parliament:-

(i) Ordinary bill

(ii) Money bill. and
(iii) Financial Bill

Here we shall discuss the legislative procedure in each of these kinds of bills.

Ordinary Bills

An Ordinary bill, i.e., Bill other than Money Bill and Financial Bill may originate in
either house of the Parliament. The Bill must be passed by the both the Houses of Parliament
then only it can be sent for Presidents assent. It becomes a law when it is assented by the
President. Every member of the Parliament has a right to introduce an ordinary bill and from this
point of view, we have two types of bills government bills and private members bills. A
Minister moves a government bill and any bill not moved by a Minister is a Private Members
Bill, which means that the bill has been moved by a member of parliament but not a minister in
the Government. The Government bills consume most of the time of the Parliament. The Bills
pass through several stages. : -
(A) First Reading: With the introduction of the bill, the First Reading of the bill starts. This stage
is simple. The Minister wanting to introduce a bill, informs the presiding officer. He/she puts the
question of introduction to the House. When approved, normally by voice vote, the Minister is
called upon to introduce the bill. At this stage no discussion takes place.

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(B) Second Reading: -This stage is the most vital stage. After general discussion the House has
four options: - (i) it may straightaway take the bill into detailed (clause by- clause) consideration
or (ii) refer it to a select committee of the House or, (iii) refers it to the Joint Committee of both
the Houses or (iv) circulate it among the people to elicit public opinion. If the bill is referred to a
select committee of the House or the joint select committee of both the Houses, the concerned
committee examines the bill very minutely. Each and every clause is examined. The committee
may also take the opinion of professionals and legal experts. After due deliberations, the
committee submits its report to the House.
(C) Third Reading: - After the completion of the second reading, the Minister may move that the
bill be passed. At this stage normally no discussion takes place. The members may oppose or
support the adoption of the bill, by a simple majority of members present and voting.

Bill in the other House: -After the bill has been passed by one House, it goes to the
other House. Here also the same procedure of three readings is followed. The following
consequences may follow: -
(A) It may pass it; then the bill is sent to the President for his assent.
(B) It may pass the bill with amendments. The bill will be sent back to the first House. In
such a case, the first House will consider the amendments and if it accepts the
amendments then the bill will be sent to President for his assent. In case the first House
refuses to accept the amendments, then it means there is a deadlock.
(C) It may reject it. It means there is a deadlock. In order to remove the deadlock between
the two Houses, the President may call for a joint sitting of the two Houses. Such joint
sittings are very rare in India and till now only three times such meetings have taken
place. They were convened on the occasion of passage of Dowry Prohibition Bill 1959,
Banking Service Commission (Repeal) Bill, 1978, and Prevention of Terrorism Bill,
2002.
(D) Presidents assent to the Bill:- After being passed by both the Houses or the Joint
Sitting of both Houses, the bill is referred to the President for his assent. The President
also has some options in this regard: - (i) He may give his assent and with his assent, the
bill becomes a law. (ii) He may withhold his assent, but may suggest some changes. In
such a case the bill is sent back to the House from where it had originated. But if both the
Houses pass the bill again with or without accepting the recommendations Structure of
Government of the President, the President has no option but to give his assent. (iii) In
1986, the President Giani Zail Singh invented a new option. He neither gave his assent
nor he returned it to the Parliament for reconsideration of the Postal Bill. He sought some
clarifications, which were never provided. The bill thus, lapsed.

Money Bills(Article 110 (1))

Article 110 of the Constitution defines the term Money Bill as a Bill which
contains only provision regarding taxes, borrowings, custody of the Consolidated Fund

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and the Contingency Funds, appropriations, declaring of any expenditure as charged on
the Consolidated Fund, receipt and custody of money in the Consolidated Fund, audit of
the accounts of the union or any other incidental matter.
The money bills are such bills which deal with money matters like imposition of
taxes, governmental expenditure and borrowings etc. In case there is a dispute as to
weather a bill is a money bill or not, the Speakers decision is final. The money bill has to
undergo three readings like an ordinary bill but few considerations are also added here.
Article 109 lays down the procedure of passing Money Bill
1. A Money Bill shall not be introduced
in the Rajya Sabha. It shall be introduced only in the Lok Sabha. A Money Bill can be
introduced in the Lok Sabha only with the recommendation of the President.
2. After a Money Bill has been passed
by the Lok Sabha, it shall be transmitted to the Rajya Sabha for its recommendations.
The Rajya Sabha shall, within a period of 14 days from the receipt of the Bill, return
the Bill to the Lok Sabha with its recommendations. The Lok Sabha may, thereupon,
either accept or reject all or any of the recommendations of the Rajya Sabha.
3. If the Lok Sabha accepts any of the
recommendations of the Rajya Sabha, the Money Bill shall be deemed to have been
passed by both houses of the Parliament with the amendments recommended by the
Rajya Sabha and accepted by the Lok Sabha.
4. If the Lok Sabha does not accept any
of the recommendations of the Rajya Sabha, the Money Bill shall be deemed to have
been passed by both the houses in the form in which it was passed by the Lok Sabha
without any of the amendments recommended by the Rajya Sabha.
5. If a Money Bill passed by the Lok
Sabha and transmitted to the Rajya Sabha for its recommendations is not returned by
the Rajya Sabha within the said period of 14 days, it shall be deemed to have been
passed by both the Houses at the expiration of the said period in the form in which it
was passed by the Lok Sabha.
6. When a Money Bill has been passed
by both the Houses of Parliament, it is presented to the President with a certificate by
the speaker of the Lok Sabha that it is a Money Bill for his assent.
7. When a Money Bill is presented to
the President for his assent, the President may either give his assent or refuse his
assent. But, since the Money Bill has been introduced only on the recommendation of
the President, and the power to vote a Money Bill is exercised by the President only
on the advice of the cabinet, the President will be bound to give his assent to the
Money Bill.
8. After the President gives his assent
to the Money Bill, the Bill becomes an Act.

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The Financial Bill/ The Budget
Generally, a financial Bill may be any Bill which relates to revenue and
expenditure. But in the Constitution, it has a technical meaning. As per the Constitution, a
Financial Bill is one that is Money Bill as well as more than that. In other words, a
Financial Bill is a Bill, which apart from dealing with one or more of the matters
mentioned in Article 110 (1) for a Money Bill, also deals with other matters.

The Budget is an annual financial statement showing expected revenue and

expenditure of public money. It is not a bill. Every year the budget is presented by the
Finance Minister in the Lok Sabha. The budget making is a big exercise. The Finance
Ministry prepares the budget but it involves the entire government. The budget in India is
presented in two parts- Railway Budget and the General Budget.
(i) Presentation of the Budget: - The railway budget is generally presented by the
Railway minister in the third week of February, while the general budget is presented
normally on the last working day of February. The general budget is presented along with
the speech of the Finance Minister. The budget remains a closely guarded secret till its
presentation. After the speech, the Finance Minister introduces the Finance Bill, which
contains the taxation proposals of the government. The House rises thereafter and there is
no discussion on the day of the presentation of the Budget.
Followings are the legislative procedure for passing Financial Bill:
1. Like a Money Bill, a Financial Bill
also can be originate only in the Lok Sabha.
2. Again, like a Money Bill, a
Financial Bill also cannot be introduced without the recommendation of the
President.
3. A Financial Bill can be amended or
rejected by the Rajya Sabha like an Ordinary Bill. If there is a deadlock between
the two Houses in regard to the passing of a Financial Bill, it can be resolved by
the joint session of the two Houses. That means the Rajya Sabha has some control
over Financial Bill and other Bills involving expenditure.
4. A Financial Bill is passed according
to the procedure provided for passing of an Ordinary Bill.
5. As far as the President assent is
concerned, in the case of Money Bill, the President may either give his assent or
refuse his assent. But in the case of a Financial Bill, he may, in addition, refer it
back to the House with a message for reconsideration.
6. After the Financial Bill is passed by
both the Houses, and the President gives his assent, the Financial Bill becomes an
Act.

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 3. Explain briefly the different kinds of Jurisdiction exercised by the Supreme Court
of India.
Synopsis
1. Introduction
2. The Supreme Court as the Guardian of Fundamental Rights
3. Composition of the Court
4. Different Kinds of Jurisdiction of Supreme Court
a. Court of Records
b. Original Jurisdiction
c. Appellate Jurisdiction and
d. Advisory Jurisdiction
5. Conclusion

Introduction
In India, the judiciary has the significant function of enforcing the Fundamental Rights of
people granted to them by the Constitution. Justice Walia has compared the judiciary to
watering tower above all the big structure of the other limbs of the State from which it keeps a
watch like a sentinel on the function of the other limbs of the State as to whether they are
working in accordance with the law and the Constitution, the Constitution being supreme. India
has a unified judicial system with the Supreme Court standing at the apex and the High Courts
below it. The Supreme Court thus enjoys the top most position in the judicial hierarchy of the
country. It is the ultimate Court of appeal in all civil and criminal matters and the final interpreter
of law of the land, and thus helps in maintaining a uniformity of law through out the country.

The Supreme Court as the Guardian of Fundamental Rights

The Constitution has assigned to the Supreme Court a special role the protector and
guarantor of fundamental rights by Art. 32(1). Where, therefore, the infringement of a
fundamental right has been established, the Supreme Court cannot refuse relief under Art. 32 on
the ground.
a) That the aggrieved person may have his remedy from some other Court or under the
ordinary law or
b) That disputed facts have to be investigated or evidence has to be taken before relief may
be given to the petitioner; or
c) That the petitioner has not asked for the proper writ applicable to his case. In such a case
the Supreme Court must grant him the proper writ and, if necessary modify it to suit the
exigencies of the case.
d) Generally only the person effected may move the Court but the Supreme Court has held
that in social or public interest, any person may move the Court.
This is called expansion of the right to be heard it favors public interest litigation. The
Supreme Court can declare any law null and void if it violates the exercise of fundamental rights.

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The Court also protect these rights if they are infringed by the action of the executive. In case of
violation of these rights, the affected person may directly approach the Supreme Court and the
Court may issue the writs in the nature of Habeas corpus, Mandamus, Prohibition, certiorari,
Quo Warrranto.

Composition of the Court

The Supreme Court of India consists of a Chief Justice and, until Parliament may by law
prescribes a large number, not more than seven other Judges. Thus Parliament may increase this
number, by law. Originally, the total number of Judges was Seven but in 1977 this was increased
to 17 excluding Chief Justice. In 1986 this number has been increased to 25 excluding Chief
Justice. In 2009 the number has been increased to 30 excluding Chief Justice. Thus the total
number of Judges in the Supreme Court at present is 31 including the Chief Justice. The
Constitution does not provide for the minimum number of Judges who will constitute a Bench
for hearing cases.

Jurisdiction of the Supreme Court

The Supreme Court in Indian Union has more power than any Supreme Court in any part of the
world.

1. SUPREME COURT- A COURT OF RECORD [ART-129]

Article 129 makes the Supreme Court a Court of record and confers all the powers of such
a court including the power to punish for its contempt. A Court of record is a court whose
records are admitted to be of evidentiary value and they are not to be questioned when they
are produced before the court. Once a court is made a Court of Record, its power to punish
for contempt necessarily follows from that position. The power to punish for contempt of
court has been expressly conferred on the Supreme Court by our Constitution. The Contempt
of Court Act, 1971, defines the power of the Courts for punishing contempt of courts and
regulates their procedures. It also provides for judges to be tried for Contempt of Court.
According to Section 2 of the Act, Contempt of Court includes both Civil and Criminal
contempt.

II Original Jurisdiction (Art-131)

The original jurisdiction of the court extends to the following two types of cases :
i) Dispute relating to the Union and the States The following disputes are covered under
this jurisdiction :
a) Any dispute between the Government of India and one or more States; or
b) Disputes between the Government of India and any State or States on the one side and
one or more States on the other side; or
c) Disputes between two or more States.

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 d) The Supreme Court in its Original Jurisdiction cannot entertain any suits brought by
private individuals against the Government of India.
e) The above jurisdiction shall not extend to a dispute arising out of any treaty, agreement,
or covenant or similar document which, having been executed before the commencement
of the Constitution continues in operation after such commencement.
f) But these disputes may be referred by the President to the Supreme Court for its advisory
opinion.
g) The first suit brought before the Supreme Court was between West Bengal and Union of
India in 1961 to declare the unconstitutionality of the coal bearing Area Act 1957. In this
case the court held that the States under the Constitution are not sovereign and that the
union has authority to acquire compulsorily land belonging to State Governments.
ii) Disputes/cases Involving the Violation of Fundamental Rights :
The cases involving the violation of Fundamental Rights can be initiated either in the High
Courts or the Supreme Court. Art. 32 of the Constitution gives special responsibilities to the
Supreme Court for the protection of Fundamental Rights of the citizens. In case of the violation
of these rights the Supreme Court can issue the writs in the nature of Habeas Corpus,
Mandamus, quo warranto, prohibition and certiorari. Article 32 provides a quick remedy for the
enforcement of the Fundamental rights under this Article a person can directly go to the Supreme
Court. The Supreme Court has thus been constituted the protector and guarantor of the
fundamental rights.

III. Appellant jurisdiction-art-132

Appellate jurisdiction means the right and jurisdiction of the Supreme Court to
entertain appeals against the decisions of the lower courts, e.g., High Courts. The
appellate jurisdiction of the Supreme Court can be divided into four main categories :
Constitutional matters:
Under Article 132 (1) an appeal shall lie to the Supreme Court from any
judgment, decree or final order of a High Court whether in civil, criminal or other
proceedings, if the High Court certifies under Art. 134-A that the case involves a
substantial question of law as to the interpretation of this Constitution. Where such a
certificate is given any party in the case may appeal to the Supreme Court on the ground
that any such question as aforesaid has been wrongly decided. The object of the New
Article 134-A is to avoid delay in granting certificate by the High Court for appeal to the
Supreme Court. Under Article 134-A the High Court can grant a certificate for appeal to
the Supreme Court under Art-132 either on its own motion or on oral application of the
aggrieved party immediately after passing the judgment, decree, final order.
Under Art. 132 (1) three conditions are necessary for the grant of certificate by
the High Court :
i) the order appealed must be against a judgment, decree or final order made the
High Court in civil, criminal or other proceedings,

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 ii) the case must involve a question of law as to the interpretation of this constitution,
and
iii) the question involved in such constitutional interpretation must be a question of
law.

Civil matters,
Art 133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or
final order in a civil proceeding of a High Court only if the High Court certifies (under Art.
134-A).
a) That the case involve a substantial question of law of general importance; and
b) That in the opinion of the High Court the said question needs to be decided by the
Supreme Court.
Prior to the 30th Amendment Act, 1972, under Article 133 an appeal could go to the Supreme
Court in civil cases from any judgment, decree or final order of the High Court if the High
Court certified that the amount or value of the subject-matter of the dispute both in the first
instance and also on an appeal was not less than Rs. 20,000; or That the judgment, decree or
final order involves directly or indirectly same claim or case was a fit one for appeal to the
Supreme Court. The 30th Amendment Act, 1972 has removed the condition of monetary
value that an appeal could go to the Supreme Court only when the amount or value in dispute
was not less than Rs.20,000. Under the amended Article 133 now an appeal could go to the
Supreme Court only if the High Court certifies under Article 134-A that the case involved
that substantial question of law of general importance.

Criminal matters
An appeal in some criminal cases can be made to the Supreme Court against the
judgment of the High Court if the High Court
a) has reversed the order of acquittal of an accused person and sentenced him to death;
or
b) has withdrawn any case from any subordinate court for trial and sentenced the
accused to death; or
c) Certifies that the case is fit for appeal in the Supreme Court.
According to Article 134 an appeal lies to the Supreme Court from any judgment,
final order or sentence in a criminal proceeding of a High Court in the following two ways:-
(1) Without a Certificate of High Court Art-134(a),(b):- An appeal lies to the Supreme
Court without the certificate of the High Court if the High Court:-
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him
to death;

15
 (b) has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convinced the accused person and sentenced him to death.
But if the High Court has reversed the order of conviction and has ordered the
acquittal of an accused, no appeal would lie to the Supreme Court.
(2) With a Certificate- Article-134(c):- Under clause (c) an appeal lies to the Supreme
Court if the High Court certifies under Article-134-A that it is a fit case for appeal to the
Supreme Court. Certificate for appeal to supreme court-article 134-a.
Every High Court, passing or making a judgment, decree, final order of sentence,
referred to in clause (1) of Article 132 or 134:-
(a) may, if it deems fit so to do, own motion, and
(b) Shall if an oral application is made, by or on behalf of the party aggrieved,
immediately after the passing or making of such judgment, decree final order or
sentence, determine as soon as may be after such passing or making, the question
whether certificate of the nature referred to in clause (1) of Article 132, 133 or sub-
clause (c) of clause (1) of Article 134, may be given in respect of that case.
Special leave to appeal.
Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India,
and has been provided as a "residual power" in the hands of Supreme Court of India to be
exercised only in cases when any substantial question of law is involved, or gross
injustice has been done. The Constitution of India under Article 136 vests the Supreme
Court of India with a special power to grant special leave, to appeal against any judgment
or order or decree in any matter or cause, passed or made by any Court/tribunal in the
territory of India This is special power, bestowed upon the Supreme Court of India which
is the Apex Court of the country, to grant leave to appeal against any judgment in case
any substantial constitutional question of law is involved, or gross injustice has been
done.

Special Leave petition or SLP can be presented under following circumstance:
1. SLP can be filed against any judgment or decree or order of any High Court /tribunal
in the territory of India. Or,
2. SLP can be filed in case the High court refuses to grant the certificate of fitness for
appeal to Supreme Court of India..

IV. Advisory Jurisdiction

According to Art. 143, the Supreme Court has advisory jurisdiction. On the matters
referred to the court for legal advice, by the President. If at any time, it appears to the
President that a question of law has arisen, which is of such public importance that it is
necessary to obtain the advice of the Supreme Court, he may refer such question to the
Court for consideration. The Supreme Court, may after due consideration; report to the
President its opinion on that matter. The Supreme Court is not bound to give its legal
opinion on all matters referred to it by the President also the President is not bound to

16
 abide by such legal opinion. In Kerala Education Bill case the court had expressed the
view that the advisory opinion of the Supreme Court under Art. 143, though entitled to
great respect, is not binding on Courts, because it is not a law within the meaning of Art.
141. In Re Berubari case in 1960,opinion of the Supreme Court was sought to find out the
manner in which the territory of India could be transferred to Pakistan.

4. How Independence of Judiciary is maintained under the Indian Constitution?

Discuss.
SYNOPSIS
1. Introduction
2. Independence of Judiciary
3. Conclusion

Introduction
Only an impartial and independent judiciary can protect the rights of the individual and
provide equal justice without fear or favour. It is therefore, very necessary that the Supreme
Court should be allowed to perform its functions in an atmosphere of independence and be free
from all kinds of political pressures.

Independence of Judiciary:
The constitution has made several provisions to ensure independence of judiciary.
(1) Security of tenure:- The Judges of the Supreme Court have security of tenure. They
cannot be removed from office except by an order of the President and that also only on
the ground of proved misbehaviour or incapacity, supported by a resolution adopted by a
majority of total membership of each House and also by a majority of not less than 2/3 of
the members of the House present and voting. Parliament may, however, regulate the
procedure for presentation of the address and for investigation and proof of the
misbehaviour or incapacity of a Judge. But Parliament cannot misuse this power, because
the special procedure for their removal must be followed.
(2) Salary of Judge fixed, not subject to vote of Legislature:- The salaries and allowances
of the Judge of the Supreme Court are fixed by the Constitution and charged on the
Consolidated fund of India. They are not subject to vote of Legislature. During the term
of their office, their salaries and allowances cannot be altered to their disadvantage except
in grave financial emergency.
(3) Parliament can extend, but cannot curtail the jurisdiction and power of the
Supreme Court:- In respect of its jurisdiction, Parliament may change pecuniary limit
for appeals to the Supreme Court in civil cases, enhance the appellate jurisdiction of the
Supreme Court, confer supplementary power to enable it to work more effectively, confer
power to issue directions, order or writs including all the prerogative writs for any
purpose other than those mentioned in Article 32. The point to be noted in all these

17
 provisions is that the parliament can exceed, but cannot curtail the jurisdiction and power
of the Supreme Court.
(4) No discussion in Legislature on the Conduct of the Judges:- Neither in Parliament nor
in a State Legislature a discussion can take place with respect to the conduct of a Judge
of the Supreme Court in discharge of his duties(Art-121).
(5) Power to Punish for its Contempt:- The Supreme Court and the High Court have the
power to punish any person for its contempt. This power is very essential for maintaining
the impartiality and independence of the Judiciary.
(6) Separation of Judiciary from Executive:- Art.50 directs the State to take steps to
separate the Judiciary from the executive in the public services of the State. It emphasises
the need of securing the judiciary from the interference by the executive.
(7) Judges of the Supreme Court are Appointed by the Executive with the Consultation
of Legal Experts:- The Constitution does not leave the appointment of Judges of the
Supreme Court to the unguided discretion of the Executive. The executive is required to
consult Judges of the Supreme Court and High Court in the appointment of the Judges of
the Supreme Court The independence of the Supreme Court is emphasised by Art, 229
which provides that appointment of officers and servants shall be made by the Chief
Justice or such other Judge or officer as he may appoint.
(8) Prohibition on Practice after Retirement:- Art-124(7) prohibits a retired Judge of the
Supreme Court to appear and plead in any court or before any authority within the
territory of India.

Conclusion: Thus the position of the Supreme Court is very strong and its independence
is adequately guaranteed. However, there are certain disturbing trends which are likely to
threaten the independence of Judiciary at present. Firstly, although Art-124 vests the legal
power of appointment in the executive but the executive is required to consult the legal
experts. But unfortunately, the Supreme Court interpreted the word Consultation in such
a literal manner that it gave virtually discretion in the matter. Secondly, the non-
effectiveness of the impeachment proceedings which based on political influence which
also causes harm to the independence of Judiciary as the erring Judge is not being afraid
of any action being taken against him. Thirdly, the recent incident of indiscipline and
corruption charges leveled against certain judges of various High Courts has also
damaged the independence of judiciary and has shaken the confidence of common man to
get justice from the courts.

5. Discuss the Centre- State relations and explain under what circumstances the union
Parliament can legislate on the subjects in the State List.

SYNOPSIS
1. Introduction

18
 2. Centre State Relationship
a. Legislative Relationship
b. Administrative Relationship and
c. Financial Relationship
3. Circumstances under which the Parliament can Legislate on the State List
4. Conclusion.

Introduction
After independence India adopted the federal structure for, perhaps, administrative
convenience. The state did not impose compulsions. That is why limited autonomy has been
given to the states. There is dual policy, with the Union government at the centre and the state
governments at the peripheryeach enjoying powers assigned to them. The autonomy of the
states is so adjusted with the centre that the latter can perform its function of ensuring unity of
the country. Pt. Nehru wanted a happy and harmonious compromise between the strong centre
and autonomous states. Thus the Constitution provides the main aspects relating to Centre and
State relationship.

Centre State Relationship

The Indian Constitution has clearly divided powers between the two governments, yet the
Central government has been made stronger than the State governments. We can discuss the
division of powers between the two governments in India under three headings, such as,

1. Legislative relations,
2. Administrative relations and
3. Financial relations with reference to the three lists.

I. LEGISLATIVE RELATIONS-ARTICLE 246

The legislative relations between the centre and the states determined in accordance with the
provisions of the Article 246 of the Constitution. The legislative powers are categorized in three
listsUnion Lists with 97 subjects, States List with 66 and Concurrent List with 47 subjects.

So far as the legislative relations between the Central government and the State governments
is concerned, the Central government has been given exclusive power to make law on the
subjects of the Union list. The union list has 97 subjects. These subjects are of great importance
for the country and uniform in character. So, these subjects are given to the Union government.
Some such subjects are defense, foreign affairs, currency and coinage, citizenship, census, etc.

The State governments can make laws on the subjects mentioned in the State list. The State
list has 66 subjects. The subjects which are of local importance and may vary from State to State

19
are included in the State list. Some subjects of the State list are - law and order, public health,
forests, revenue, sanitation, etc. Though the State governments have power to make laws on the
subjects of the State list, yet the Central government, on certain occasions, can also make laws
on these subjects. For example, during the period of emergency, the Parliament makes laws on
State subjects.

The Concurrent list has 47subjects. On these subjects both the central and the state
governments can make laws. The subjects which are of great importance and uniform in
character but man require local variations, are included in the Concurrent list. In respect of
Concurrent list also, though both the governments can make laws on the subjects included in the
list, yet the laws made by the Central government will prevail over the State laws in case of a
conflict between the two. Some subjects of this list are economic planning, social security,
electricity, education, printing and news papers, etc. In case of residuary powers, the Union
government has exclusive power to make laws. The States have nothing to do in this regard.

Thus, we find that in legislative matters, the Union Parliament is very powerful. It has not
only exclusive control over the Union list and the residuary powers, but it has also dominance
over the Concurrent list and the State list.

The Residuary Powers-Article- 248

Article 248 vests the residuary powers in the Parliament. It says that Parliament has exclusive
power to make any law with respect to any matter not enumerated in the Concurrent List or the
State List. Entry 97 in the Union List also lay down that Parliament has exclusive power to make
laws with respect to any matter not mentioned in the State list or the Concurrent List. Residuary
legislative powers rest with the Parliament. Moreover when there is state of emergency,
Parliament can make laws on the subjects given under Union List. In the case of a conflict
between the laws made by the state and the laws passed by the centre the central law will prevail.
Clearly the centre is decidedly stronger as far as legislative powers are concerned.

Parliament Power to make Laws on State Subjects - Arts. 249,250,252, 253 and 256]

Though in normal times the distribution of powers must be strictly maintained and neither the
State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, Yet in
certain exceptional circumstances the above system of distribution is either suspended or the
power of the Union Parliament are extended over the subjects mentioned in the State List. The
exceptional circumstances are:-

1. Power of the Parliament to Legislate in the National Interest:

According to Art-249, if the Rajya Sabha passes a resolution supported by 2/3rd of

the members present and voting that it is necessary or expedient in the national interest
that parliament should make laws with respect to any matter enumerated within the State

20
 law. Then it shall be lawful for the Parliament to make laws for the whole or any part of
the territory of India with respect to that matter so long as the resolution remains in force.
Such a resolution lasts for a year; it may be renewed as many times necessary but not
exceeding a year at a time. These laws of Parliament will, however, cease to have effect
on the expiration of the period of six months after resolution has ceased to operate.

2. During a Proclamation of Emergency:-

According to Art-250 while the Proclamation of Emergency is in operation the
Parliament shall have power to make laws for the whole or any part of the territory of India with
respect to all matters in the State List. Such a law, however, shall cease to have effect on the
expiration of six months after the proclamation of emergency has ceased to operate.
3. Parliaments Power to Legislate with the Consent of the States:-
According to Article 252 if the Legislature of two or more States pass resolution to the
effect that it is desirable to have a law passed by parliament on any matters in the State List. It
shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt
such a law by passing a resolution to that effect .such law can only be amended or repealed by
the Act of Parliament.
4. Parliaments Power to Legislate for Giving Effect to Treaties and International Agreements:-
Article-253 empowers the Parliament to make any law for the whole or any part
of the territory of India for implementing treaties and international agreements and
conventions. In other words, the normal distribution of powers will not stand in the way
of Parliament to pass a law for giving effect to an International obligation even though
such law relates to any of the subjects in the State List. Art.253 enables the Government
of India to implement all international obligations and commitments. Treaties are not
required to be ratified by Parliament. They are, however, not self-operative.
Parliamentary legislation will be necessary for implementing the provisions of a treaty.
But laws enacted for the enforcement of treaties will be subject to the constitutional
limits, that is, such a law cannot infringe fundamental right.

5. In Case of Failure of Constitutional Machinery in a State:-

Under Article 256, Parliament is empowered to make laws with respect to all matters
in the State List when the Parliament declares that the Government of the State cannot be
carried on in accordance with the provisions of the Constitution. Thus from the scheme of
distribution of legislative powers between the Union and the States it is quite evident that the
framers have given more powers to the Union Parliament as against the States. The States are
not vested with exclusive jurisdiction even over the subjects assigned to the states by the
Constitution and thus it makes the States to some extent subordinate to the Centre.

Conclusion

The Constitution of India divides powers between the Union and the State governments.
The Seventh Schedule of the Constitution includes three lists of subjects - the Union List, the

21
State List and the Concurrent List. The Central or Union Government has exclusive power to
make laws on the subjects which are mentioned in the Union List. The States have the power to
make law on the subjects which are included in the State List. With regard to the Concurrent
List, both the Central and State governments can make laws on the subjects mentioned in the
Concurrent List. Finally, the subjects which are not mentioned in the above three lists are called
residuary powers and the Union government can make law on them

6. What are the types of Emergencys? Discuss the National Emergency and the
Effects of Proclamation of National Emergency.

SYNOPSIS

1. Introduction
2. Types of Emergency
3. Provisions relating to National Emergency
4. Effects of National Emergency
5. Conclusion

Introduction:

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.

Therefore, some emergency provisions were made in Constitution to safeguard and

protect the security, integrity and stability of the country and effective functioning of State
Governments. One of the chief-characteristics of the Indian Constitution is the way in which the
normal federal Constitution can be adapted to emergency situation. It is the merit of the
Constitution that it visualises the circumstances when the strict application of the federal
principles might destroy the basic assumptions on which our Constitution is built.

Types of Emergency

The Constitution of India prescribes three types of Emergencys they are as follows

1. National Emergency
2. State Emergency
3. Financial Emergency.

National Emergency- Art-352

22
 In each case the President may issue a proclamation with varying consequences. In this
section we will discuss the emergency caused by war etc., popularly known as the national
emergency.

Proclamation of National Emergency (Article 352)

The Constitution of India has provided for imposition of emergency caused by war, external
aggression or armed rebellion. This is described as the National Emergency. This type of
emergency can be declared by the President of India if he is satisfied that the situation is very
grave and the security of India or any part thereof is threatened or is likely to Be threatened
either

(i) by war or external aggression or

(ii) by armed rebellion within the country.

The President can issue such a proclamation even on the ground of threat of war or
aggression. According to the 44th Amendment of the Constitution, the President can declare
such an emergency only if the Cabinet recommends in writing doing so. This means that the
emergency can be declared only on the concurrence of the Cabinet, and not merely on the advice
of the Prime Minister as was done by the Prime Minister Smt. Indira Gandhi in June, 1975. She
had advised the President to proclaim emergency without consulting her Cabinet.

The proclamation of emergency must be laid before each House of the Parliament and it
shall cease to be in operation at the expiration of one month (prior to the 44th Amendment it was
two months) unless before the expiry of one month it has been approved by resolutions of both
Houses of Parliament. Such a proclamation of emergency has to be approved by both the Houses
of Parliament by absolute majority of the total membership of the Houses as well as 2/3 majority
of members present and voting within one month, otherwise the proclamation ceases to operate.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in
session, it has to be approved by the Rajya Sabha within one month and later on by the Lok
Sabha also within one month of the start of its next session. Once approved by the Parliament,
the emergency remains in force for a period of six months from the date of proclamation. In case
it is to be extended beyond six months, another prior resolution has to be passed by the
Parliament.

In this way, such emergency continues indefinitely. But if the situation improves the
emergency can be revoked by another proclamation by the President of India. The 44th
Amendment of the Constitution provides that ten per cent or more members of the Lok Sabha
can requisition a meeting of the Lok Sabha and in that meeting, it can disapprove or revoke the
emergency by a simple majority. In such a case emergency will immediately become
inoperative.

23
 National Emergency has been declared in our country three times so far.

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.

 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. 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.

GROUNDS FOR NATIONAL EMERGENCY

The president can proclaim emergency if he is satisfied that the security of India or any part
thereof is threatened either by war or external aggression or armed rebellion. Prior to the 44th
Amendment one of the ground on which emergency could be declared was Internal
Disturbance. These words were vague and gave wide discretion to the Executive to declare
emergency even on flimsy grounds. In 1975, the emergency was declared on the ground of
internal disturbance by the then P.M. Indira Gandhi because the opposition parties had given a
call to launch a movement with a view to compelling the P.M. to resign from her post as her
election to the Lok Sabha was declared void by the Allahabad High Court.

 Indira Gandhi v/s Raj Narayan:

On 25-6-1975, the President Proclaimed National Emergency under the cause of Internal
Disturbance on the advice headed by Smt. Indira Gandhi, the then P.M. this was called as
Black Period in India after Independence. It created a great controversy in 1975. As a
result by the 44th Amendment Act 1978, the phrase Internal Disturbance in Article 352 was
removed. So that in future no Central Government can misuse the power under the
Proclamation of Emergency.

 Bennet Coleman and Co. v/s Union of India

In this case the Supreme Court concluded that the Proclamation Emergency should not
invalidate a law which was valid before the Proclamation of Emergency. The 44th
Amendment has now substituted the words armed rebellion for the words internal
disturbance which will exclude the possibility of a situation which arose in 1975.
Emergency provisions vest a very great in the Executive. In the Constituent Assembly
certain members had expressed the view that this power might be misused by the Executive.

24
 The Constitution itself provides certain safeguards against the abuse of emergency
powers by the Executive.

 First, it is to be exercised on the advice of the Council of Ministers who are

representatives of the people.

 Secondly, it must be laid before the parliament and cannot remain in force beyond one
month without its approval.

Duration of Emergency:

Prior to the 44th Amendment a Proclamation of Emergency could remain in force in the first
instance for two months. But once approved by Parliament emergency could remain in force
indefinitely i.e., as long as the Executive wanted it to continue. The 44th Amendment has
curtailed the power of the Executive to prolong the operation of emergency unnecessarily.
After 44th Amendment, a Proclamation of Emergency may remain in force in the first instance
for one month. Such a Proclamation of Emergency must be passed by either House of
Parliament by the special majority that is by majority of the total membership of that House
present and voting. For further continuance of emergency beyond the period six months approval
by Parliament would be required after every six months. Thus after this Amendment the
continuance of emergency does not depend upon the discretion of the executive . It can now be
done only with thee approval of parliament and that too by a special majority of the House.

Effects of Proclamation of Emergency

1. Extension of Centres Executive Power(Art-353):-

During the operation of a Proclamation of Emergency the Executive power of the Union
extends to giving of directions to any State as to the manner in which the executive power of
the State is to be exercised. The 42nd Amendment made a consequential change in Art.353
following the amendment made in Article 353. it provides that the executive power of the
Union to give directions under clause (a) and the power to make laws under clause (b) shall
also extend to any state other than the State where emergency is in force, if the security of
India or any part of the territory is threatened by activities is or relation to that part of the
territory of India in which the Proclamation of Emergency is in operation. In normal time, the
executive power does not extend to give such direction subject to certain exceptions.

2. Parliament Empowered to Legislate on State Subjects [Art-353(b)]:-

While the Proclamation of Emergency is in operation, the Union parliament is

empowered to make laws with respect to any of the matters in the State List. The distribution
of legislative power is thus fundamentally changed during emergency. The law-making
power of the State is not suspended during the emergency. The State can make law but it is
subject to the overriding power of the Union Parliament.

25
 3. Centre Empowered to Alter Distribution of Revenue between the Union and the State
(Art-354):-

The President may, while a Proclamation of Emergency is in operation by order after the
financial arrangement between the State and the Union as provided in Article-268 to 279.
Every such order is to be laid before each House of Parliament and will come to an end by
the end of the financial year in which the Proclamation of Emergency ceases to operate.

4. Extension of Life of Lok Sabha (Art.83 (2)):-

While the Proclamation of Emergency is in operation, the President my extend the

normal life of the Lok Sabha by a year each time upto a period not exceeding beyond six
months after Proclamation ceases to operate.

5. Suspension of Fundamental Rights Guaranteed by Art.19:-

Article 358 provides for suspension of the six freedoms guaranteed to the citizens by
Article 19 of the Constitution. It says that while a Proclamation of Emergency is in operation
nothing in Article 19 shall restrict the power of the State to make any law or to take any
executive action abridging or taking away the rights guaranteed by Art.19. It means tat as
soon as the Proclamation of Emergency is made the freedoms guaranteed by Art.19 are
automatically suspended. Normally, the rights guaranteed by Art.19 ceases to restrict the
legislative or the executive power of the Centre or the States for the period of emergency and
by law made by the Legislature or any action taken by the Executive cannot be challenged on
the ground that they are inconsistent with the rights guaranteed by Art.19.

 M. M. Pathak v/s Union of India

In this case the Supreme Court opined that the Article 14 and 19 shall not be
suspended during emergency, but only their operation would be suspended during
emergency, as soon as the Emergency, lifted out, Article 14 and 19 come into life, and
would strike down any legislation which have been valid. The declaration of validity was
stayed during the emergency. It did not mean that the settlement was washed away. As
soon as the emergency is lifted, the settlement would revive.

6. Suspension of the Right of Enforcement of Fundamental Rights- Art-359

Article 359 empowers the President to suspend the right to enforce fundamental right
guaranteed by Part III of the Constitution. It says that while the Proclamation of Emergency
is in operation, the President may by order declares that the right to move any Court for the
enforcement of such of the fundamental rights as may be mentioned in the order except
Articles 20 and 21 and all proceedings pending in any Court for the enforcement of such
rights shall remain suspended for the period during the Proclamation is in force or for such

26
 shorter period as may be specified in the order. An order suspending the enforcement of
fundamental rights may extend to the whole or any apart of the territory of India.

Conclusion:

Provisions have been made in the Constitution for dealing with extraordinary situations that
may threaten the peace, security, stability and governance of the country or a part thereof. There
are three types of extraordinary or crisis situations that are envisaged.

 First, when there is a war or external aggression has been committed or there is threat of
the same, or if internal disturbances amounting to armed rebellion take place;
 second, when it becomes impossible for the government of a State to be carried on in
accordance with the Constitution; and
 third, if the credit or financial stability of the country is threatened.

7. Write Short-Note on any Two of the following: Marks: 02 X 08 = 16

a. Fundamental Duties
Part-IV-A which consists only one Article-51-A was added to the constitution by
nd
the 42 Amendment Act 1976. This Article for the first time specifies a code of eleven
fundamental duties for citizens. The object of the part-IV-A is to achieve national
integrity and respect. Its object is to make every citizen to realise that he has certain
duties towards the nation. Originally Fundamental Duties were ten in number; the
Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which
added a duty on every parent or guardian to ensure that their child or ward was provided
opportunities for education between the ages of six and fourteen years. Citizens are
morally obligated by the Constitution to perform these duties. However, like the
Directive Principles, these are non-justifiable, without any legal sanction in case of their
violation or non-compliance.

The Fundamental Duties noted in the constitution are as follows:

It shall be the duty of every citizen of India
(a) to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;

27
 (f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
h) to develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity
so that the nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child
or, as the case may be, ward between the age of six and fourteen years. which
added a duty on every parent or guardian to ensure that their child or ward was
provided opportunities for education between the ages of six and fourteen years.
Citizens are morally obligated by the Constitution to perform these duties. However, like the
Directive Principles, these are non-justifiable, without any legal sanction in case of their
violation or non-compliance.

b. Public Interest Litigation.

Public Interest litigation, itself says that this is a litigation for any public
interest. In the words of some learned people we can say that public interest litigation
is a litigation which can be file in any court of law by any public spirited person for
the protection of public interest. As it is said that this petition can file any public
spirited person so its mean that there should not be interest of only himself. There in
word only says that in can be possible that in that act for what he is filing a PIL there
in a small part of his benefit also hide But it's not mean that he cannot file. If he is
interest of public then he can file public interest litigation. There are some various
area where a public interest litigation can be filed.
1. Violation of basic human rights of the poor.
2. Content or conduct of government policy.
3. Compel municipal authorities to perform a public duty.
4. Violation of religious rights or other basic fundamental rights.
These are the main area where any public interest litigation can be filed
against State/Central Govt., Municipal Authorities, and not any private party.
However private party can be include in this as a respondent after making concern
state authority. This petition is filed in high court or Supreme Court just a same
manner as other writ petition filed. There is some fee for this purpose and its
hearing proceeds are also just like other cases.
M C Mehta is a very renowned name in the field of PIL his contribution in
this field especially in environment is remarkable which helped in the protection
of India natural and cultural treasures like Ganga (MC Mehta vs. Union of India)
and Taj Mahal. (M.C. Mehta (Taj Trapezium Matter) v. Union of India and Ors.)

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 He also advocated for alternate energy in transport system and his contribution in
curbing child labour is also commendable.
All these petitions are filed under the big banner of the public interest
litigation. The public interest litigation is an extremely important jurisdiction
exercised by the Supreme Court and the High Courts. The Courts in a number of
cases have given important directions and passed orders which have brought
positive changes in the country. The Courts' directions have immensely benefited
marginalized sections of the society in a number of cases. It has also helped in
protection and preservation of ecology, environment, forests, marine life, wildlife
etc. etc. The court's directions to some extent have helped in maintaining probity
and transparency in the public life. The courts while exercising its jurisdiction of
judicial review realized that a very large section of the society because of extreme
poverty, ignorance, discrimination and illiteracy had been denied justice for time
immemorial and in fact they have no access to justice.
Public interest litigation can be filed only in that case where any public
interest is affecting at large. Because if only one person is affecting then that is
not a ground for filing PIL.

c. Doctrine of Pleasure.
With the independence of our country, the responsibilities of the services have
become onerous. They may make or mark the efficiency of the machinery of
administration, machinery so vital for the peace and progress of the country. A
country without an efficient civil service cannot progress inspite of the earnestness of
the people at the helm of affairs in the country. Whatever democratic institutions
exist, experience has shown, that it is essential to protect the public services as far as
possible from political or personal influence.
Recruitment and Regulation of Conditions of Services [Article-309]

Article 309 empowers the parliament and the State Legislatures to regulate the
recruitment and the conditions of services of the persons appointed to the public
services and posts under the Union and the States, respectively. Until provision in that
behalf is made by an appropriate legislature under Article 309, the President and the
Governors may make rules for regulating recruitment and conditions of services of
persons appointed to such services and posts. The Constitution itself provides for the
creation of the Public Services Commission for the Union and the States to assist in
the recruitment of the Public Services.

In England a civil servant holds his office during the pleasure of the Crown. This
means that his services can be terminated at any time by the Crown, without
assigning any reason. Even if there is a contract of employment between the Crowns,
the Crown is not bound by it. Article 310 of the Constitution of India incorporates the

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 English doctrine of pleasure by clearly stating that every person who is a member of a
defense service or of a civil service of the Union or of an all India service or holds
any post connected with defense or any civil post under the Union, holds office
during the pleasure of the President, and every person who is a member of a civil
service of a State or holds any civil post under a State holds office during the pleasure
of the Governor of the State. But this power of the Government is not absolute.
Article 311 puts certain restriction on the absolute power of the President or Governor
for dismissal, removal or reduction in rank of an officer.

Restrictions on Doctrine of Pleasure-Article-311

The Constitution under Article 311 lays down the following limitations on the exercise of the
doctrine of pleasure:

1. The pleasure of the President or Governor is controlled by the provisions of Article 311.

2. The tenure of the Supreme Court Judges, High Court Judges, Auditor-general of India,
the Chief Election Commissioner, and the Chairman and members of the Public Service
Commission, are not dependent on the pleasure of the President or the Governor, as the
case may be . These posts are completely excluded from operation of the doctrine of
pleasure.

3. The doctrine of Pleasure is subject to the Fundamental Rights.

8. Solve Any Two of the Following Problems: Marks: 02 X 10 = 20

A. A Magistrate issues an order authorising the investigating officer to take the

specimen handwriting and finger prints of Mr. X, an accused against his
willingness. X challenges the order stating that it violates his fundamental right
under Article 20(3). Decide.
Yes, it violates the fundamental rights of the accused under Article 20(3) of
the Constitution.
Because, as per Article 20 of the constitution it safeguards the rights of persons
convicted of offences. This Article is so important that the 44th constitutional
amendment provides that this right or protection cannot be suspended even during an
emergency.
According to article 20 (3) No person accused of any offence shall be
compelled to be a witness against himself.
This article gives protection of self- incrimination. Self- incrimination means
conveying, information based upon personal knowledge of the person giving
information involving himself to be the prime part taker in the offence. The object of
Article 20 (3) recognises that privileges of an accused person to gourd himself against

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 self- incrimination. The accused can refuse to answer any question that is put to him
with the intention to incriminate.
With respect to the above case the act done by the investigating officer is said to be
considered as unconstitutional and it violates the fundamental rights of an accused
person because, in a significant judgement in Selvi v/s State of Karnataka, the
accused have challenged the validity of certain scientific techniques namely, Narco-
analysis, Polygraph and Brain Finger Printing tests without their consent as violative
of Article 20 (3) of the constitution, they argued that these scientific techniques are
softer alternatives to the regrettable use of third degree methods by investigators and
violates right against self incrimination in Article 20 (3) of the constitution. The
Supreme Court unanimously held that these tests are testimonial compulsions and are
prohibited by Article 20 (3) of the constitution.
Thus, from the above it is clear that the accused person Mr. X is entitled to
protection under Article 20(3) of the Constitution of India

B.The legislature of a State in India passes an Act prescribing a lower rate of sales tax on
cotton goods manufactured within that State than on goods imported from other States. A
trader in cotton goods challenges the validity of the Act on the ground of violation of
freedom of Inter-State Trade and Commerce. Decide.

Yes, in this case it violates the freedom of Inter-State Trade and Commerce.

The Constitution of India provides for the provisions relating to create and preserve a national
economic fabric to remove and prevent local barriers to economic activity, to remove the
impediments in the way of Inter-State Trade and Commerce and thus make the country as one
single economic unit so that economic resources of all the various units may be utilized to the
common advantage of all.

In this regard, Article 301 of the Constitution speaks about the freedom of Inter State Trade and
Commerce though out the territory of India. The freedom given under Article 301 is not an
absolute freedom. it is a freedom with certain restrictions where the laws and regulations will be
applicable to the citizens who carries their trade and commerce. The Parliament and the State
Legislatures can impose any kind of that is regulatory and compensatory restrictions on the Inter
State Trade and Commerce.

Under Article 304 of the Constitution it empowers the State to impose any tax on goods imported
from other State if similar goods in the State are subjected to similar tax so as not to discriminate
between goods so imported and goods manufactured or produced in the State.

In State of Madhya Pradesh V/S Bhailal Bhai: A State of Law imposed sales tax on imported
tobacco but locally produced tobacco was not subject to such sales tax. The Court invalidated the
tax as discriminatory.

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This Article 304(2) authorises the State to impose such reasonable restrictions on the freedom of
trade, commerce and intercourse as may be required in the public interest. But no Bill or
amended for this purpose can be introduced in the Legislature of State without the previous
sanction of the President. The State power is subordinate to the Parliaments regulatory laws
without the Sanction of the President.

Thus, in the Present case also the legislature of a State in India passes an Act prescribing a lower
rate of sales tax on cotton goods manufactured within that State than on goods imported from
other States. It violates the freedom of Inter- Sate Trade and Commerce of a trader in cotton
goods. Thus, the trader challenging the validity of the Act is valid.

C.Can a member of a Parliament raise a discussion as to the conduct of Judge of the

Supreme Court or a High Court? Decide.

No, a member of a Parliament cannot raise a discussion as to the conduct of Judges of the
Supreme Court or a High Court.

The judiciary (also known as the judicial system or court system) is the system of courts that
interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the
resolution of disputes. Judges constitute a critical force for interpretation and implementation of a
constitution. A judge is often pictured as a blind fold person who holds the scales of justice, which
he administers even handed. A Judge must be a person of high integrity, dignity and
independence; then only he will be able give judgments freely and impartially.

Article 121 of the Constitution prohibits any discussion in Parliament with respect to the conduct of any
judge of the Supreme Court or of a High Court in the discharge of his duties expect when resolution is
presented to the Parliament for the removal of a Judge. The object of this Article is to ensure the
independence of judiciary.

From the above it is clear that the Member of a parliament cannot raise any kind of discussion as to the
conduct of the Judge of the Supreme Court or a High Court, as it is against the provisions of Article 121
of the Constitution. It is a Constitutional privilege given to the Judges of Supreme Court and the High
Court.

The Judges of Supreme Court and the High Court can be removed only on the ground of proved
misbehaviour by the order of the President. The order of the President can only be passed after it has been
addressed to both the Houses of Parliament in the same session. Thus the conduct of the Judges of the
Supreme Court and the High Court.

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