TRANSFER OF PROPERTY ACT

Examination notes
UNIT: 1
Q.1. DEFINE TRANSFER OF PROPERTY
ACORDING TO TRANSFER OF PROPERTY ACT 1882(SECTION-5)
 Transfer of property means an act by which person convey property to one
or more persons.

 The act of transfer may be done in the present or for the future.

 The person may be include on individual, company, or association or

anybody of individual, and any kind of property may be transferred
including the transfer of immovable property.

Case: prethi singh v ganesh A.I.R (1951)

 This definition is applicable also to properties situated outside India or the
territories to which this the act is not applicable.

Transaction which are not consider as transfer of property

1. Compromise: compromise means agreement for settlement of doubtful
claim between the parties in respect of some properties.

2. Partition: partition means spreading the parts of co-owned properties.

3. Family settlement: mutual agreement between members of a family to hold

their respective shares separately.

4. Charge: charge is created on a property for securing a payment out that

property.

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Q.2. DEFINE IMMOVABLE PROPERTY
Definition
 Section-3 of general clauses act and transfer of property act define
immovable property is also not exhaustive.

 It define immovable property as it shall include land, benefits to arise out

of land and things attached to earth.

Examples of immovable property.

1. Land : it means a determinate portion of earth’s surface, which may be
covered by water, the column of surface above the surface. Land is a
consider as a immovable property.

2. Benefits to arise out of land: apart from physical point of view, every
benefits arise out of land is also regarded as immovable property.

3. Things attached to earth : section-3 of transfer of property act defines the

expression “attached to earth as including Things rooted in earth
 Things embedded in the earth
 Things attached to what is so embedded, and
 Chatted attached to earth building.

4. Standing timber: the word standing timber includes babool tree, shisham,
nimb, papal banyan, teak bamboo etc,. are consider as immovable property.

5. Growing corps: growing crops includes creapers like pan, angoor, etc,.
millets(wheat, sugarcane, etc), vegetable like lauki, kaddo etc. these crops
don’t have any own independent existence beyond their final produce.

6. Grasses: it can only be used as fodder and no other use is possible.

Therefore it’s movable but contract to cut grass will be an interest in chattel,
so is immovable property.

The following has been judicially recognised as immovable property.

 Right to collect rent of immovable property.
 Right to dues from a fair on a piece of land.

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  A right of fisheries.
 A right of terry.
 A right of way.
 Hereditary offices
 The interest of mortgagee in immovable property.

NOTE - Movable property has not been defined in the transfer of property
act. The general clauses act, 1897 define movable property as “property of
every description except immovable property”.

Q.3. DISCUSS PROPERTIES THAT MAY BE TRANSFERRED

AND PROPERTIES THAT MAY NOT BE TRANSFERD.

According to section 6 of transfer of property act 1882

Property of any kind may be transferred, except as otherwise provided by this Act
or by any other law for the time being in force:

a) The chance of an heir-apparent succeeding to an estate, the chance of a

relation obtaining a legacy on the death of a kinsman, or any other mere
possibility of a like nature, cannot be transferred.

b) A mere right of re-entry for breach of a condition subsequent cannot be

transferred to any one except the owner of the property affected thereby.

c) An easement cannot be transferred apart from the dominant heritage.

d) All interest in property restricted in its enjoyment to the owner personally

cannot be transferred by him( A right to future maintenance, in whatsoever
manner arising, secured or determined, cannot be transferred).

e) A mere right to sue cannot be transferred.

f) A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it has become payable.

g) Stipends allowed to military and civil pensioners of the and political

pensions cannot be transferred.

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 h) No transfer can be made
 in so far as it is opposed to the nature of the interest affected thereby,
or

 for an unlawful object or consideration within the meaning of section

23 of the Indian Contract Act, 1872 (9 of 1872), or

 to a person legally disqualified to be transferee; (Nothing in this

section shall be deemed to authorize a tenant having an transferable
right of occupancy, the farmer of an estate in respect of which default
has been made in paying revenue, or the lessee of an estate, under the
management of a Court of Wards, to assign his interest as such tenant,
farmer or lessee).

Q.4. DISCUSS THE CONDITION RESTRAINING ALIENATION.

According to section 10 of transfer of property act

 Where property is transferred subject to a condition or limitation absolutely

restraining the transferee or any person claiming under him from parting
with or disposing of his interest in the property,

 the condition of limitation is void. Except in the case of lease where this
condition is for the benefit of the lesser or those claiming under him:
provided that property may be transferred to or for the benefit of woman,

 So that she shall not have property transfer or charge the same for her
beneficial interest there in.

Example:
 If a transfers his property to B with a condition that B shall never sell it, or
shall sell it only to a particular person,

 The condition is void, and B any sell or not as he pleases.

 Here the sections Olives that only the condition (restraining alienation) is
void and not the transfer itself.

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Case: Rosher v. Rosher, (1884)
 a person A made a gift of house to B with a condition that if B sold during
the life-time of A’s wife,

 she should have an option to purchase it for Its. 10,000. The value of the
house was Rs. 10,00,000.

 This was held to be a effect an absolute restraint and void.

Absolute and Partial Restriction:

 The conditions or limitation on alienation may d be either absolute or partial.
 Absolute restraints are declared void under Section 10, however partial
restraints may be allowed.

 Whether a condition amounts to a total or partial depends upon the

substance, i.e., the real effect of the condition and not the form of words
laying down the condition.

 An absolute restraint is one that takes away the power of alienation

completely or substantially, whereas, partial restraint is one that imposes
some restriction on the power of alienation but the tram is substantially free
to alienate property in various ways.
Case: Renand v. Tourangeaon, (1867)
 it was held that a condition that transferee shall not transfer the property for
a period of twenty years is an absolute restriction and thus void.

 If it were a condition that transferee shall not transfer the property for a
period of 3 years, it would be a partial restraint and thus valid.
Illustrations:
 A condition that transferee shall not transfer the property by way of gift, is a
partial restraint and thus valid.

 A condition that transferee shall not transfer the property family/or to a

particular person only, is a partial restraint and thus valid.
 On the other hand, if a transferor A transferred a failed to transferred B, with
a condition that if he sold it he must sell to C (A particular person) and
nobody else. The restriction was held to be absolute and thus void.

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  A stipulation in a sale-deed that the vendee could sell-back the property to
the vendor only, and to no one else, is more than a mere partial restraint, and
thus invalid.

 A compromise by way of settlement of family disputes has been held to be

valid, although it involves an agreement in restraint of alienation.

Case: Mata Prasad v. Nageshera Sahal, (1925)

 a dispute relating to succession between a widow and the nephew was

compromised on terms that the widow was to retain possession for life while
the title of the nephew was admitted with a condition restraining him from
alienating during her life-time. The compromise was held to be valid.
Exception:
1) Lease: When the condition is for the benefit of the lessor or those claiming
under him, it will be valid. Thus a condition in lease that the lessee should
not sublet or assign is valid. The logic behind this exception is that landlord
should be free to choose the person who shall be in possession of his land.

2) Marriage woman: A condition restraining alienation may be imposed when

the property is transferred to a married woman is not a Hindu Mohammedan
or a Buddhist. Restriction on Free Enjoyment of Property.

Q.5. DISCUSS THE PROVISION FOR BENEFITS OF UNBORN

PERSON.

 An unborn person means a person who is not in existence even in mother’s

womb. Section 13 provides that Property cannot be transferred directly to an
unborn person but property can be transferred for the benefit of an unborn
person Subject to following Conditions:

 Transfer for the unborn must be preceded by a life interesting favour

of a person in existence at the date of the transfer , and

 only absolute interest may be transferred in favour of the unborn .

Example:
 A transfers his house to X for life an unborn son of A.

 The transfer of house in favour not in existence at the date of the transfer, A
could not transfer the house directly to him.

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  So, A had to make direct transfer of life interest in favour of A who is a
living thereafter to B who is an of B is valid.

 Here since B is person at the dat e of transfer. After the death of X the
interest of the house shall pass on to B who is ultimate beneficiary.

 The property may be given to more than one living persons

successively for life' before it ultimately vests in the unborn.

 Absolute interest in the property may be transferred in favour unborn

person.

 Section 13 enacts that interest given to the unborn person must be the
whole of the remaining interest of the transferor in the property.
Example:
 A transfers his properties to X for life who is unmarried and then to the
eldest child of X absolutely.

 The transfer in favour child of X is valid.

UNIT: 2

Q.1. WHAT IS CONTINGENT AND VASTED INTEREST.

DISCUSS THE PROVISIONS TO REALATING TO IT IN
TRANSFER OF PROPERTY ACT 1882

 The Transfer of Property Act deals with two kinds of interest vested interest
and contingent interest. Vested interest is to be distinguished from
contingent interest.

 When an interest is vested, the transfer is complete but when the interest is
contingent, the transfer depends upon a condition precedent.

 When the condition is fulfilled the transfer takes effect and that the interest
becomes vested.

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Contingent Interest –
Section. 21 define Contingent interest as follows:
 Where, on a transfer of property, an interest therein is created in favour of a
person to take effect only on the happening of a specified uncertain event,
or
 If a specified uncertain event shall not happen, such person thereby acquires
a contingent interest in the property.
 Such interest becomes a vested interest, in the former case, on the
happening of the event,
 In the latter, when the happening of the event becomes impossible.

Exception:
 Where, under a transfer of property, a person becomes entitled to an interest
therein upon attaining a particular age, and the transferor also gives to him
absolutely the income to arise from such interest before he reaches that age,
or directs the income or so much thereof as may be necessary to be applied
for his benefit, such interest is not contingent.
Illustration:
 'X' bequeathed his property i.e. estate to 'Y' until he shall marry to 'Z'.
 'Y's interest in the bequeath is contingent because it depends upon a
condition precedent i.e. a marriage of 'Y' with 'Z'. An event has no
proprietary interest in the estate and cannot alienate it.
 But as soon as 'Y' marries with 'Z' his contingent interest becomes vested
interest

Provision relating to contingent interest.

Section.22 provides.
 Where, on a transfer of property, an interest therein is created in favour of
such members only of a class as shall attain a particular age,
 Such interest does not vest in any member of the class who has not attained
that age.

Section.23 provides.
 Where, on a transfer of property, an interest therein is to accrue to a
specified person if a specified uncertain event shall happen,
 and no time is mentioned for the occurrence of that event, the interest fails
unless such event happens before, or
 At the same time as, the intermediate or precedent interest ceases to exist.

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Section.23 provides.
 Where, on a transfer of property, an interest therein is to accrue to such of
certain persons as shall be surviving at some period,
 but the exact period is not specified, the interest shall go to such of them as
shall be alive when the intermediate or precedent interest ceases to exist,
 Unless a contrary intention appears from the terms of the transfer.

Characteristics of contingent interest

 A contingent interest is solely depending upon the fulfilment of a condition.
 If the transferee dies before obtaining possession the continent interest fails
and property revert to transferor.
 Contingent interest is Transferable, whether it is heritable or not depend
upon the nature of such contingency.

Case: Rajesh Kanta Roy vs. Shrimati Sunita Debi AIR1957, S.C.
 One Ramani Kanta Roy executed a registered trust deed in respect of his
properties.
 The eldest son Rajesh was appointed the sole Trustee to hold the properties
under the trust subject to certain power and obligation.
 After his death his two sons Rajesh and Ramendra got interest in the
property.
 There was a clause in the trust deed that both of them was to get interest in
the properties allotted to each other happening of the two events –
1) Discharge of all the debts specified in the schedule and death of the
settler himself.
2) The trust was to come to an end on the death of settler and the son
were to get properties allotted to them there after.
 Issue before the court was whether the interest created by the trust were
vested or contingent?
 A Supreme Court held that the interest taken by the two brothers under the
trust deed was vested and not contingent because it was certain event.

Vested Interest –
Section 19 of Transfer of Property Act defines vested interest as follows:
 Where, on a transfer of property, an interest therein is created in favour of a
person without specifying the time when it is to take effect, or
 in terms specifying that it is to take effect forthwith or on the happening of
an event which must happen,
 such interest is vested, unless a contrary intention appears from the terms of
the transfer.
 A vested interest is not defeated by the death of the transferee before he
obtains possession.

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Explanation:
 An intention that an interest shall not be vested is not to be inferred merely
from a provision whereby the enjoyment thereof is postponed, or
 whereby a prior interest in the same property is given or reserved to some
other person, or
 whereby income arising from the property is directed to be accumulated until
the time of enjoyment arrives, or
 From a provision that if a particular event shall happen the interest shall pass
to another person.

Illustration
 A transfers property to B in trust for C and direct B to give possession of
the property to C when C attains age of 25 years.
 In this problem the enjoyment in the property is postponed but this does not
prevent the interest vesting immediately, but such transfer is itself void when
C attains majority.
 Therefore C has vested interest and entitled to a possession of property at the
age of 18.

Provisions relating to vested interest:

Section 20 provides
 Where, on a transfer of property, an interest therein is created for the benefit
of a person not then living, he acquires upon his birth,
 unless a contrary intention appears from the terms of the transfer, a vested
interest,
 Although he may not be entitled to the enjoyment thereof immediately on
his birth.

Characteristics of vested interest:

 Vested interest does not depend upon the fulfillment of a condition. It
creates present and immediate right though the enjoyment may be postponed
to future date.
 A vested interest is not defeated by the death of transferee before obtaining
possession; it will pass on To His heirs.
 Vested interest is Transferable and heritable.

Case: Sundar Bibi vs Rajendra Narayan AIR1925 All.389

 In this case the Allahabad High Court held that in a vested interest the title
passes absolutely from the transferor to the transferee at the date of the
transfer, though the enjoyment may be postponed.

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Case: Rajesh Kanta Roy vs. Shrimati Sunita Debi AIR1957, S.C.255

 One Ramani Kanta Roy executed a registered trust deed in respect of his
properties. The eldest son Rajesh was appointed the sole Trustee to hold the
properties.

Difference between contingent and vested interest:

Contingent interest vested interest

Definition Section 21 define Section 19 defines Vested

Contingent interest
Where, on a transfer of
property, an interest therein
is created in favour of a
person to take effect only on
the happening of a specified
uncertain event, or if a
specified uncertain event
shall not happen, such person
thereby acquires a contingent
interest in the property. Such
interest becomes a vested
interest, in the former case,
on the happening of the
event, in the latter, when the
happening of the event
becomes impossible.
interest
Where, on a transfer of property,
an interest therein is created in
favour of a person without
specifying the time when it is to
take effect, or in terms
specifying that it is to take effect
forthwith or on the happening of
an event which must happen,
such interest is vested, unless a
contrary intention appears from
the terms of the transfer.

Fulfilment of Contingent interest is solelyVested interest does not depend

conditions depending upon the
upon fulfilment of any
fulfilment of any condition. condition. It creates an
If the condition is not immediate right though the
fulfilled the interest fails enjoyment is postponed to a
future date.
Effects of Vested interest is not Contingent interest is defeated
transferee's defeated by the death of by the death of transferee before
death transferee before he obtains he obtains possession.
possession.

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 It is Transferable but whether
Whether it is heritable, depends upon
transferable and nature of condition.
heritable? It passes not on heir on the
death of the transferee
received to transfer.
Present right of There is no present right of
enjoyment. enjoyment, there is mere a
promise for giving such a
right.
It is both Transferable and
heritable. If the transferee of the
vested interest dies before actual
possession or enjoyment it
passes to his heirs.
There is present, immediate right
even when its enjoyment is
postponed.

Q.2.TRANSFER BY OSTENSIBLE OWNER. DISCUSS BENAMI

TRANSITION ACT 1988

Transfer by ostensible owner:

Ostensible owner:
 Ostensible owner is not real owner
 But who can represent himself as a real owner to 3rd party for such dealing

According to section 41 of transfer of property act 1882

 Where, with the consent, express or implied of person interested in
immovable property, a person is the ‘ostensible owner’ of such property.
 And transfer of same for consideration, the transfer shall not be voidable on
the ground that the transferee after taking ‘reasonable care’ to attaining that
the transferor had power to make transfer, has acted ‘good faith’

Essential of transfer by ostensible owner.

1) Consent: the consent such transaction can be express or implied. It is not

required that the real owner has to give express consent or give his consent
in writing.
2) Consideration: consideration is must if there is a transfer by ostensible
owner. He cannot give away the property as a gift.
3) Reasonable care: reasonable care can be understood as the care which a
reasonable and ordinary man would have taken.
4) Good faith: good faith simply means that the transferee should have
honestly believed that the ostensible owner is the proper inquiries conducted
by him

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Benami transaction act 1988
 The Benami Transaction means any transaction in which property by
another person for a Consideration paid or provided by another person.

 The Act provides that where a property is transferred Benami the person, in
whose name the property is held, shall become real owner.

 Benami Transition Act, 1988 is not of retrospective operation.

 It cannot be made applicable to suits or proceedings which already started

before commencement of the Act and, in such cases Benami cannot be
treated a real owner.

 In respect of Benami transaction entered into after commencement of this

act, no person is now allowed to take plea under section 41 of the transfer of
property act.

Q.3.EXPLAIN CONDITION SUBSEQUENT AND ONDITION

PRECEDENT
Condition subsequent:

 A condition subsequent is that condition which is required to be fulfilled

after the transfer of property has already taken place.
 Therefore, where a condition subsequent has been imposed in transfer, the
interest of the transferee which has already been vested in him is affected by
fulfilment or non-fulfilment.

According to section 29 of transfer of property act:

 a condition subsequent upon the fulfilment of which the second or ulterior

transfer is to take place, must be strictly fulfilment.

Example:
 A transfers a garden to b with a condition that if B cuts down a particular
tree, the garden shall belong to C.
 B has a vested interest in the garden.
 If B cut down several other trees around that specified tree.
 His interest is not divested but soon as he that specified tree, the garden is
divested and now belong to C.
 It cannot be pleaded by a person who takes under a deed that he was not
aware of the condition laid down for ulterior transfer.
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  Where non compliance with condition subsequent was due to duress, it was
held that there would be non- forfeiture and the interest would vest.

Condition precedent:

 A condition precedent is that condition precedes the transfer of property.

 It is prior to the transfer.

 Where the terms of a transfer of property impose a condition to be fulfilled

before a person can take an interest in the property, the condition is a
condition precedent.

 The transfer is, therefore, dependent on the fulfilment of the precedent.

Example:
 Where A makes a gift of his house to B if B marries C the condition is a
condition precedent.

 Gift in favour of B shall take effect only if B marries c; if he does not do so,
the house cannot be transferred in his favour.

Q.4.EXPLAIN DOCTRAIN OF ELECTON

Doctrine Election:
 Election means choosing of one right between two rights, where there is
clear intention that the rights cannot be enjoyed but only one.
 This doctrine is based on the rule in Cooper v. Cooper. The doctrine of
election is explained in Section 35 of the Transfer of Property Act.

Understanding the principle:

 In simple words, a person utilizing the benefits of an instrument also has to
carry the burden attached.
 This doctoring is universal and is applicable to Hindus Muslims as well as
Christians.
 So, this doctrine contains the principle that the exercise of a choice by a
person left his own free will to do one thing or another birds him to the
choice which he has voluntarily made, and is founded on the equitable
doctrine that he who accepts benefit under an instrument or transaction of
his choice must adopt the whole of it or renounce everything inconsistent it.

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  Thus, it is a general rule that a person cannot approbate and reprobate held
in Codrington vs. Codrington (1857) 7HL 854 861.

Condition precedent for equity of election:

 Transfer of property by a person who has no right to transfer.
 As a part of the same transaction, he must confer some benefit on the owner
of the property.
 Such owner must elect either to confirm such transfer or to dissent from it.

Case: Codring ton v. Lindsay (1873)8 ch 578

 Doctrine of election is based on the principle of equity that one cannot take
what is beneficial to him and disapprove that which is against him under the
same instrument.
 One cannot approbate and reprobate at the same time.
 In simple words, where a person takes some benefit under a deed or
instrument, he must also bear its burden.

Example:
 by a deed A gives to B a house belonging to C, and by the same instrument
gives other property belonging himself to C.
 C is entitled to A's property only upon the connection of C's conforming to
all the provisions of the instrument by renouncing the right his own property
given in favour of B;
 he must consequently make his choice, or as it is technically termed "he is
put to his election, to take either under or against the instrument.
 If C elects to take under the instrument, he must relinquish in favour of B
his property given to B by A: and takes the property which is given to him
by A.

Case: Cooper v. Cooper (1874) LR 7 HL 53

 there is an obligation on him who tukes a benefit under a will or other
instrument to give full effect to that instrument under which he takes a
benefit:
 and if it be found that instrument purports to deal with something which it
was beyond the power of the donor or settler to dispose of
 but to which effect can be given by the concurrence of him who receives a
bane fit under the same instrument,
 the low will impose on him who takes the benefit the obligation of carrying
the instrument into full and complete force and effect.

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Essential condition for doctrine of election:
1) The transferor should dispose of the property in which he has no right
to transfer: In the example B the real owner, but A is the one (the
transferor) who has got no right to transfer but is willing to sell B's property
to C B is not the one who wanted to transfer the property to C but it is A, the
transferor who is neither the real owner nor he has got any such rights of
transfer, but will transfer the property to C.

2) The transferor must confer a benefit to the real owner of the property:
A (the transferor), when he is willing to transfer the property to C, tells B
that your property is of Rs. 20,000 but I will give you a gift of Rs 30,000 if
you give your property (and A will transfer t to C.)

 Both the benefits conferred and the transfer mode must be part of the
same transaction or document: This doctrine only applicable when
transfer and benefit a part form the same transaction which means the
benefit and transaction are interdependent and inseparable. In the exanpla
everything (transfer of property benefit) was covered under the same
transaction between A B and C.
 The owner is now given a choice of election either to accept the benefit
and allow the transfer or to reject both: If B allows A to transfer the
property to C, then B gets the benefit of Rs 30,000, C gets the property of B
and A gets whatever he had demanded of C or else B gets nothing.

Q.5. EXPLAIN ESTOPPEL.

 Estoppels is a rule of evidence which precludes or debars a person from
denying his statement when goes against him.

 Section 43 of the Act is based on the principal of equity has it that if a

person promises to perform more than, he can, he must fulfil his promise
when he acquires the capacity to do so.

Provisions of section 43 enacts that

 if a person professes to transfer an immovable property by fraudulent or,

erroneously representing that he has authority to do so, and

 the transfer is for consideration, and

 Such transferor acquires the authority subsequently, and then the transferee
may compel the transferor to pass on the property to him.

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Conditions for the applicability of this section

 The transferor is an unauthorized person.

 There is fraudulent or erroneous representation by transferor regarding his

right to transfer,

 The transfer is for consideration.

 The transferor subsequently acquires the authority for the transfer.

Option of the transferee:

 Under section 43, the property does not pass on automatically to the
transferee.

 if the essential conditions for the application of this section are fulfilled, the
transferee may compel the transferor to pass on the title to him.

 Thus, the transfer of subsequently acquired property takes place not at the
moment when the interest is acquired but, when transferee exercises the
option and claims that the interest should now be transferred to him.

 However, if the transferee repudiates the contract before unauthorized

transferor acquires authority to transfer, his option is extinguished.
Although, in such a case, if the transferor acquires the title subsequently, the
transferee cannot get the benefit of this section.

Rights of the second transferees where the second transferee:

1. in good faith, has

2. paid consideration and

3. without notice of the option

4. takes the property before option exercised,

Then, He shall not be affected by the first transferee's claim under section 43.

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 UNIT: 3

Q.1. DIFINE SALE.

According to section 54 of transfer of property act

 Sale is a transfer of ownership in exchange for a price paid or promised or
part-paid and part-promised.
 Delivery of tangible immovable property takes place when the seller places
the buyer or such person as he directs, in possession of the property.

Elements of constitute a sale:

1. Transfer of ownership: Sale is a transfer of ownership. Ownership means

bundle of all the rights and liabilities of property. So nothing less than
ownership or absolute interest may be transferred by way of sale.

2. Money Consideration: The ownership in the property must be transferred

in exchange of money only. The money in exchange of ownership is called
‘price’.

Q.2. DISCUSS SELIER’S DUTIES BEFORE AND AFTER SALE.

Seller’s Duties (Liabilities) before the Sale:

Before the sale is completed, the seller’s duties are as under:

1. Disclosure of material defects: sec. 55 (1) (a): Before completion of

sale, the seller is bound to disclose to the buyers any latent material
defect in the property or any defect in his own title.

2. Production of title-deeds: sec. 55 (1) (b): The duty of the seller is to

produce the title-deeds of the property within reasonable time for
inspection only if buyer demands it for his satisfaction.

3. Answer relevant questions as to title: sec. 55(1)(c) : The seller’s next

duty is to answer all the questions put by the buyer which are relevant for
passing of the title. The questions regarding title may be regarding
identity of the property.

4. Duty to execute conveyance: sec. 55 (1) (d): The seller’s next duty is to
execute the conveyance i.e. he has to affect the transfer of ownership.

18
 This is done by signing or affixing thumb impression on the sale-deed by
the seller.

5. Care of property and title-deeds : sec. 55(1)(e) : After execution of the

conveyance, between the date of contract of sale and transfer of
possession to buyer, the duty of the seller is to take care of the property
and the documents of title which are to be handed over to the buyer after
the sale.

6. Payment of outgoings: sec. (55) (g): Outgoings of the property are

Government dues or public charges such as revenue, taxes or rents etc.
due on the property.

Seller’s Duties (Liabilities) after the Sale:

After the sale is completed, the seller’s duties are as under:

1. Giving possession of property: sec. 55(1) (f): On being required by the

buyer the seller has a duty to give possession of the property to buyer or
to such person as he directs.

2. Covenant for title: sec. 55(2): When a person contracts to sell his
property, it is implied that he must be owner of that property otherwise he
would not have attempted to sell it.

3. Delivery of title-deeds. sec.55(3): Although as a general rule the title-

deed must be delivered to the buyer after completion of the sale yet, the
seller may retain them with him till payment of the whole price. But, after
payment of the full price, the seller is liable to deliver all the relevant
title-deeds to buyer.

Q.3. DISCUSS SELIER’S RIGHTS BEFORE AND AFTER SALE.

 Seller’s Rights before sale: sec. 55 (4) (a):

 Before completion of sale, the seller is entitled to all the rents, profits or
other beneficial interest of the property.

 Where the buyer takes possession of the property before completion of

sale, the seller has right to realize interest on unpaid purchase money.

 The buyer would not be allowed to have both the benefits namely,
taking the rents and profits of the property as well as keeping the price
unpaid.
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 Seller’s right after sale:

Seller’s lien or charge : sec. 55(4)(b) :

 After completion of sale, if the price or any of it remains unpaid, the

seller acquires a lien or charge on the property.

 Under section 55 (4) (b) the seller is given a right to recover the unpaid
purchase money from out of the property. This is called as a statutory
charge of the seller for unpaid price.

 In a charge, there is creation of right of payment out of the property

specified.

 Since under this right a seller is not entitled to retain the possession, the
charge is said to be a non-possession lien.

 In absence of an acknowledgement, statutory charge under section

55(4)(b) cannot be claimed after the expiry of twelve years.

 Where the property has been sold to several purchasers, the seller has a
charge on the whole property for unpaid price without having any
regard as to the proportion of money to be paid by each purchaser

Interest on Unpaid Price:

 Seller’s unpaid price is like a debt and therefore he is entitled to claim not
only the unpaid part of the purchase-money but also interest on such amount
from the date on which possession was delivered.

Transfer of sellers charge:

 A charge created in favour of the vendor is an unsecured money debt that is

kind of an actionable claim which is transferable.

Exclusion of the Charge:

 In India the charge is statutory charge. It is created by enacted law and it

can be waived or excluded only in manner indicated by law i.e. by a
contract to contrary which may either be express or implied.

20
Q.4. DISCUSS BUYER’S RIGHTS BEFORE AND AFTER SALE.

 Buyer’s rights before sale,

Buyer’s Charge: Sec.55 (6) (b):

 Before completion of sale, buyer has a charge on the property for any sum
money which he had paid towards price or as an advance.

 It is also to be noted that purchaser’s charge under section 55(6)(b) is a

statutory charge and differs from a contractual charge which buyer may be
entitled to claim under separate contract.

 The charge under this sub-section is enforceable not only against the seller
but also against all the persons claiming under him.

 Enforcement of this statutory charge is not subject to doctrine of notice.

Plea of want of notice on the part of such third person would not be
accepted by Court.

Case: Delhi Dev. Authority vs. Skipper construction Co. (p) Ltd.,

 the Supreme Court, held that if the immovable property is charged and is
converted into another property or money,

 Then the charge will fasten on the property or money into which the
subject matter of the agreement is converted.

 Buyer’s rights after sale,

 After completion of sale, the buyer becomes owner of the property and
therefore is entitled to get all the benefits arising out of that property like
rents, profits or produce or any other beneficial interest from the date of
transfer of ownership.

Q.5. DISCUSS DOCTRAINE OF PART-PERFORMANCE.

 Doctrine of part-performance is an equitable doctrine or say ‘equity of
part-performance’.

 Under this doctrine, if a person has taken possession of an immovable

property on the basis of a contract of sale and has either performed or, is
willing to perform his part of contract then, he would not be ejected from

21
 the property on the ground that the sale was unregistered and legal title had
not been transferred to him.

 As per section 53-A of the Transfer of Property Act, the agreement for
part-performance must be in written form.

According to section 53-A of transfer of property act:

 Where a person contracts to transfer an immovable property for

consideration, and

 acting in furtherance of this contract, the transferee has taken possession

over a part or whole of property, and

 such transferee has either performed his part of contract or is willing to

perform it;

 Then although the contract is unregistered or the transfer is not made as

prescribed by law, the transferor or any other person cannot dispossess
the transferee.

Essential Conditions for Application of Section 53-A:

1. There is contract for the transfer of an immovable property.

2. The transferee takes possession of the property under this contract.

3. The transferee has either performed his part of contract or is willing to

perform the same.

Q.6. DISCUSS DOCTRAINE OF LIS PENDENS.

Section 52 deals with doctrine of lis pendens:

 ‘Lis’ means ‘litigation’ and ‘pendens’ means ‘pending’ so it means

‘pending litigation’.

 Under this doctrine, the principal is that during pendency of any suit
regarding title of a property, any new interest in respect of that property
should not be created.

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The doctrine of lis pendens as laid down in section 52 is as follows:

 During the pendency of a suit or proceeding.

 property cannot be transferred or otherwise dealt with, and

 If so transferred, the transferee is bound by the decision of the court whether

or not he had notice of the suit or proceeding.

Following conditions are essential for the application of the doctrine of lis
pendens as provided in section 52:

 There is a pendency of a suit or proceeding.

 The suit or proceeding must be pending in a court of competent jurisdiction.

 A right to immovable property is directly and specifically involved in the

suit.

 The suit or proceeding must not be collusive.

 The property in dispute must be transferred or otherwise dealt with by any

party to suit.

 The transfer must affect the rights of the other party to litigation.

Q.7. DISCUSS FRAUDULENT TRANSFER.

Section 53(1) provides:

 Transfer of an immovable property,

 made with intent to defeat or delay the creditors of the transferor,

 Shall be voidable at the option of the creditor so defeated or delayed.

Provisions of this sub-section shall not affect:

 The rights of a subsequent transferee in good faith, for consideration, and

 Any law for the time being in force relating to insolvency.

23
The essential conditions for the applicability of section 53 (1) are:

 There is transfer of immovable property.

 The transfer is fraudulent i.e. made with intent to defeat or delay the
creditors of the transferor.

Q.8. DIFFRENCE BETWEEN:

 Sale & Exchange

SALE
Sale is transfer of ownership in a
property in exchange of price which is
the money consideration.
In sale, the consideration is always
money.
EXCHANGE
On the other hand, exchange is transfer
of ownership in a property in exchange
of ownership of another property.
In exchange, the consideration is
another property or, anything of value.

 Sale and contract of sale:

SALE CONTRACT OF SALE

“Sale” is transfer of ownership in
exchange for a price paid or promised
or part-paid and part-promised.
In every sale, there is preceding
contract of sale.
A contract for sale of immovable
property is a contract that a sale of
such property shall take place on terms
settled between the parties.
Sale is completed in furtherance of
every contract of sale.

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 UNIT: 4

Q.1. DISCUSS: MORTGAGE, KINDS OF MORTGAGE, RIGHTS

OF MORTGAGEE

According to section 58(a):

 “A mortgage is the transfer of an interest in specific immovable property for

the purpose of securing the ‘payment of money advanced or to be advanced
by way of loan, an existing or future debt or the performance of an
engagement which may give rise to pecuniary (monetary) liability.”

 The transferor is called a mortgagor, the transferee, a mortgagee.

 The principal money and interest of which payment is secured for the time
being are called the mortgage money, and

 The instrument (if any) by which the transfer is effected is called a

mortgage-deed.

Kinds of mortgage:

1. Simple Mortgage:

 That the mortgagor must have bound himself personally to repay the loan.

 That to secure the loan he has transferred to the mortgagee the right to have
the specific immovable property sold in the event of his having failed to
repay.

 That the possession of the property is not delivered to the lender.

2. Mortgage by Conditional Sale:

 on the condition that on default of payment of the mortgage money (loan)

on a certain date the sale shall become absolute or

 on condition that on such payment being made the sale shall become void
or,

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 on the condition that in such payment being made the buyer shall transfer
the property to the seller,

3. Unsufructuary Mortgage:

 That the possession of the property is delivered to the mortgagee;

 That the mortgagee is to get rents and profits in lieu of the interest or
principal or both;

 That no personal liability is incurred by the mortgagor and

 The mortgagee cannot foreclose or sue for sale.

 That no time limit can be fixed expressly during which the mortgage is to
subsist.

4. English Mortgage:

 That the mortgagor should bind himself to repay the mortgage money/loan
on a certain day;

 That the mortgaged property should be transferred absolutely to the

mortgagee ; and

 That such absolute transfer should be made subject to a proviso that the
mortgagee will recover the property to the mortgagor, upon the payment by
him of the mortgage money on the appointed day.

5. Mortgage by Deposit of Title Deeds:

In England and popularly in India, this mortgage is called the equitable

mortgage. Under the definition under Section 58 (f) of Transfer of Property
Act, 1882, the essential requisites of such mortgage are:

 a debt should be there

 deposit of the title deed with the lender (most essential)

26
  Said deposit is with intention that the said title deed shall be security for the
debt.

6. Anomalous Mortgage:

 A mortgage which is not a simple mortgage, a mortgage by conditional

sale, an Unsufructuary, an English mortgage or a mortgage by deposit of
title deeds within the meaning of Section 58 of Transfer of Property Act is
an Anomalous mortgage.

The rights of mortgagees:

 the right to transfer his or her interest to a third party

 the right to sue the mortgagor personally if the mortgagor is in default under
the mortgagor's "personal covenant" to pay the debt (rather than the
mortgagor enforcing the security under the mortgage by taking possession
of or selling the property)

 the right to enter into possession of the property or to exercise the power of
sale if the mortgagor defaults in making the necessary payments under the
mortgage

 the right to sub-mortgage

Q.2. DISCUSS: EQUITY OF REDEMPTION.

 In England, the mortgagor’s right of redemption was introduced by the

Chancery Courts which were the Courts of Equity.

 At common law in England, mortgage was transfer of legal estate subject to

a condition that non-payment of debt on fixed date will result into transfer of
mortgaged property absolutely to mortgagee.

 The common law gave no relief to those mortgagors who failed to repay
loan within a fixed date.

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  Sometimes money-lenders themselves used to cause delay in repayment by
mortgagor and used to avoid accepting the money within the due date in
order to exploit the provision of the common law as well as the financial
hardship of the debtors.

 They knew that if somehow the loan with interest remained unpaid upto
fixed date, they would become owner of the property in lieu of the small
sum of money which debtor took in his urgent need and extreme
helplessness

 The Courts of Equity realized that the main purpose of affecting a mortgage
was to give security to the money-lender for repayment of his money.

 Therefore, the money-lender for repayment should not be given any legal
right to hold on the property absolutely if mortgagor is ready to play within
reasonable time after expiry of the due date.

Q.3. DISCUSS: FORECLOSURE.

According to section67 of transfer of property act:

 In the absence of a contract to the contrary, the mortgagee has, at any time
after the mortgage –money has become due to him, and
 before a decree has been made for the redemption of the mortgaged
property, or
 the mortgaged –money has been paid or deposited as hereinafter provided,
right to obtain from the court a decree that the mortgagor shall be absolutely
debarred of his right to redeem the property,
 Or a decree that the property be sold.

 A suit to obtain a decree that a mortgagor shall be absolutely debarred of his

right to redeem the mortgaged property is called a suit for foreclosure.
 The right of foreclosure or sale arises when the mortgage-money becomes
due.
 Section 67 provides following two remedies to a mortgagee :
1) Foreclosure,
2) Sale.
These two remedies are available to the mortgage in different forms of mortgage.

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  Section 67(d) prohibits partial foreclosure or sale. Reason behind
prohibition on partial foreclosure is to provide protection to the
mortgagor from multiplicity of suits being filed by several mortgagees
separately.

UNIT: 4

Q.1. DISCUSS: LEASE, RIGHT AND DUTIES OF LASSOR AND

LESSEE, PROVISION RELATING TO DURATION OF LEASE.

According to section 105 of transfer of property act:

 Lease is a transfer of ‘right of enjoyment’ of an immovable property made

for a certain period,

 In consideration of a price paid or promised to be paid or, money, share of

crops, service or any other thing of value to be given periodically or on
specified occasions to the transferor by transferee.

 Lease is not transfer of ownership in the property; it is transfer of interest in

an immovable property.

 The transferor is called the lessor, the transferee is called the lessee,

 The price is called the premium, and the money, share, service or other thing
to be so rendered is called the rent.

Liabilities of lessor:
1) Duty to Disclosure Section 108(m): Clause (a) provides that the lessor is
bound to disclose to the lessee any material defect in the property with
reference to its intended use of which the lessor is aware but the lessee is not
aware.

2) To Give Possession Section 108(m) : The lessor is under a duty, on the

lessee’s request, to put him n possession of the property.
29
 3) Covenant for Quiet Enjoyment Section 108(m): The clause provides that
if the lessee pays rent reserved by the lease and performs the contract
binding on him he may hold the property during the time limited by the
lease without interruption

Rights of lessor:

1) Right to Accretions Sec. 108 (d): If during the continuance of a lease any
accretion, accession or addition is made to property given by way of leases
such accretion, accession or addition shall be deemed to be comprised in the
original lease.

2) To Avoid Lease Section 108(e): In the case of the destruction of the

subject-matter of lease, the lessee, if he is not to be blamed for such
destruction, could avoid the lease at his option.

3) To Charge for Repair Section 108 (f): This clause provides that If the
lessor neglects to make any repairs which he is bound to make to the
property after notice within a reasonable time , the lessee may make the
repair himself and deduct the expense of such repairs with interest from the
rent or otherwise recover it from the lessor.

4) Right to Make Payments Section 108(g): This clause provides that if

lessor neglects to make any payment which he is bound to make and which
if not made by him, is recoverable from the lessee or against the property ,
the lessee may make such payment himself and deduct it with interest from
rent or ise recover it from the lessor.

5) Right to have benefit of Crops Section 108(g): When a lease is of

uncertain duration and the interest of the lessee is determined otherwise than
his fault, the lessee is entitled to the benefit of all crops growing, planted or
sown by him.

30
Liabilities of lessee:
1) Duty to pay rent Section 108(1): A lessee is under a duty or obligation to
pay or tender the premium or rent to the lessor or his agent at proper time
place.
2) Duty to maintain the property Section 108(m): The lessee is bound to
keep on the termination of lease to restore the property in as good condition
as it was when he was put into possession.

3) Duty to Give Notice [Section 108(n): If the lessee becomes aware that any
person has initiated any proceeding to recover whole or any part of the
property, or has encroached upon it or has interfered with the right of the
lessor, he must bring such a fact to the knowledge of the lessor.

4) Duty not to erect permanent Structure Section 108(p): A lessee is under

a duty not to erect any permanent structure on the property except for
agricultural purposes or without the consent of the lessor.

5) Duty to restore possession Section 108(q) : This clause provides that on

determination of lease the lessee is bound to put the lessor into the
possession of the property.

Provisions relating to duration of lease:

 The right of enjoyment must be given to the lessee for a certain period of
time.

 The period for which the right to use the property is transferred is called
‘term’ of the lease.

 The term may be any period of time, longer or shorter, even for perpetuity
but it must be specified in the deed.

 The time from which the right of enjoyment begins and the time when it
ends must be fixed and ascertainable.

31
  The lease may commence immediately after execution of deed or, may
commence with effect from specified future date. The date of
commencement may also depend upon on some future events.

 The extent of period during which a lease may remain effective may be
perpetuity. Such leases are termed as leases in perpetuity or permanent
leases.

Q.2. DISCUSS: TRANSFER OF ACTIONABLE CLAIM.

According to section 130 of transfer of property act:

 The transfer of an actionable claim whether with or without consideration

shall be effected only by the execution of an instrument in writing signed by
the transferor or

 his duly authorized agent, shall be complete and effectual upon the
execution of such instrument, and thereupon all rights and remedies of the
transfer or,

 Whether by way of damages or otherwise, shall vest in the transferee,

whether such notice of the transfer as is hereinafter provided be given or not.

 Provided that every dealing with debt or other actionable claim by the debtor
or other person from or against whom the transfer or

 Would, but for such instrument of transfer as aforesaid, have been entitled
to recover or enforce such debt or other actionable claim, shall be valid as
against such transfer.

 The transferee of an actionable claim may, upon the execution of such

instrument of transfer as aforesaid, sue or institute proceedings for the same
in his own name without obtaining the transferor’s consent to such suit or
proceedings and without making him a party thereto.

32
 Exception

 Nothing in this section applies to the transfer of a marine or fire policy of

insurance, or

 Effects the provisions of section 38 of the Insurance Act, 1938.

Illustration

 A owes money to B, who transfers the debt to C.

 B then demands the debt from A, who, not having received notice of the
transfer, as prescribed in section 131, pays B.

 The payment is valid, and C cannot sue A for the debt.

Q.3. DISCUSS: SUBROGATION.

 Subrogation means substitution.

 Any person, other than mortgagor or co mortgagor, who having interest in
the mortgaged property and who redeems the mortgage, is entitled to be
substituted in place of mortgage.

Section 92 provides for two kinds of subrogation:

 Legal subrogation:
 Legal subrogation is based on the equitable principal of re-imbursement.
When a person is interested in making some payment which another person
is legally bound to pay them, such person must be re-imbrued.
 Under section 92 legal subrogation may be claimed by following persons

1) Puisne mortgagee: Where the same property is mortgaged successively in

favour of several persons, all such persons are entitled to redeem their
respective prior mortgage by making payments.
2) Co-mortgagor: Co-mortgagor is co-debtor who is a sharer in the debt
secured by a mortgage and his property is a part of whole mortgaged
property. Therefore, he is liable only to the extent of his own share of debt.

33
 3) Surety: In a mortgage, there may be a person who stands as surety for
repayment of loan in case mortgagor fails to do so. Such surety is entitled to
redeem the mortgage under section 91.

4) Purchaser of equity of redemption :

 Equity of redemption is regarded as ‘property’ of mortgagor which he
may assign or sell. The purchaser of such equity of redemption becomes
‘owner’ of this property in place of seller.
 The confusion which used to arise whether he shall be treated as
mortgagor or not, was removed by the Courts by introducing principal of
intention.
 It has been laid down by the courts that in such case the intention of the
purchaser of the equity of redemption is simply to keep the mortgage
alive.

 Conventional Subrogation :
 Conventional subrogation takes place when a person being stranger to
mortgage, advances money to the mortgagor under an agreement that he
would be subrogated to the rights of the mortgagee if mortgagor redeems
the mortgage from such money.
 It is necessary that when the stranger advances the money, there is an
agreement between him and the mortgagor that when the debt is paid off
from that money, such stranger would be subrogated in place of
mortgagee.
 The provision regarding conventional subrogation requires that such
agreement must be in writing and registered.

Q.4. DIFRENCE BETWEEN: LEASE AND LICENSE.

LEASE LICENSE.
Lease is transfer of the right of License is the right of a person to use
enjoyment in an immovable property. the land of another while it remains in
possession of the latter.
In lease the transferee (lessee) gets a License, is a personal right of the person
proprietary right in respect the land. using the land of another person. The
This proprietary right is called demise or right of the licensee is in the nature of a
the lease hold estate. permission to do or continue to do
certain things on another’s land. It is

34

Being a proprietary right, lease is
transferable interest.
Lessee is entitled to maintain action
against any trespasser
Lease cannot be revoked before expiry
of the term and without breach of any
express condition by the lessee.
therefore, personal right.
License being personal right lease is a
transferable and cannot be assigned to a
third party.
Licensee cannot take action against the
trespasser.
subject to certain exceptions, a license is
generally revocable.

UNIT: 6
Q.1. DIFINE EASEMENT, CHARACTERISTICS OF
EASEMENT
 An easement is a legal right to occupy or use another person’s land for
specific purposes.

 The use of the land is limited, and the original owner retains legal title of the
land.

 A legally binding easement must be made in writing, the exact location

stipulated in the property’s deed.

According to section 4 of the Indian easement act 1882:

 An easement is a right which the owner or occupier of certain land

possesses, as such, for the beneficial enjoyment of that land,

 to do and continue to do something, or to prevent and continue to prevent

something being done, in or upon, or in respect of certain other land not his
own.

Kinds of easement:

Section 5 of the Indian Easement Act, defines different kinds of easements

 A continuous easement: A continuous easement is one whose enjoyment is

or may continual without act of man.

35
  A discontinuous easement: A discontinuous easement is one that needs the
act of man for its enjoyment.

 An apparent easement: An apparent easement is one the existence of

which is shown by some permanent sign, which, upon careful inspector by a
competent person, would be visible to him.

 A non-apparent easement: A non-apparent easement is one that has no

such sign.

Essentials of an easement:

1) There must be an owner or occupier of certain land.

2) There must be a right vested in such owner or occupier to do and continue to

do something, or to prevent and continue to prevent something done in, or
upon, or in respect of, some other land.

3) The right must be for the beneficial enjoyment of his land. Thus, if the right
is not in any way connected with enjoyment of the dominant tenement it
cannot be an easement.

4) The other land in or upon which the right to be exercised, must not be owned
or occupied by him, but by some other person.

Characteristics of an easement:
1) There must be dominant and servient tenement.

2) The right of easement must be possessed for the beneficial requirement of

the dominant tenements.

3) Dominant and Servient owners must be different persons.

4) The right should entitle the dominant owner to do and to continue to do

something or to prevent and continue to prevent something being done, in or
upon or in respect of the servient tenement.

5) That something must be of certain or well defined character and must be

capable of forming the subject-matter of a grant.

36
Q.2. DEFINE GIFT, PROVISION OF GIFT, ESSENTIALS OF
GIFT.
According to section 122 of transfer of property act:

 “Gift” is the transfer of certain existing movable or immovable

property made voluntarily and without consideration,

 by one person, called the donor, to another, called the done, and
accepted by or on behalf of the donee.

 Acceptance of Gift may be made during the lifetime of the donor

and while he is still capable of giving.

 If the done dies before acceptance, the gift is void.

The essential elements of valid gift are given below:

1) Transfer of ownership:
 Gift is transfer of ownership.

 The donor must intend to pass on all the rights and liabilities in respect of
property to donee.

2) Existing property:
The property may be of any kind but two conditions are necessary.

 Firstly, the property must be in existence at the date of making of the gift.
Gift of future property is void.

 Secondly, the property must be transferable within the meaning of section

5 of the Transfer of Property Act.

 Gift of Specs-succession or mere chance of inheriting property or mere

right to sue, is void.

3) No consideration:
 An essential condition of a gift is that it must be gratuitous.

 Ownership must be transferred without any consideration.

37
  The value of consideration is immaterial.

4) Voluntarily:
 The donor must make the gift voluntarily. ‘Voluntarily’ here means that
the donor has made the gift in exercise of his own free will and consent is
a free consent.

 His consent is free when he has complete freedom of making the gift
without any force, fraud, coercion, or undue influence.

 The burden of proving that the gift was made voluntarily with free
consent of the donor lies on the donee.

5) Acceptance of Gift:
 Gift must be accepted by the donee.

 Property cannot be given to a person even in gift against his consent.

 The donee may refuse the offer of gift of such properties.

 Acceptance of the gift is , therefore, necessary.

Provisions of Gifts under Transfer of Property Act:

1) Modes of making Gift (Section 123) : For the purpose of making a gift of
immovable property, the transfer must be effected by a registered instrument
signed by or on behalf of the donor, and attested by at least two witnesses.

2) A gift comprising both existing and future property is void as to the

latter. (Section 124) : This section makes it clear that gift of future property
is void. Where a gift is made comprising two properties of which one is
existing at the date of gift but the other is not, the whole gift is not void.
Only that part of the gift is void which relates to future property.

3) Acceptance of gift from all donee is essential (Section 125) : This section
provides that where a gift is made to several donee of whom any one donee
does not accept the gift, the gift on his part only is void and gift in favour of
other donee stands valid.

38
 4) Suspension and revocation of Gifts (Section 126): Donor and donee may
agree that the gift shall be suspended or revoked upon the happening of an
event not dependent on the will of the donor.

5) Onerous Gift: (Section 127 ): When a gift is in the form of a single transfer
to the same person of several things of which one is, and the others are not,
burdened by an obligation, the donee can take nothing by the gift unless he
accepts it fully.

6) Universal Donee : (Section 128): The two gifts on which the provisions of
this Act are not applicable are Muslim gifts (Hiba) and gifts of movable
properties made in contemplation of death.

Q.3. DEFINE EXCHANGE

According to section 118 of transfer of property Act:

 Where two persons mutually transfers the ownership of one thing
for the ownership of another,
 Neither thing nor both things being money only, the transaction
called an “exchange”.

The characteristic features of exchange are as under:

1. Transaction of Ownership: Exchange is transfer of ownership in some

existing property. The ownership of one party must be exclusive of the
other; therefore, when partition is affected it is not an exchange.

2. Properties need not be immovable: Both properties which are the subject-
matter of exchange need not be immovable. Ownership in immovable
property may be transferred in return of ownership in immovable property
and vice-versa.

3. Exchange includes barter : Transfer of ownership in some movable

property in consideration of transfer of ownership in another movable
property is technically called barter which is also included in the definition
of the exchange.

39
 4. Mode of transfer: An exchange can only be made in the manner in which a
sale is affected. Where both properties are movable, exchange may be
affected by delivery of possession; registration is not compulsory. If the
properties are immovable and are of the value exceeding Rs.100, registration
of the document is compulsory.

NOTE : revision purpose only, kindly prefer book also

ALL THE BEST

PAST PAPER SOLUSTION, PREFER WHOLE SYLLBUS

40
 FAMILY LAW
Examination notes
Q.1. DISCUSS VARIOUS SOURCE OF HINDU LAW

 The Hindu law is credited to be the most ancient law system which is
approximately 6000 years old.
 It is believed to be a divine law as it is said to be revealed to the people by
god through Vedas.

The sources of Hindu Law can be kept under two headings:-

1. Ancient or original sources: According to Manu there are four sources of

Hindu Law as per following details, in addition to these four there was also
that what is agreeable to one’s conscience such as Shruti, Smriti, Digest and
Commentaries, Custom and Usages.
2. Modern Sources: Following are the modern sources of Hindu Law such as
Equity, justice and good conscience, Precedent, Legislation.

 ANCIENT SOURCES

1. SHRUTI:-
 The name “Shruti” is derived from the word “sru” which means to hear
and it signifies what is heard.
 Shruties are considered as the primary and paramount source of Hindu
Law.
 The Shruti consist of the four Vedas and Upanishads dealing with the
religious rites that contain the meaning of attaining true knowledge and
moksh as salvation.

2. SMRITIS :-
 smritis Means, “What was remembered” thus smritis were Smritis is
known as golden era,
 Because it is era when well organised dependant on the remembrance of
saints and the era of creation of and serial wise development of Hindu
Law started.
 It is of two types first are prose style and the other is of poetry style.

41
  Smritis are divided into two : a. Dharam Surtra:- Dharam sutra are
famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.
b. Dharam Shashtra:- Are famous for Manu Smriti, Yagyavalkya Smriti,
Narad Smriti etc.
 Manu smritis made of 12 chapters and 2694 shlokas.
 Yagyavalkya smriti is divided into 3 parts and is extremely clear, brief
and organised.
 Narad Smriti being the last smiriti is such first legal code which
mentions subjects related to Judicial process, courts and Judiciary.
3. Digest and Commentaries:-
 The commentaries through professing and purporting the rest on the
smritis explains modified and enlarged tradition recorded there to bring
them into harmony and accordingly to prevent practices of the day.
 Digest writers and commenter’s has given the statements of Smritis
which can fulfil the present requirements & ahead from smritis.
4. Custom and uses:
 Narad Smriti says that, “Customs are powerful” they are above the
religion.
 D.F.Mulla says that, “Among the three sources of Hindu Law Custom
and Usage are the one.”
 According to Holland, “Custom is a step of generally followed conducts
as a way is created over gress by repeated walking similarly custom is
created in accordance to the conduct of everyday life.”
 In Collector of Madurai v. Mottaramlingam –1868: Privy Council held
that in Hindu Law the clear proof of customs shall be more relevant then
the basic epics of law.”
 Similarly in Harparsad v. Shiv Daya -1816: It was said that, “the
custom is family or particular class or area owing to a long tradition.”

 MORDEN SOURCES
1. EQUITY, JUSTICE AND GOOD CONSCIENCE:
 In India the origin of equity is traced the Hindu period when jurists
explained the old law and gave new rules of interpretation and equitable
solutions in cases of conflict between the rules of various laws.
2. LEGISLATION:
 The last important source of Hindu Law is the legislation.
 Their source has originated after the establishment of English State in
India, when English rulers started enacting several laws.
 Laws were enacted in accordance to the state, time and circumstances,
there were amended too.

42
3. JUDICIAL DECISION:
 Judicial decisions pronounced by the courts upon various points have
also developed as a source of law.
 All the important points of Hindu Law are found in law reports
 The law reports presented by the courts have assumed greater importance
than the commentaries.
 The decisions of Privy Council and Supreme Court are binding on all the
courts including High Courts.

Q.2 WHO CAN BE KARTA IN HINDU JOINT FAMILY?

DESCRIBE VARIOUS POWERS OF KARTA
Karta
 In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very
important position. There is no office or institution in any other system of
the world can be compared with it. He is a person with limited power but he
possesses such vast power within ambit of joint family which nobody
enjoys.

Who is a Karta?
 Karta means manager of joint family and joint family properties. He is the
person who takes care of day to day expenses of the family looks after the
family and protects the joint family properties.

Who can be a Karta?

 It is a presumption that ordinarily senior most male member is the Karta and
Karta is always a member in the family no outsider or stranger can become a
Karta.
 The senior most male member so long as he is alive may be, aged, infirm or
ailing continues as Karta. By his death Karta ship will pass on to next senior
most male member.
 In the presence of senior most male member a junior cannot act as Karta but
if all coparcener agree, a junior also can become a Karta.
 Karta owes his position by consent or agreement of all coparceners.

Female Member:
 Generally female member cannot become Karta but in exceptional
circumstances female also can act as Karta.
 Nagpur High Court held the view that mother even though not a coparcener,
in the absence of adult male member can act as Karta.
 In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme
Court held mother or any female member could not be Karta of joint family
and therefore cannot alienate joint family property.

43
Position of Karta:
 Karta is sui generis (of its own kind) the relationship between him and
members is not like principal or agent or like partners in a partnership firm.
 He is the head of the family and acts on behalf of other members.
 He stands fiduciary relationship with other members but he is not a trustee,
nobody can question what he spent unless charges of misappropriation.
 When any coparcener charges of improper alienations made by Karta,
burden of proof lies on him to prove such are mollified act of Karta.

Powers of Karta:
With in joint family Karta has vast powers with limitations.

1) Power of management: He is the head of the family, his management powers

are absolute. He may manage the family affairs and family property and business
the way he likes for the benefit of estate; no one can question his management.

2) Right to Income: It is general rule that all members who works or do business
out of joint family property must hand over income to Karta. It is for Karta to allot
funds to the members and look after needs and requirements, so long as family
remains joint, no member can ask for any specified share in the income.

3) Right to representation: He represent the family, represents the family in all

matters, legal, social and religious. He can enter into any transaction on behalf of
the family; his acts are binding on the entire joint family.

4) Power to compromise: He has power to compromise all disputes relating to

family property or their management. He can compromise pending suits, family
debts, and other transactions. However if his act is not bonafide can be challenged
in a partition.

5) Power to refer a dispute to arbitration: Karta has power to refer any dispute
to arbitration and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts: Karta has power to

acknowledge on behalf of the family any debt due to the family, also has power to
pay debt or to make pack payment of debt.He has power to contract debts for the
family such debts incurred in the ordinary course of business are binding on entire
joint family.

7) Power to enter into contract: Karta has power to enter into contract and such
contract is enforceable against the family.

44
8) Power of alienation: Nobody in the family has power to alienate joint family
property. However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Q.3. DIFREENCE BETWEEN JOINT FAMILY AND

COPARCENARY

Joint family Coparcenary

Both Males and Females are the Only male member are the members of
members of the joint family Coparcenary.

There is no limitation of degrees or In Coparcenary, Males up to four

generations with regard to the degrees (including senior most male) or
membership of the Joint Family. generations from the senior most male
members are the members of the
Coparcenary.

Some members, i.e. Female members In Coparcenary all members have the
have no right by birth in the property. right in the property by birth.

Certain females like Father’s wife, In Coparcenary all the members have
Mother, Grandmother etc. have no right the right to demand partition.
to demand partition.

The membership of Joint Hindu Family
is acquired by birth or by marriage and
consists of all persons literally
descended from a common ancestor and
their wives and unmarried daughters.
A Coparcenary is, much narrower body
and it includes only those persons who
acquired by birth or in exceptional case
adoption by sons.

Every joint family is not a Coparcenary. Every Joint Family is a Coparcenary.

A Joint Hindu family shall constitute A Coparcenary may come to an end

even after the death of with the death of the last coparcener or
Manager/male/Karta and consisting only sole surviving coparcener.
females.

45
Q.4. DISCUSS THE CHARACTERISTIC OF MITAKSHARA
AND DAYABHAGA COPARCENANY.
Mitakshara Coparcenary:
“A coparcenary under the Mitakshara School is a creation of law and cannot arise
by act of parties except in so far that on adoption the adopted son becomes
coparcener with his adoptive father as regards ancestral properties of the latter.
The incidents of coparcener ship under Mitakshara law are:
1. First, the lineal male descendants of a person up to third generation, acquire
on birth ownership in the ancestral properties of such person;
2. Secondly, that such descendants can at any time work out their rights by
asking for partition;
3. Thirdly, that till partition, each member has got ownership extending over
the entire property conjointly with the rest;
4. Fourthly, that as a result of such co-ownership the possession and enjoyment
of properties is common;
5. Fifthly, no alienation of the property is possible unless it be necessity,
without the concurrence of the coparceners;
6. Sixthly, that the interest of deceased member lapses o his death to
survivors;”

characteristic features of the Mitakshara Coparcenary:

1. Unity of Ownership: The essential feature of a Mitakshara coparcenary

property is unity of ownership, i.e., the ownership of property is not vested in a
single coparcener. It is vested in whole body of coparcenary. According to the
true notion of an undivided family governed by the Mitakshara law, no
individual member of that family whilst it remains undivided can predicate, of
the joint and undivided property, that he has a definite share.

2. In determinability of Shares: The interest of a coparcener in the coparcenary

property is a fluctuating interest which is liable to diminish with the birth and

46
 bound in increase with the death of any coparcener in the family. So long the
family remains united; no individual coparcener can predicate that he has a
definite share in the property of the family.

3. Community of Interest: There is community of interest in the coparcenary

property. The moment a person is born in the family, he acquires an interest in
the coparcenary property in the sense that he has a right of common enjoyment
and common use of all the properties, because as soon as he is born as a son, he
assumes the membership of the community.

4. Exclusion of Females: In Mitakshara coparcenary no female can be its

members, though they are members of joint family. Even the wife who is
entitled to maintenance enjoys only the right to maintenance but she can never
become a coparcener. Thus a female does not have the right to demand
partition. Since she is not a coparcener, she cannot become the Karta of the
family. An alienation of the property of the joint family by her will not be
binding on her sons and daughters. The alienation of her own share is not
binding upon herself.

5. Devolution by Survivorship: One of the distinctive features of coparcenary is

that the coparcenary interest of a coparcener in coparcenary property on his
death does not devolve on his heirs by succession but on the other hand it
passes by survivorship to the other coparceners. Thus right by birth and right of
survivorship are necessary incidents of community of interest and unity of
ownership, which signify joint possession not an exclusive possession.

6. Right of Maintenance: All the members of coparcenary are entitled to

maintenance by birth out of joint family property. They continue to enjoy this
right so long the coparcenary subsists. Where any member fails to get any share
on the coparcenary property even after partition he retains the right of
maintenance.

Dayabhaga Coparcenary:

 According to the Dayabhaga law, the sons do not acquire any interest by
birth in ancestral property.

 Their rights arise for the first time on the father’s death.

47
  On the death they take such of the property as if left by him, whether
separate or ancestral, as heirs and not by survivorship.

 Since the sons do not take any interest in ancestral property in their father’s
lifetime, there can be no coparcenary in the strict sense of the word between
a father and sons according to the Dayabhaga law.

 The father can dispose of ancestral property, whether movable or immovable

by sale, gift, will or otherwise in the same way as he can dispose of his
separate property.

 Since sons do not acquire any interest by birth in ancestral property, they
cannot demand a partition of such property from the father.

 A coparcenary under the Dayabhaga law could thus consist of males as well
as females.

 Every coparcener takes a defined share in the property, and he is owner of

that share.

 It does not fluctuate with birth and deaths in family.

Q.4. DISCUSS THE CONDITION OF VALID HINDU

MARRIAGE AS PER HINDU MARRIAGE ACT 1955

The Hindu Marriage Act 1955 provides for essential conditions for the validity of a
Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights,
Judicial separation, Nullity of Marriage, Divorce etc. (Given in Sections 5- 13
under the topic Marriage)

Essentials of Valid Hindu Marriage

This section lays down five conditions for a valid marriage. They are:

1. Monogamy (Sec 5 Clause (1))

This provision Prohibits bigamy .The marriage should be monogamous. Under the
Hindu Law a person can validly marry if he or she is either unmarried or divorced
or a widow or a widower. If at the time of the performance of the marriage rites
and ceremonies either party has a spouse living or the earlier marriage had not

48
already been set aside, the later marriage is void. A bigamous marriage is null and
void and is made punishable.

2. Mental Capacity (Sec 5 Clause (2))

The parties to the marriage should not suffer from unsoundness of mind, mental
disorder or insanity. In all the cases given in sec 5 clause (2) the party is regarded
as not having the mental capacity to solemnize the marriage. So if a party who
solemnize the marriage is suffer from unsoundness of mind, mental disorder or
insanity, the marriage is voidable at the opinion of the other party.

3. Age to the parties (Sec 5 Clause (3))

At the time of marriage the bridegroom has completed the age of 21 years and the
bride the age of 18 years .If a marriage is solemnized in contravention of this
condition is neither void nor voidable.

4. Degrees of Prohibited relationship (Sec 5 Clause (4))

The parties to the marriage should not come within the degrees of prohibited
relationship. Two persons are said to be within the degrees of prohibited
relationship
 If one is a lineal ascendant of the other; or
 if one was the wife or husband of lineal ascendant or descendant of the
other; or
 if one was the wife of the brother or of the fathers or mothers brother or of
the grandfathers or grandmothers brother of the other; or
 if the two are brother and sister, uncle and niece, aunt and nephew, or
children of brother and sister or of two brothers or of two sisters.

5. Sapinda Relationship (Sec 5 Clause (5))

The parties to the marriage should not be related to each other as Sapindas. A
marriage between sapindas is void.
Under Section 3(f)
 Sapinda relationship with reference to any person extends as far as the third
generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as the
first generation.
 Two persons are said to be sapindas of each other if one is a lineal ascendant
of the other within the limits of "sapinda" relationship, or if they have a
49
 common lineal ascendant that is within the limits of "sapinda" relationship
with reference to each of them.

Q.5. DISCUSS THE CONDITION OF VOID HINDU

MARRIAGE AS PER HINDU MARRIAGE ACT 1955

Void marriages
A marriage may be declared void if it contravenes any of the following:

1. Either party is under age. The bridegroom should be of 21 years of age and the
bride of 18 years.

2. Either party is not of a Hindu religion.Both the bridegroom or the bride should be
of the Hindu religion at the time of marriage.

3. Either party is already married. The Act expressively prohibits polygamy. A

marriage can only be solemnized if neither party has a living spouse at the time of
marriage.

4. The parties are sapindas or within the degree of prohibited relationship.

Q.6. DISCUSS THE CONDITION OF VOIDABLE HINDU

MARRIAGE AS PER HINDU MARRIAGE ACT 1955
Voidable marriages
A marriage may later be voidable (annulled) if it contravenes any of the following:

1. Either party is impotent, unable to consummate the marriage, or otherwise unfit for
the procreation of children.

2. One party did not willingly consent. In order to consent, both parties must be
sound of mind and capable of understanding the implications of marriage. If either
party suffers from a mental disorder or recurrent attacks of insanity or epilepsy,
then that may indicate that consent was not (or could not be) given. Likewise, if
consent was forced or obtained fraudulently, then the marriage may be voidable.

3. The bride was pregnant by another man other then the bridegroom at the time of
the marriage.

50
Q.6. DISCUSS DEVOLATION OF INTEREST IN
CORARCENERY.
Devolution of interest in coparcenary

 On and from the commencement of the Hindu Succession (Amendment)

Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the
daughter of a coparcener shall,- -
1. by birth become a coparcener in her own right in the same manner as
the son;
2. have the same rights in the coparcenary property as she would have
had if she had been a son;
3. be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener: Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.

 Any property to which a female Hindu becomes entitled by virtue of sub-

section (1) shall be held by her with the incidents of coparcenary ownership
and shall be regarded, notwithstanding anything contained in this Act or any
other law for the time being in force in, as property capable of being
disposed of by her by testamentary disposition.

 Where a Hindu dies after the commencement of the Hindu Succession

(Amendment) Act, 2005, his interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,--

1. The daughter is allotted the same share as is allotted to a son;

2. the share of the pre-deceased son or a pre- deceased daughter, as they
would have got had they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased son or of such pre-
deceased daughter; and

51
 3. the share of the pre-deceased child of a pre- deceased son or of a pre-
deceased daughter, as such child would have got had he or she been
alive at the time of the partition, shall be allotted to the child of such
pre-deceased child of the pre- deceased son or a pre-deceased
daughter, as the case may be.

Explanation.
For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.

 After the commencement of the Hindu Succession (Amendment) Act, 2005,

no court shall recognise any right to proceed against a son, grandson or
great-grandson for the recovery of any debt due from his father, grandfather
or great-grandfather solely on the ground of the pious obligation under the
Hindu law, of such son, grandson or great- grandson to discharge any such
debt: Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act, 2005, nothing
contained in this sub-section shall affect –

1. The right of any creditor to proceed against the son, grandson or
great- grandson, as the case may be; or
2. any alienation made in respect of or in satisfaction of, any such debt,
and any such right or alienation shall be enforceable under the rule of
pious obligation in the same manner and to the same extent as it
would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted. Explanation.--For the
purposes of clause (a), the expression "son", "grandson" or "great-
grandson" shall be deemed to refer to the son, grandson or great-
grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005.

 Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004.

Explanation.
For the purposes of this section "partition" means any partition made by execution
of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court."

Q.7. DISCUSS SUCCESSION OF PROPERTY OF HINDU

52
 FEMALE DYING INTESTSTE

 The great ancient lawgivers Manu and Baudhyana had described the good
woman as a profoundly non-autonomous self, ruled by father in childhood,
by husband in youth, by son in old age.
 In the 19th century debates, on the contrary, she came to be re-envisaged as
a person with a core of inviolate autonomy, possessing a cluster of
entitlements and immunities, even when the family, the community or
religion refused to accept them.
 The demand for the new laws stemmed from an understanding about Indian
a necessary, autonomous core of female personhood that the state must
underwrite.
 Under the Hindu law in operation prior to the coming into force of the Act, a
woman's ownership of property was hedged in by certain delimitations on
her right of disposal and also on her testamentary power in respect of that
property.
 Doctrinal diversity existed on that subject.
 Divergent authorities only added to the difficulties surrounding the meaning
of a term to which it sought to give technical significance.
 Women were supposed to, it was held and believed, not have power of
absolute alienation of property.
 The restrictions imposed by the Hindu law on the proprietary rights of
women depended upon her status as a maiden, as a married woman and as a
widow.
 They also depended upon the source and nature of property.
 Thought there were some fragmented legislation upon the subject (regard
being made to the Hindu Woman's Right to Property Act, 1937), the settled
law was still short of granting a status to woman where she could acquire,
retain and dispose off the property as similar to a Hindu male.
 The Hindu Succession Act, 1956 and particularly Section 14 brought
substantial change, thus, upon the aspect of a right of a Hindu female over
her property and thereby settled the conflict.

Section 15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to
the rules set out in Section 16,-
1. Firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
2. Secondly, upon the heirs of the husband ;
53
 3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother

(2) Notwithstanding anything contained in Sub-Section (1),

1. Any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter) not upon the other heirs
referred to in sub-Section (1) in the order specified therein, but upon the
heirs of the father; and
2. Any property inherited by a female Hindu from her husband or from her
father-in-law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or daughter) not
upon the other heirs referred to in sub-Section (1) in the order specified
therein, but upon the heirs of the husband.

 This Section propounds a definite and uniform scheme of succession in the

property of a female Hindu who dies intestate after the commencement of
the Act.
 The rules laid down under this Section are to be read with Section 16.
 This Section groups the heirs of a female intestate into five categories as laid
in sub-Section (1).

 However sub-Section (2), similar to the scheme of Section 14, is in the

nature of an exception to the general rule as laid in sub-Section (1).

The two exceptions are, if a female dies without leaving any issue then,
1. in respect of property inherited by her from her father or mother, that
property will devolve not according to the order laid down as in sub-Section
(1) but upon the heirs of her father, and
2. in respect of the property inherited by her from her husband or father-in-law,
that property will not devolve according to the order laid down in sub-
Section (1) but upon the heirs of her husband.

 It is important to note that the two exceptions herein referred are confined to
only the property inherited from the father, mother, husband and father-in-
law of the female and does not affect the property acquired by her by gift or
other by other device.

54
  The Section has changed the entire concept of stridhana and the mode and
manner of acquisition of property by the female, which earlier determined
how the property would be inherited, has been changed and amended by the
Section.
 Considering Section 17, it is important to note that Section 16 does not
apply to persons governed by Marumakkattayam and Aliyasantana laws.

 As specified in the beginning of the sub-Section (1), in the devolution of

heritable property of a female intestate, those in a higher entry are preferred
to those in a lower entry.

Q.8. HINDU SUCCESSION ACT WITH AMENDMENT (2005)

The Hindu Succession Act, 1956

 The Hindu Succession Act, 1956 is an Act of the Parliament of India enacted
to amend and codify the law relating to intestate or unwilled succession,
among Hindus, Buddhists, Jains, and Sikhs.
 The Act lays down a uniform and comprehensive system of inheritance and
succession into one Act. The Hindu woman's limited estate is abolished by
the Act.
 Any property possessed by a Hindu female is to be held by her absolute
property and she is given full power to deal with it and dispose it of by will
as she likes.
 Parts of this Act was amended in 2005 by the Hindu Succession
(Amendment) Act, 2005.

Applicability
As per religion
 This Act is applicable to the following:
 Any person who is a Hindu by religion in any of its forms or developments
including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or
Arya Samaj;
 any person who is Buddhist, Sikh by religion; and
 to any other person who is not a Muslim, Christian, Parsi or Jew by religion
unless it is proved that the concerned person would not have been governed
by the Hindu Law or by any custom or usage as part of that law in respect of
any of the matters dealt with herein if this Act had not been passed.

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 Explanation as to who shall be considered as Hindus, Buddhists, Jains or Sikhs
by religion has been provided in the section:
 Any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion;
 any child, legitimate or illegitimate, one of whose parents is a Hindu,
Buddhist, Jain or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent belongs or
belonged;
 any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh
religion.
 A person shall be treated as a Hindu under the Act though he may not be a
Hindu by religion but is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.

As per tribe
 However it has been provided that notwithstanding the religion of any person as
mentioned above, the Act shall not apply to the members of any Scheduled
Tribe within the meaning of clause (25) of article 366 of the Constitution of
India unless the Central Government, by notification in the Official Gazette,
otherwise directs. Surajmani Stella Kujur Vs. Durga Charan Hansdah-SC

In the case of males

 The property of a Hindu male dying intestate, or without a will, would be given
first to heirs within Class I.
 If there are no heirs categorized as Class I, the property will be given to heirs
within Class II.
 If there are no heirs in Class II, the property will be given to the deceased's
agnates or relatives through male lineage.
 If there are no agnates or relatives through the male's lineage, then the property
is given to the cognates, or any relative through the lineage of females.

There are two classes of heirs that are delineated by the Act.

 Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased

son, widows of a pre-deceased son, son of a, pre-deceased sons of a
predeceased son, and widows of a pre-deceased son of a predeceased son.
 If there is more than one widow, multiple surviving sons or multiples of any
of the other heirs listed above, each shall be granted one share of the
deceased's property.

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  Also if the widow of a pre-deceased son, the widow of a pre-deceased son of
a pre-deceased son or the widow of a brother has remarried, she is not
entitled to receive the inheritance.

 Class II heirs are categorized as follows and are given the property of the
deceased in the following order:
 Father
 Son's / daughter's son
 Son's / daughter's daughter
 Brother
 Sister
 Daughter's / son's son
 Daughter's / son's daughter
 Daughter's / daughter's son
 Daughter's /daughter's daughter
 Brother's son
 Sister's son
 Brother's daughter

In the case of females

 Under the Hindu Succession Act, 1956,females are granted ownership of all
property acquired either before or after the signing of the Act, abolishing
their "limited owner" status.
 However, it was not until the 2005 Amendment that daughters were allowed
equal receipt of property as with sons.
 This invariably grants females property rights.

 The property of a Hindu female dying intestate, or without a will, shall

devolve in the following order:
1. Upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband,
2. Upon the heirs of the husband.
3. Upon the father and mother
4. Upon the heirs of the father, and
5. Upon the heirs of the mother.

Certain exceptions
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  Any person who commits murder is disqualified from receiving any form of
inheritance from the victim.
 If a relative converts from Hinduism, he or she is still eligible for
inheritance.
 The descendants of that converted relative, however, are disqualified from
receiving inheritance from their Hindu relatives, unless they have converted
back to Hinduism before the death of the relative.

Amendment (2005):
 The Hindu Succession (Amendment) Act, 2005,an amendment to the Hindu
Succession Act, 1956, received the assent from President of India on 5
September 2005 and was given effect from 9 September 2005.
 It was essentially meant for removing gender discriminatory provisions
regarding property rights in the Hindu Succession Act, 1956.
 It was a revolutionary step in the field of Indian legislation regarding rights
of women in India.

Key amendments
Amendment of section 4 of the principal Act
 In section 4 of the Hindu Succession Act, 1956 , sub- section (2) has been
omitted.

Amendment of Section 6 of the principal Act

 Section 6 in the principal act has been substituted by the amended provision.
The amended provision under sec.6 of the principal act in essence defines as
follows:-
 Daughter shall have the same rights in the coparcenary property as
she would have had she been a son;
 The daughter shall be subject to the same liability in the said
coparcenary property as that of a son;
 The daughter shall be allotted the same share as is allotted to a son;
 The share of the per-deceased son or a per-deceased daughter shall be
allotted to the surviving child of such per-deceased son or of such
per-deceased daughter;
 The share of the per-deceased child of a per-deceased son or of a per-
deceased daughter shall be allotted to the child of such per-deceased
child of the per-deceased son or a per-deceased daughter.

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  Furthermore, after the commencement of the Hindu Succession
(Amendment) Act, 2005, the pious obligation of a son, grandson or great-
grandson for the recovery of any debt due from his father, grandfather or
great-grandfather under the Hindu law, came to an end

Exception

The amendment, under clause 5 of section 6 provides an exception as follows:

 Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004.

Explanation.
For the purposes of this section "partition" means any partition made by execution
of a deed of partition duly registered under the Registration Act, 1908 or partition
effected by a decree of a court

Key features & effect

 The amendment has tremendously balanced the property rights of male and
female siblings.
 In 2008, the Supreme Court ruled that the law has retrospective effect, and
for the daughter to become a co-sharer with her male siblings, the father
would not have had to be alive on 9 September 2005.
 The Supreme Court also ruled that the amendment was applicable to all
partition suits filed before 2005 and pending when the amendment was
framed.

This amendment is in consonance with the right of equality as enshrined under

Article 14, 15, & 21 of the constitution of India.

Q.9. AGNATES, COGNATES, FULL, HULF AND UTERINE

BLOOD.

Agnate:
 One person is said to be an ‘agnate’ of another if the two are related either
by blood or adoption or wholly through males. [Section 3 (I) (a) of Hindu
Succession Act].
 The agnatic relation may be male or female.
 It must be remembered that the relationship referred to here is relationship
by blood and not by marriage.
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  Thus the ascendants and descendants of a Hindu in the male line of
succession or those who come in the family by adoption through males are
agnates.
 Thus one’s father, grandfather, etc., in the ascending line; uncle’s son etc.,
in the collateral line or son, grandson in the descending line are agnates.

Cognate:
 One person is said to be “Cognate” of another if the two are related by blood
or adoption but not wholly throul, nales. [Section 3 (1) (c) of Hindu
Succession Act].
 A person is said to be cognate of another if the two are related through a
female/Vet/ache/a v. Subrarnania, (1921) 48 I.A. 349/’ such as sister’s
son or daughter’s son.
 This class includes relationship by marriage.
 According to section 12 the order of succession among agnates or cognates
as the case may be, shall be governed by following rules
1. Of two heirs, the one who has fewer or no degrees of ascent is
preferred;
2. Where the number of degrees of ascent is the same or none, that heir is
preferred who has fewer or no degrees of descent;
3. Where neither heir is entitled to be preferred to the other under Rule 1
or Rule 2, they shall take simultaneously. Full blood [Section 3 (1) (e)
of Hindu Succession Act].—Two persons are said to be related to each
others by full blood when they have descended from a common
ancestor by the same wife, e.g., full brother, full sister, full paternal
uncle, etc.
Full blood:
 The persons who are related to each other by common parents (both father
and mother) are FULL BLOOD brother-sister.
 Under Section 3 (1) (e) of the Hindu Succession Act, two persons are said to
be related to each other’s by full blood when they have descended from a
common ancestor by the same wife, e.g., full brother, full sister, full paternal
uncle, etc.

Half blood [Section 3 (1) (e) of Hindu Succession Act]:

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  Two persons are said to be related to each other by half blood when they
have descended from a common ancestor but by different wives.
 Thus the step-brothers born of father’s different wives are related to each
other by half blood:

Uterine blood [Section 3 (1) (e) of Hindu Succession Act]:

 Two persons are said to be related to each other by uterine blood when “they
are descended from a common ancestress by her different husbands.

 Thus a woman having two husbands at a time or one after another giving
birth to children creates relationship by uterine blood among her children.

Q.10. HINDU ADOPTION AND MAINTANANCE ACT 1956

 The Hindu Adoptions and Maintenance Act (HAMA) were enacted in India
in 1956 as part of the Hindu Code Bills.
 The other legislations enacted during this time include the Hindu Marriage
Act (1955), the Hindu Succession Act (1956), and the Hindu Minority and
Guardianship Act (1956).
 All of these acts were put forth under the leadership of Jawaharlal Nehru,
and were meant to codify and standardise the current Hindu legal tradition.
 The Adoptions and Maintenance Act of 1956 dealt specifically with the
legal process of adopting children by a Hindu adult, and with the legal
obligations of a Hindu to provide "maintenance" to various family members
including their wife or wives, parents, and in-laws.

Application
 This act applies to Hindus and all those considered under the umbrella term
of Hindus, which includes:
 A Hindu by religion in any of its forms or development;
 a Buddhist, Jain or Sikh;
 a child legitimate or illegitimate whose parents are Hindus, Buddhists,
Jains or Sikhs;
 a child legitimate or illegitimate one of whose parents are Hindus,
Buddhists, Jains or Sikhs and has been so brought up;
 an abandoned child, legitimate or illegitimate of unknown parentage
brought up as a Hindu, Buddhist, etc.; and
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  A convert to the Hindu, Buddhist, Jain or Sikh religion.
 Persons who are Muslims, Christians, Parsis or Jews are excluded from
this definition.
 The act does not also apply to adoptions that took place prior to the date of
enactment. However, it does apply to any marriage that has taken place
before or after the Act had come into force and Moreover, if the wife is not a
Hindu then the husband is not bound to provide maintenance for her under
this Act under modern Hindu Law.

Adoptions
Who can adopt?
 Under this act only Hindus may adopt subject to their fulfilment of certain
criteria. The first of these asserts that the adopter has the legal right to (under
this Act that would mean they are a Hindu).
 Next, they have to have the capacity to be able to provide for the adopted
child. Thirdly the child must be capable of being adopted.
 Lastly, compliance with all other specifications (as outlined below) must be
met to make the adoption valid.

 Men can adopt if they have the consent of their wife or of all of their wives.
 The only way of getting around obtaining the permission of the wife or of
the wives is if she or if they are unsound, if they have died, if they have
completely and finally renounced the world, and if they have ceased to be a
Hindu.
 Men who are unmarried can adopt as well as long as they are not a minor.
However, if a man were to adopt a daughter, the man must be twenty one
years of age or older.

 Only unmarried Hindu women can legally adopt a child.

 A married woman can only give her consent to adoption by her husband.
 A married woman whose husband adopts a child is to be considered the
mother.
 If the child is adopted and there are more than one wife living in the
household, then the senior wife is classified as the legal mother of the
adopted child.

Who can be adopted?

 The adopted child can be either male or female.
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  The adopted child must fall under the Hindu category.
 The adoptee also needs to be unmarried; however, if the particular custom or
usage is applicable to the involved parties then the adoptee can be married.
 The child cannot be the age of fifteen or older, unless again it is custom or
the usage is applicable to the involved parties.
 An adoption can only occur if there is not a child of the same sex of the
adopted child still residing in the home.
 In particular, if a son were to be adopted then the adoptive father or mother
must not have a legitimate or adopted son still living in the house.

Legal implications for an adopted child

 From the date of the adoption, the child is under the legal guardianship of
the new adopted parent(s) and thus should enjoy all the benefits from those
family ties.
 This also means that this child, therefore, is cut off from all legal benefits
(property, inheritance, etc.) from the family who had given him or her up for
adoption.

Maintenance
Maintenance of a wife
 A Hindu wife is entitled to be provided for by her husband throughout the
duration of her lifetime per Section 18 of HAMA '56.
 Regardless of whether the marriage was formed before this Act was instated
or after, the Act is still applicable.
 The only way the wife can null her maintenance is if she renounces being a
Hindu and converts to a different religion, or if she commits adultery.

 The wife is allowed to live separately from her husband and still be provided
for by him.
 This separation can be justified through a number of different reasons,
including:
 If he has another wife living,
 If he has converted to a different religion other than Hinduism,
 If he has treated her cruelly, or
 Even has a violent case of leprosy.

 If the wife is widowed by her late husband, then it is the duty of the father-
in-law to provide for her.
 This legal obligation only comes into effect
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  If the widowed wife has no other means of providing for herself.
 If she has land of her own, or
 means of an income and can maintain herself then the father-in-law is
free from obligation to her. Additionally, if the widow remarries then
her late husband's father-in-law does is not legally bound by this Act
anymore as well.

Maintenance of a child or of aged parents

 Under this Act, a child is guaranteed maintenance from his or her parents
until the child ceases to be a minor.
 This is in effect for both legitimate and illegitimate children who are claimed
by the parent or parents.
 Parents or infirmed daughters, on the other hand, must be maintained so long
as they are unable to maintain for themselves.
 Sections 20-22 of the Act cover the same, and provide for the maintenance
of any dependents of an individual.

Amount of maintenance provided

 The amount of maintenance awarded, if any, is dependent on the discretion
of the courts.
 Particular factors included in the decision process include the position or
status of the parties,
 the number of persons entitled to maintenance,
 the reasonable wants of the claimants,
 if the claimant is living separately and if the claimant is justified in doing so,
 And the value of the claimant's estate and income.
 If any debts are owed by the deceased, then those are to be paid before the
amount of maintenance is awarded or even considered.

Q.11. MINORIYTY AND GAURDIANSHIP ACT

 The Hindu Minority and Guardianship Act were established in the year 1956
as part of the Hindu Code Bills.
 This act extends to the whole of India except the State of Jammu & Kashmir
and applies to Hindus domiciled in our country.
 This act was launched to enhance the rules under Guardians and Wards Act,
1890. Hindu Minority and Guardianship act was introduced to modernise the
Hindu legal tradition and to codify certain parts of the laws relating to
minority and guardianship among Hindus.

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  This act serves explicitly to define guardianship relationships between
minors and adults, as well as between the people of all ages and their
respective property.
 In this article, we view the various aspects of the Hindu Minority and
Guardianship Act, 1956 in detail.

Applicability
The Hindu Minority and Guardianship Act apply to follow persons in India:
 Guardianship act applies to any person who is a Hindu by religion or
any of its forms or developments, including the Virashaiva, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samaj.
 To any person who is a Jaina, Buddhist or Sikh by religion
 This act applies to any person who is domiciled in the territories
Note: To apply the Hindu Minority and Guardianship Act in the territories, the
person should not belongs to Muslim, Christian, Parsi, or Jew by religion

 If it is proved that any of such person is governed by the Hindu law or by

any customs or usage as part of Hindu law in respect of any of the matters
dealt, this act would not be applicable.

Applicability of Hindus, Buddhists, Jainas or Sikhs

Hindu Minority and Guardianship Act apply to the following persons who belong
to Hindus, Buddhists, Jainas or Sikhs by religion:
 This act applies to any child of Hindus, Buddhists, Jainas or Sikhs
 Legitimate or illegitimate of Hindus, Buddhists, Jainas or Sikhs are
governed under Hindu Minority and Guardianship Act
 Both of whose parents are Buddhists, Hindus, Jainas or Sikhs by religion is
applicable for this act
 This act also applies to any person who is converted or re-converted to the
Hindu, Buddhist, Jaina or Sikh religion
 Guardianship act applies to any child, legitimate or illegitimate, one of
whose parents are a Hindu, Jaina Buddhists or Sikh by religion and who is
brought up as the member of the tribe, family, group or community to
which such parent belonged

Note on Guardian
 According to Hindu Minority and Guardianship Act, 1956 the guardian is
defined as a person having the care of a minor or of his property or both the
person and the property.
The Guardian defined in following terms under this act:
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A natural guardian
 A guardian appointed by a will of the minor’s mother or father
 A guardian appointed or declared by the court
 A person empowered to act or under any enactment relating to any court
towards
Natural Guardians of a Hindu Minor
 As provided in this Hindu Minority and Guardianship Act, 1956, the
following are entitled to be the natural guardians in respect of the minor’s
person as well as in respect of the minor’s property excluding the undivided
interest in the joint family:
 In case of a Hindu boy or an unmarried girl, the natural guardians
will be the father and after him the mother
 According to this act, the custody of a minor who has not completed
the age of five years will ordinarily be with the mother (the guardian
will be a mother)
 If an illegitimate boy or an illegitimate unmarried girl, the natural
guardians will be the father and after her the father
 In the case of a Hindu married girl, the husband will be the guardian

Non-applicability
 As per the provision of Hindu Minority and Guardianship Act, 1956, no
person will be qualified to act a natural guardian of a Hindu minor:
 If that person has ceased to be a Hindu
 If such guardian has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
Note: In this act, the expressions father and mother do not include a stepfather and
a stepmother.

Rights of Natural Guardian

The natural guardian of having the following rights in respect of minor children:
 Right to custody
 Right to determine the religion of children
 Right to education
 Right to control movement
 Right to reasonable chastisement

Natural Guardianship of Adopted Son

 In case of an adopted son who is a minor pass, the natural guardian will be
the adoptive father and after him the adoptive mother.

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Powers of the Natural Guardian
 Subject to the provisions of the Hindu Minority and Guardianship Act, 1956,
the natural guardian of a Hindu minor has the power to do all acts, which are
mandatory or reasonable and proper for the benefit of the minor for the
realisation, protection or benefit of the minor’s estate.

Note: As per the provision of this act, the guardian can in no case bind the minor
by a personal covenant.

Transfer of Property
 The natural guardian should get the previous permission of the court, to
mortgage or transfer by sale, gift, exchange or any part of the immovable
property of the minor

Lease of a Property
 The previous permission from the court is needed to lease any part of
minor’s property for a term exceeding five years (5 years) or for a term
extending one year beyond the date on which the minor attains majority

Disposal of Property
 Any disposal of immovable property by the natural guardian, in
contravention of subsection the Hindu Minority and Guardianship Act,
1956, is voidable at the instance of the minor or any person claiming under
him.

No Permission
 No court will grant permission to the natural guardian to do any of the acts
such as Transfer of Property or Lease of a Property except in case of
necessity or for an evident advantage to the minor.

Application for Obtaining Permission

 According to the provision of Guardians and Wards Act, 1890 and Hindu
Minority and Guardianship Act, 1956, the guardian needs to furnish an
application for obtaining the permission of the court to transfer or lease a
minor’s property.

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  The guardian needs to apply for permission to the city civil court, or a
district court or a court empowered under the Guardians and Wards
Act, 1890 (8 of 1890).
 Submit the application to the concerned court within the local limits of
whose jurisdiction any portion of the property of minor is situated.
 An appeal reclines from an order of the court refusing permission to the
natural guardian to do any of the acts of property transfer to the court to
which appeals ordinarily lie from the decisions of that court.

Know more about How to Write a Will

Guardians Appointed by the Court

 As mentioned above, the courts are empowered to appoint guardians under
the Hindu Minority and Guardianship Act.
 The High Court also has inherent jurisdiction to appoint guardians, but this
power is exercised sparingly.
 While appointing a guardian, the court takes into consideration various
factors as mentioned below:
 The age of the guardian
 Gender of the guardian
 Wishes of the parents
 The personal law of the children
 The welfare of the children

Welfare of Minor
 In the appointment of the declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor will be the paramount
consideration.
 No person will be entitled to the guardianship by virtue of the provisions of
the Hindu Minority and Guardianship Act or of any laws relating to
guardianship in marriage among the Hindus if the court is of the opinion that
her or his guardianship will not be for the welfare of the minor.

Testamentary Guardians and their Powers

 Testamentary Guardians and their Powers under the Hindu Minority and
Guardianship Act is explained below:

1. Hindu Father as Natural Guardian:

 A Hindu father can be entitled to act as a natural guardian of his minor
legitimate children may appoint the guardian for any of them in
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 respect of the minor’s person or respect of the minor’s property or
respect of them both.
 An appointment made as natural guardian of his minor legitimate will
not affect if the father predeceases the mother but will revive if the
mother dies without appointing, by will, any person as guardian.

2. Hindu Widow as Natural Guardian:

 A Hindu widow can be entitled to act as a natural guardian of her
minor legitimate children under the Hindu Minority and Guardianship
Act, 1956.
 Hindu mother can be entitled to act as the natural guardian of her
minor legitimate children because of the father has become disentitled
to act by will, appoint the guardian for any of them in respect of the
minor’s person or respect of the minor’s property or respect of both.

3. Hindu Mother as Natural Guardian:

 A Hindu mother can be entitled to act as the natural guardian of her
minor illegitimate children, by will appoint a guardian for any of them
in respect of the minor’s person or respect of the minor’s property or
respect of both.

4. Right of Guardian Appointed by Will:

 The guardian appointed by will has the right to act as the minor’s
guardian after the death of the minor’s father or mother and to
exercise all the rights of a natural guardian under this Hindu Minority
and Guardianship Act, 1956 to such extent and subject to such
restrictions as specified in this Act and in the will.

5. Rights of Guardian for a Minor Girl:

 If the minor is a girl, the right of the guardian so appointed by a will
may be ceased on her marriage.

6. Incapacity of Minor:
 According to the rules of the Minority and Guardianship Act, 1956, a
minor will be incompetent to act as a guardian of the immovable
property of any minor.
7. Rights of De facto Guardian:

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  A de facto guardian is defined as a person who takes a continuous
interest in the welfare of the minor’s person or the management and
administration of his property without any authority of law.
 After the commencement of the Minority and Guardianship Act,
1956, no person will be authorised to dispose the property or deal with
the property of a Hindu minor entirely on the ground of her or his
being the de facto guardian of the minor.
8. No Guardian for Minor’s Undivided Interest :
 If a minor has an undivided interest in the joint family property and if the
property is under the management of the adult members of the family, no
guardian will be appointed for such minor in respect of such undivided
interest.

Q.12. ANCESTRAI PROPERTTY.

 He senior most member of the Hindu family is known as Karta.

 The other members of the family are known as Coparcener.
 It is a relation to the father who can offer funeral cake.
 The concept of Coparcener has both spiritual and legal aspects.
 Coparcener is the person who acquires interest on property right from birth.
 Coparcenary owns the unity, possession and ownership of the title.
 The Coparcenary property is divided into Ancestral property and Joint
Hindu Property which is not ancestral.

Ancestral Property
 The property which is inherited up to three generations is referred to
ancestral property.
 That is the property descends from father, father’s father, and great
grandfather.
 Any property inherited other than the members/relations are known as
separate property.
 Only male members have rights over the ancestral property. The Hindu
Succession Act, amended in 2005, allows women to enjoy equal rights to the
property.
 Now women have the same right as men over the ancestral property.
 Once the division/ partition happens, all members will get an equal share
from the property.

The following are the incidents of ancestral property.

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Incidents of Ancestral Property

1. The ancestral property should be four generations old.

2. The property should not have been divided by the members. When the
division/partition happens, it becomes the self-acquired property and not
ancestral property.
3. The person has the right over the property right from the birth.
4. The ancestral property rights are controlled by per stripes and not by per
capita.
5. The shares are first determined for each generation and subdivided for the
successive generation.

Classification of Ancestral Property

 Property from paternal ancestors: Here, the Hindu male inherits the
property from his father, father’s father, father’s father’s father. In other
words, property acquired from any one of the three immediate paternal
ancestors. Such property is considered as ancestral property.
 Property from maternal ancestors: Any ancestral property inherited from
the maternal ancestors is termed as separate property and not ancestral
property.
 Property from the females: Any property inherited by the females of the
house doesn’t come under the ancestral property. The property brought by
women is considered as her separate property.
 Property obtained through gift/Will from paternal ancestors: When a
property is obtained by gift/Will from his ancestors, it can be either
considered as ancestral or self-acquired property. It depends on the intention
of the ancestors as mentioned in the deed/Will. If the ancestors make a
condition that the inheritor should take the property for the benefit of the
family, then it is ancestral property. If no condition is made, it is considered
as a separate property.
 Other property: Any property which is bought from the income of the
ancestral property is known as ancestral property. So anything purchased
with the assistance of ancestral property is also called as ancestral property.
The children, grandchildren, great-grandchildren possess an interest over
the income and accretion even before their birth.

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  Sec 26 of Hindu Succession Act provides that, if a person is converted into
other religion, he still has rights over ancestral property.
 The person has the birthright over such property, so the conversion cannot
stop from claiming the property.
 The illegitimate child cannot claim any rights over ancestral property.

 Under Muslim law, there is no concept of coparcener property, so ancestral

property doesn’t exist.

 The Christian law is governed by the Indian Succession Act and there are no
provisions for the ancestral property.
 These both laws can inherit their property either by Will/gift or after their
death the legal heir can inherit their property.

Q.13. DISCUSS IN BRIEF STRIDHAN.

 The term ‘Stridhan is the combination of two words ‘Stri’i.e. woman and
‘Dhan’ i.e. property and thus together these two words imply that property
over which a woman has an absolute ownership.
 The term was first used in Smritis and in the Dharmasutra of Baudhyan
which meant ‘woman’s absolute property’.
 When a male dies leaving no male members then the property goes to his
wife, who is a legal representative.
 But, prior to the Women’s Right to Property Act, 1937, women had no right
in the property.
 Since a widow had to suffer after the death of her husband in such a case, it
was found necessary to give her a limited right for her maintenance till her
death.
 Under the modern Hindu Law, Stridhan does not mean any specific
property, but it includes all those properties of a Hindu woman over which
she has absolute ownership and which is inherited by her successors.
 There is a difference between the term woman’s estate and stridhan and they
are: o 1.A woman has a limited right of alienation with respect to properties
coming under ‘woman’s estate’.
 It can be exercised only in situations of dire necessity, whereas with respect
to Stridhan, a woman has an absolute right of voluntary alienation of the
property coming under it.
 In case of a woman’s estate the property after the death of the woman is
inherited by the descendants of the male and not the female, however, in
case of Streedhan, the property is inherited by the descendants of the
woman.

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  According to the age old Smritis and all old schools of Hindu law such as
Dayabhaga, Mitakshara etc. the following was Streedhan in the hands of a
woman whether she is a maiden, married woman or widow.
1. Gifts made to a woman before the nuptial fire.
2. Gifts made to a woman at the bridal procession
3. Gifts made in token of love by father-in-law and mother-in-law.
4. Gifts made by father, mother and brother.
5. Property that is obtained through gifts, sale, partition, acquisition and
other means. o Stridhan as per Judicial decisions.
 In Bhagwan Das V. Maina bai, the Privy council laid that property inherited
by a Hindu female from her husband is not Stridhan.
 Hence, such a property is inherited by her husband’s collaterals and not by
her own heirs.
 In Devimangal V Mahadeo Pd, the Privy council held that the share coming
under the possession of a woman after partition is not Stridhan.
 It has been held that where a widow retains her possession for more than 12
years over a joint family property against her heirs, it becomes her Stridhan.
 The property that has been obtained by a widow from government with
permanent or alienable rights is also Stridhan.
 The clothes and ornaments or a woman also fall under Stridhan.
 Earnings from Stridhan or savings there from are also termed under
Stridhan.
 In the case of Vinod Kumar Sethi V. Punjab state, the Punjab High Court
held that whatever has been received by a bride in marriage or whatever has
been gifted to her falls under Stridhan.
 It was further cemented in the case of Pratibha Rani V Suraj Kumar, when
the Supreme court held that whatever gifts, presentations and dowry items
are given to a woman at the time of marriage would be regarded as her
absolute property.

Sources of Stridhan:

1) Properties acquired from the following sources fall under the expression
Stridhan.
2) Gifts received from relatives,
3) Gifts and bequests received from strangers during maidenhood,
4) Property obtained in partition.
5) Property got in lieu of maintenance
6) Property acquired by inheritance.
7) Property acquired through technical skill and art.
8) Property acquired by compromise
9) Property acquired by adverse possession.

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 10) Property purchased with the earnings of the Stridhan or with saving of
income from Stridhan.
11) Property acquired lawfully from sources other than those mentioned above.

 After the commencement of the Hindu Succession Act, 1956, every property
held by a Hindu female on the date of the enforcement of the Act,
 Whether acquired prior or subsequent to the Act, became her absolute
property.

Q.14. WHAT IS ENDOWMENT? DISCUSS ESSENTIAL

ELEMENTS OF A VALID HINDU ENDOWMENT.
 The courts define endowments as the properties set apart or dedicated by gift
or devise for the worship of some particular deity or for the maintenance of a
religious or charitable institution, or
 for the benefit of the public or some section of the public in the advancement
of religion, knowledge, commerce, health, safety or for any other object
beneficial to the mankind.
 Amongst the religious and charitable endowments, hospitals, schools,
universities, almshouses ( a house founded for distribution of food to
Brahmans or poor), establishment of idols etc., are included.
 According to Raghvachariar, an endowment is referred to as the setting
apart of property for religious and charitable purposes in which there is a
Karta and a specific thing which can be ascertained.
 A disposition in India to be a public trust must be made with the purpose of
advancement of either religion, knowledge, commerce, health, safety or
other objects beneficial to the mankind.

Different kinds of Endowments:

Public and Private Endowments:

 In order to ascertain the nature of the endowment as to whether it is public
or private,
 the subsequent conduct of the settler and use of the property set apart by the
public at large are to be considered.
 When a temple is thrown open for public at large for worship, it can be said
that the nature of the endowment is public.
 Where the property is kept separate safely for the worship of family deity by
family members only, with which the public has nothing to do, it is a private
endowment.

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  However, in certain properties, even if other Hindu worshippers are allowed
to worship a family deity, it will not confer public nature to the endowment.
 The Madras High Court in Keshav Gounder v. D.C. Rajan, held that there is
very little difference between the public and private endowment. In public
endowment the interest of general
 public or of a group of persons is protected and involved, wherein in private
endowment the interest of the settler of the trust or his family members only
is protected and involved.

Charitable Endowments.

 Where the gifts are made for charitable purposes such as for the institution
of Dharmashala, Anathashram (orphanage), Sadavratas of the establishment
of educational and medical institutions or/and for the construction of
Anathashrams (orphanage) tanks, wells and bathing ghats etc., they are
known as charitable endowments.
 When it comes to endowments, a Hindu is free to dedicate all of his property
for religious or charitable purpose, which he can validly dispose of by gift or
will.

Essential elements of a valid endowment.

1) Absolute dedication.
 For the creation of a valid endowment it is necessary that the property is
absolutely and forever dedicated for the worship of deity by the donor or the
dedication is for a charitable purpose.
 It is necessary that the donor has deprived himself of the beneficial interest
in the property.
 The Supreme Court had in the case of Devakinandan v. Murlidhar, observed
that the essentials of a dedication are sankalap (determination), utsarga
(renunciation of ownership in the property) and prathista (installation).
 There should be formal declaration by the settler of his intention to dedicate
the property.
 The owner of the property should secondly renounce(to abandon) his interest
in the property.
 If the renunciation is made for the public interest or for the use of public it
becomes a public endowment.
 Thirdly, there should be formal installation, if it is of temple, the installation
should be of deity.
 If all the above essentials are fulfilled, it can be said that the dedication is
absolute.

2) Object must be definite.

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  It is necessary that the object of the dedication is definite, meaning it should
be made clear as to for which deity the dedication has been made or the
charitable purpose for which the endowment has been made.
 A dedication to the Dharma is invalid, the dedication being unclear and
uncertain.
 Similarly, leaving the charitable trust at the will of trustees to decide the
purpose is invalid.
 A trust created for the worship of a deity, where the name of the deity is not
mentioned, is considered invalid
 In Saraswati v. Raj Gopal, the Supreme Court held that building of a
Samadhi of an ordinary person cannot be the object of charitable endowment

 But where an institution has emerged out of a Samadhi and it has become
the place of worship and archana for the members of the public, a charitable
endowment can be created for it.

3) Property must be definite.

 Any endowment is not valid unless some definite property is dedicated.
 Any uncertainty regarding the subject matter of the bequest is fatal for its
validity.
 Hence the subject matter of the property given in the endowment must be
specified.

4) Person setting or creating the endowment should be competent person.

 It is necessary that the settler is major, of sound mind and is not legally
disqualified for creating an endowment.
 A person governed by Mitakshara can only dedicate his separate or self
acquired property but not his coparcenary interest.
 But a person governed by Dayabhag School, i.e., a father is competent to
create an endowment of his whole property in which his coparcenary
property is also included.
 Even a woman after the passing of Hindu Succession Act, 1956, can
dedicate her property as she is now an absolute owner of the property.
 A Karta of Hindu undivided family can also make a gift of small portion of
joint Hindu family property for pious, religious and charitable objects.
 In Raghunath v. Govind, a Karta alienated his share providing permanent
shrine to a family idol, such an alienation was held valid.

5) Endowment must not be opposed to law.

 An endowment created for saving the property from creditors is void or if it
is made within two years of the insolvency of the transferor.
 Where only a part of the property is dedicated for performing puja of a diety,
it does not give rise to a valid religious endowment.

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  In M.Appala Ramanujacharyalu v. Venkatavanara Sorhacharyulu, the
Andhra Pradesh High Court has held that mere execution of a deed of
dedication without the donor intending to act upon the terms of the deed
would not create a valid endowment.

Q.15. DISCUSS IN DETAIL SON’S PIOUS OBLIGATION TO

PAY FATHER’S DEBT.
 ‘Pious obligation’ means the moral liability of sons to pay off or discharge
their father’s nonavyavaharik (not immoral) debts.
 The debts borrowed may not be of legal necessity or for benefit of estate.
 Thus, if the father is the Karta of a Hindu joint family, he may alienate the
coparcenary property for discharging the antecedent debts.
 The sons are under the obligation to recover such alienated property by
repaying the debts.
 The ancient doctrine of pious obligation was governed by Smriti law.
 There is a pious obligation on the sons and grandsons to pay the debts
contracted by the father and grandfather.
 According to Privy Council this obligation extends to great grandsons also
because all the male descendants’ up to three generations constitute
coparcenary and every coparcener is under a religious obligation to pay the
debt contracted by their ancestor, provided such debt was not taken for an
immoral or unlawful purpose.
 The concept of pious obligation has its origin in Dharmashastras, according
to which non-payment of debt is a sin which results in unbearable sufferings
in the next world.
 Hence the debts must be paid off in all circumstances provided it was not for
immoral and illegal purposes.
 Vrihaspati has said, “If the father is no longer alive the debt must be paid by
his sons. The father’s debt must be paid first of all, and after that a man’s
own debts, but a debt contracted by the paternal grandfather must always be
paid before these two events.
 The father’s debts on being proved, must be paid by the sons as if their own,
the grandfather’s debt must be paid by his son’s son without interest, but the
son of a grandson need not pay it at all.
 Sons shall not be made to pay (a debt incurred by their father) for spirituous
liquor, for idle gift, for promises made under influence of love or wrath, or
for surety ship, nor the balance of a fine or toll liquidated in part by their
father.
 Yajnayavalkya says, “A son has not to pay in this world father’s debt
incurred for spirituous liquor, for gratification of lust or gambling, nor a
fine, nor what remains unpaid of a toll; nor idle gifts.”

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  But in case of debts for purposes other than the above, on the death of the
father, or on his going abroad, or suffering from some incurable disease, the
debt contracted by him would be payable by his sons and grandsons.
 The doctrine of pious obligation does not extend the liability to females even
if they have been given a share in the joint family property on partition.
 Where the wife gets a share on partition between husband, sons and herself,
still she would not be under any obligations to pay the debt of the ancestor
(father)
NOTE : revision purpose only, kindly prefer book also

ALL THE BEST

PAST PAPER SOLUSTION, REFER WHOLE SYLLBUS

CONSTITUTIONAL LAW II

Q.1. DISCUSS COUNCIL OF MINISTERS.

Council of Ministers

 As per Article 74 (1), “there shall be a Council of Ministers with the Prime
Minister as its head to aid and advice the President who shall, in exercise of
his functions act in accordance with such advice.”
 As per Article 75 (1), the Prime Minister shall be appointed by the President
and other Ministers shall be appointed by the President on the advice of the
Prime Minister.
 As per 91st Amendment Act, 2003, Total number of Ministers, including
Prime Minister, in the Council of Ministers shall not exceed 15% of total
number of members of the house of people.
 As per Article 75 (1B), a member of either house of parliament belonging to
any party who is disqualified for being a member of that house on the
ground of defection under Para 2 of the Tenth schedule shall also be
disqualified to be appointed as Minister under 75(1), till he is again elected.
 There are three categories of Council of Ministers: i. Cabinet Ministers ii.
Ministers of State iii. Deputy Ministers
 Cabinet Ministers are head of their departments who can attend cabinet
meetings when specially invited by PM and when matter concerning their
department is discussed.
 Ministers of State are formally of cabinet status and are paid the same salary
as cabinet ministers and they hold independent charge of their department.

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  Deputy Ministers assist the Ministers with whom they are attached to in their
administrative duties. They do not have separate charge of a department.

A Non-member can become a Minster:

 As per Article 75(5), Minister who for a period of six consecutive months is
not a member of either House of Parliament shall cease to be a Minister at
the expiration of that period.
 There is no legal bar that a Minister must be a Member of Parliament.
 An outsider may be appointed as a Minister but he must become Member of
Parliament within six months.
 If he is not elected within six months, he is bound to resign from legislature.

Case: S.P. Anand v. H.D. Deve Gowda

 In this case, petitioner had challenged the appointment of Mr. Deve Gowda
as Prime Minister on the ground that at the time of appointment he was not
the member of either house.
 Supreme Court held that person who is not the member of either house can
be appointed by Prime minister for six months, but he has to become
Member of Parliament within the said period.

Non-member cannot be re-appointed without being elected:

Case: S.R. Chauhan v. State of Punjab
 In this case, Mr. Tej Prakash Singh, a member of legislature was appointed
as a Minster for six months.
 He failed to get himself elected to the legislature and resigned.
 In the meantime, another person was appointed as CM and he appointed Mr.
Tej Prakash as minister again.
 Supreme Court held that Article 164(4) was violated.
 A non-member who fails to get elected during the period of six consecutive
months after he is appointed as a minister cannot be reappointed as minister.

Convicted person cannot be appointed Chief Minster:

Case: B.R. Kapoor v. State of Tamil Nadu
 Supreme Court held that a person convicted of criminal offence and
sentenced for more than two years of imprisonment cannot be appointed as
CM.
 In 2001, Smt. Jaylalitha won election. But prior to election she was
convicted for various offences and was sentenced to imprisonment for more
than two years.

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  This was challenged by certain persons through PIL. The court held that the
appointment was violative of Article 164 (4) and therefore was
unconstitutional and invalid.
 The court also rejected the argument of her counsel that the “mandate” is
supreme and the will of people must be respected. The Constitution shall
prevail over the mandate.

Q.2. DISCUSS WHETHER INDIAN CONSTITUTION IS

FEDRAL.

 It has been the matter of debate among the scholars that whether the
constitution of India is completely federal or unitary in nature.
 But actually Indian constitution contains both features of a federal
constitution and unitary constitution.
 But for the very clear picture of this conclusion first of all we have to know
that what is the federal constitution and what is unitary constitution.
 What feature of Indian constitution makes it federal or what features makes
it unitary.
 The question whether the Indian Constitution could be called a federal
constitution troubled the minds of the members of the Constituent
Assembly.
 This question cannot be answered without going into the meaning of
federalism and the essential features that are evident in federal state.

Federal Constitution:

 In a federal set up there is a two tier of Government with well assigned

powers and functions.
 In this system the central government and the governments of the units act
within a well defined sphere, co-ordinate and at the same time act
independently.

Unitary Constitution

 A unitary system is governed constitutionally as one single unit, with one

constitutionally created legislature.
 All power is top down. A unitary state is a sovereign state governed as one
single unit in which the central government is supreme and any
administrative divisions (sub national units) exercise only powers that the
central government chooses to delegate.

Federal Features of Indian Constitution

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Supremacy of the Constitution:
 This is one of the federal features of the Indian constitution.
 The supremacy of the constitution means that both, the Union and the State
Governments, shall operate within the limits set by the Constitution.
 And both the union government and the central government derive their
powers from the constitution.
 Written Constitution The most important feature of a federation is that its
constitution should be a written one.
 The Constitution of India is a written constitution is the most elaborate
Constitution of the world.

Rigid Constitution:
 The constitution of India is a rigid constitution and this is one of the basic
features of federal constitution.
 The procedure of amending the Constitution in a federal system is normally
rigid.
 Indian Constitution provides that some amendments require a special
majority.
 Such an amendment has to be passed by majority of total members of each
house of the Parliament as well as by two-thirds majority of the members
present and voting there in.
 However, in addition to this process, some amendments must be approved
by at least 50% of the states.
 After this procedure the amendment is signed by the head of the state i.e;
the President.
 Since in India important amendments can be amended through this
procedure Hence, Indian Constitution has been rightly called a rigid
constitution.

Division of Powers:
 In Indian constitution the powers of state and centre are clearly defined and
there are very clear limits of both the centre and the state for law making
powers.
 Our constitution enumerates three lists, viz. the Union, the State and the
Concurrent List.
 The Union List consists of 97 subjects of national importance such as
Defence, Railways, Post and Telegraph, etc.
 The State List consists of 66 subjects of local interest such as Public Health,
Police etc.
 The Concurrent List has 47 subjects important to both the Union and the
State such as Electricity, Trade Union, Economic and Social Planning, etc.

Supremacy and Independence of the Judiciary:

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  Supremacy of judiciary is another very important feature of a federal state
where there is an independent judiciary to interpret the Constitution and to
maintain its sanctity.
 The Supreme Court of India has the original jurisdiction to settle disputes
between the Union and the States.
 It can declare a law as unconstitutional, if it contravenes any provision of the
Constitution.

Unitary Features of Indian Constitution:

 In spite of the fact that the Indian Constitution establishes a federal structure,
it is indeed very difficult to put the Indian Constitution in the category of a
true federation.
 The following provision of Indian constitution makes it unitary

Union of States;
 Article I of the Constitution describes India as a ‘Union of States’, which
implies two things:
1. Firstly, it is not the result of an agreement among the States and
2. secondly, the States have no freedom to secede or separate from the
Union.
 Besides, the Constitution of the Union and the States is a single framework
from which neither can get out and within which they must function.
 The federation is a union because it is indestructible and helps to maintain
the unity of the country.

Appointment of Governor:
 Art 155 and 156 provide that the Governor, who is the constitutional head of
a State, is to be appointed by the President and stays only until the pleasure
of the President The Centre may take over the administration of the State on
the recommendations of the Governor or otherwise.
 In other words, Governor is the agent of the Centre in the States.
 The working of Indian federal system clearly reveals that the Governor has
acted more as centre’s representative than as the head of the State.
 This enables the Union government to exercise control over the State
administration.

Representation in the Legislature:

 The equality of units in a federation is best guaranteed by their equal
representation in the Uppers House of the federal legislature (Parliament).
 However, this is not applicable in case of Indian States.
 They have unequal representation in the Rajya Sabha.

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  In a true federation such as that of United State of America every State
irrespective of their size in terms of area or population it sends two
representatives in the upper House i.e. Senate.

Appointment on Key Positions:

 In addition to all this, all important appointments such as the Chief Election
Commissioner, the Comptroller and Auditor General are made by the Union
Government.
 Besides, there is single citizenship.
 There is no provision for separate Constitutions for the states.
 The States cannot propose amendments to, the Constitution.
 As such amendments can only be made by the Union Parliament.
 All India Services such as IAS and IPS have been created which are kept
under the control of the Union.
 In financial matters too, the States depend upon the Union to a great extent.
The States do not possess adequate financial resources to meet their
requirements.
 During Financial Emergency, the Center exercises full control over the
State’s finances.

Disturbances in the state:

 In case of disturbances in any State or part thereof, the Union Government is
empowered to depute Central Force in the State or to the disturbed part of
the State.
 Also, the Parliament, by law may increase or decrease the area of any State
and may alter its name and boundaries.

Unified Judiciary:
 The federal principle envisages a dual system of Courts.
 But, in India we have unified Judiciary with the Supreme Court at the apex.

Power to make laws:

 The Constitution of India empowered the central government to make laws
on the subjects in the state list.
 It is exercised only on the matters of national importance and that too if the
Rajya Sabha agrees with 2/3 majority.
 The constitution establishes a strong Centre by assigning all-important
subjects to the Centre as per the Union List.
 The State Governments have very limited powers.

Power to form new states and to change existing boundaries:

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  Under Art 3, center can change the boundaries of existing states and can
carve out new states.
 This should be seen in the perspective of the historical situation at the time
of independence. At that time there were no independent states.
 There were only provinces that were formed by the British based on
administrative convenience.
 At that time States were artificially created and a provision to alter the
boundaries and to create new states was kept so that appropriate changes
could be made as per requirement.
 It should be noted that British India did not have states similar to the States
in the USA.

Emergency Provisions:
 The President of India can declare three different types of emergency under
article 352, article 356 and article 360 for an act of foreign aggression or
internal armed rebellion, failure of constitutional machinery in a state and
financial emergency respectively.
 During the operation of an emergency, the powers of the State Governments
are greatly curtailed and the Union Government becomes all in all.

Conclusion
 From the above discussion it is seen that the constitution of India neither is
the complete federation nor it is completely unitary.
 It has the features of both. Sir Ivor Jennings was of the view that India has a
federation with a strong centralizing policy.
 In the words of D.D.Basu, the Constitution of India is neither purely federal
nor unitary, but is a combination of both. It is a union or a composite of a
novel type.
 It is often defined to be quasi-federal in nature.
 Thus we can safely say that it is primarly Unitary having some unitary
features.

Q.3. DISCUSS THE INSTANCES WHEN THE PARLIAMENT

CAN MAKE A LAW ON THE SUBJECT IN THE STATE LIST

Parliament makes laws on subjects in State List in the following scenarios

When Rajya Sabha passes a resolution to that effect:

 Parliament can make laws on a matter in state list, if the Rajya Sabha says
that it is necessary in the national interest that Parliament should make laws
on that matter.
 This resolution must be supported by two-thirds of the members of Rajya
Sabha, present and voting.
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  The resolution remains in force only for one year.
 It can be renewed again and again but not exceeding one year at a time.
 The laws made under the resolution too cease to have effect on the
expiration of six months after the resolution has ceased to be in force.
 The state legislature toucan make laws on the same matter, but, in case of
conflict parliamentary law prevails.

During a National Emergency :

 When a proclamation of national emergency is in operation, parliament can
legislate on subjects of the state list.
 Here too the laws become ineffective on the expiry of six months after the
emergency has ceased to operate.
 Here again, state can make laws but in case of conflict parliamentary law
prevails.

When States make a request for it:

 Parliament can also make laws on subjects in the state list when the
legislatures of two or more states pass resolutions requesting the Parliament
to enact laws on that matter.
 This law enacted by the Parliament will apply only to the concerned states
i.e., states who have passed such a resolution.
 But even other states are allowed to adopt the law by passing a resolution in
their legislatures.
 However only Parliament can amend or repeal such a law.
 The state legislature looses the power to make a law with respect to that
subject.
 Some examples are -Transplantation of Human Organs Act, 1994; Prize
Competition Act, 1955; Wild Life (Protection) Act, 1972; Water (Prevention
and Control of Pollution) Act, 1974, etc.

For implementing International Agreements:

 For implementing the international treaties, agreements or conventions, the
Parliament is authorized to make laws on any subject in the State List.
 Examples - Legislations related to TRIPS; Anti-Hijacking Act, 1982; etc.

During President’s Rule:

 Parliament can make laws with respect to any subject in the State List in
relation to that state, when President’s rule is in force in that state.
 Even if the President’s Rule ends, the law remains in force in the state.
 However, State legislature can repeal or alter or re-enact that law.

Q.4. DISCUSS METHODS OF AMENDMENT OF THE

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 CONSTITUTION
Procedure of Amendment of the Constitution: Method of Amendment
 To evolve and change with all changes in the society and environment is a
necessity for every constitution.
 The makers of the Constitution of India were fully aware of this need.
 As such, while writing the constitution, they also provided for a method of
its amendment. Further they of decided, to make the constitution both rigid
as well as flexible.
 They laid down a flexible amendment method in respect of its some parts
and for several others they provided for a rigid method.
Method of Amendment:
 Part XX of The Constitution of India contains only one Article 368.
 It deals with the power of the Parliament to amend the constitution.
 It lays down two special methods for the amendment of various parts of the
constitution.
 Along with it the Union Parliament has the power to change some specified
features/parts of the Constitution by passing an ordinary law.

Two Special Methods of Amendment under Art 368

I. Amendment by 2/3rd Majority of Parliament:

 Most parts of the Constitution (with exception of some specific provisions)
can be amended by this method.
 Under this method, the Constitution can be amended by the Union
Parliament alone.
 For this purpose an amendment bill can be passed by each of the two Houses
of Union Parliament by a majority of its total membership (i.e. absolute
majority) and by a two-third majority of members present and voting in each
House.
 It is a rigid method in so far as it prescribes a special majority for amending
the constitution but it is considered to be a flexible method because under it
the Union Parliament alone can pass any amendment.

II. Amendment by 2/3rd Majority of the Parliament plus Ratification by at

least half of the several State Legislatures:
In respect of some specified provisions of the Constitution, a very rigid method of
amendment has been prescribed.

In respect of these the amendment-making involves two stages:

 First, the amendment bill is to be passed by both the Houses of the Union
Parliament by a majority of total membership and a 2/3rd majority of
members present and voting in each House.

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  Secondly, after this the amendment bill has to secure ratification from at
least half of the several State Legislatures (now at least 14 state legislatures).
 Only then it gets finally passed and incorporated as a part of the Constitution
when the President puts his signatures on the bill.

The following provisions of the constitution can be amended by this rigid

method:
 Election of the President.
 Scope of the executive power of the Union.
 Scope of the executive power of a State.
 Provisions regarding High Courts in Union Territories.
 Provisions regarding Supreme Court of India.
 Provisions regarding High Courts in States.
 Legislative Relations between the Union and States.
 Any of the Lists in the Seventh Schedule. (Division of Powers between the
Union and States)
 Representation of States in the Parliament.
 The Provisions of Article 368. (Method of Amendment)

III. Additional Amendment-making by A Simple Majority in the Two Houses

of Parliament:
 In respect of some provisions of the Constitution the Parliament has been
given the power to make necessary changes by passing as a law in the
normal way i.e. by simple majority of members of both of its Houses.
 It is, indeed, an easy method of amendment.

It applies to the following provisions of the Constitution:

 An Admission/ formation of new States and alteration of areas, boundaries

or names of existing States.
 Citizenship provision.
 Provision regarding delimitation of constituencies.
 Quorum of the two Houses of Parliament.
 Privileges and Salaries and allowances of the MPs.
 Rules of procedure in each House of the Parliament.
 English as a language of the Parliament.
 Appointment of Judges and jurisdiction of Supreme Court.
 Creation or abolition of Upper Houses in any state.
 Legislatures for Union Territories.
 Elections in the country.
 Official language of India.
 Second, fifth and sixth Schedules of the Constitution.

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These methods of amendment reflect a mixture of rigidity and flexibility in the
Indian Constitution.

Main Features of the Amendment Method:

 Fart XX of the Constitution deals with Amendment of the Constitution. It

has only one Article i.e. Article 368.
 The power to amend the constitution is mainly with the Union Parliament.
No amendment can be made without Parliament’s action and consent. Union
Parliament alone has the power to initiate bills for amending the
constitution.
 There are three basic ways in which amendments can be made:
 Most provisions can be amended by the Union Parliament by
passing an amending act by a majority of total membership, and a
2/3rd majority of members present and voting in each House.
 Ten provisions of the constitution can be amended,
 By passing of the amendment bill by 2/3rd majority of the
members of each of the two Houses of Parliament,
 It becomes finally passed when approved by at least half of
the state Legislatures.
 Some provisions can be amended by the Parliament by an law by a
simple majority of its two Houses.
 Signature of the President is required as the final act which transforms a
duly enacted amendment bill into an Amendment Act.
 State Legislatures have been denied the power to initiate amendments.
 All amendments are subject to the Judicial Review power of the courts. (The
Supreme courts and State High Courts only) Any part of any amendment or
any amendment as a whole can be declared invalid by a court in case it is
found to be unconstitutional.
 The Parliament has the power to amend every part of the Constitution.
However, the Supreme Court has ruled that the Parliament has no power to
change the ‘Basic Structure of the Constitution’.

Method of Amendment: Critical Evaluation:

Main points of criticism:

1. Undemocratic:
The critics hold that since the process of amendment does not provide for a system
of getting consent or approval of the people of India, it is an undemocratic method.

2. Very Flexible:

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The Parliament alone can amend most of the constitutional provisions. The
flexibility of the constitution is evident from the fact that during the past 60 years
94 constitutional amendments have been made.

3. Very Rigid:
Some scholars feel that the Constitution of India is very rigid. It worked as a
flexible constitution during 1950-1989 only because of the presence of single party
dominance in Indian politics. In this era of coalition governments, it has become a
very rigid constitution.

4. Lack of Procedure for resolving deadlocks over Amendment Bills:

The Constitution does not provide for any method of resolving deadlocks between
the two Houses of parliament over an amendment bill.

5. Less Importance to States:

Except for the ‘ten provisions’ listed by Article 368, all parts of the Constitution
can be amended by the Union Parliament alone without the consent of the State
Legislatures. States do not have even the right to propose amendments.

6. The provision for Judicial Review over Amendments:

Some critics also object to the system of judicial review which permits the
Supreme Court and every High Court to judge the constitutional validity of the
amendments passed by the Parliament.

This makes the Supreme Court of India a super legislature with the negative power
of the rejecting duly passed amendments. On all these grounds, the critics strongly
criticise the method of amendment of the Constitution of India.

Relevant cases:
Shankari Prasad v. Union of India (1st Amendment, Act, 1951)
 The validity of the 1st Amendment Act, 1951, which inserted Article 31-A
& 31-B was challenged on the ground that it takes away or abridges the
fundamental rights which fell within the prohibition of Article 13(2) and
hence was void.
 It was argued that in Article 12, “State” included parliament and the word
“Law” must include the constitution amendment.
 However, the Supreme Court rejected the argument and held that the power
to amend the constitution including the fundamental rights is contained only
in Article 368. The word “Law” includes only an ordinary law exercisable
by the legislative powers.

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  Therefore, constitutional amendment will be valid even if it takes away the
fundamental rights.

Sajjan Singh v. State of Rajasthan (17th Amendment, Act, 1964)

 In this case, the validity of the 17th Amendment Act, 1964 was challenged.
 The Supreme Court approved the judgement given in Shankari Prasad’s case
and held that the words “amendment of the Constitution” means amendment
of all constitutional provisions.
 Gajendragadkar, C.J. said that if the constitution-makers intended to exclude
the fundamental rights from the scope of amending power, they would have
made a clear provision in that behalf.

Golak Nath v. State of Punjab

 In this case, the validity of 17th Amendment Act, 1964 which inserted
certain State Acts in Ninth schedule was again challenged.
 The Supreme Court overruled the decision of Shankari Prasad case and
Sajjan Singh case and held that the parliament has no power to take away the
fundamental rights.

24th Amendment Act, 1971

 In order to remove the difficulties created in Golak Nath’s case, the
parliament enacted 24th Amendment Act which made the following
amendments:
 Added a new clause (4) to Article 13- nothing in this Article shall apply to
any amendment of this Constitution made under Article 368.
 Substituted old heading “Procedure for amendment of the Constitution” with
new heading “Power of Parliament to amend the Constitution and Procedure
therefore.”
 inserted new sub section (1) in Article 368-“notwithstanding anything in the
Constitution, Parliament may, in exercise of its constituent power amend by
way of addition, variation, or repeal any provision of this Constitution in
accordance with the procedure laid down in this Article”.
 Substituted the words- “it shall be presented to the President who shall give
his assent to the Bill and thereupon”
 Added new clause (3) to Article 368- “nothing in Article 13 shall apply to
any amendment made under this Article”.

Q.5. DISCUSS MEANING AND KIND OF EMERGENCY.

Three Types of Emergency Under The Indian Constitution

 Black law’s dictionary defines emergency “as a failure of social system to
deliver reasonable conditions of life”.

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  The term emergency may be defined as “circumstances arising suddenly that
calls for immediate action by the public authorities under the powers
especially granted to them”.
 Dr. B.R Ambedkar claimed that the Indian Federation was unique as during
the times of emergency it could convert itself into an entirely unitary system.
 In India, the emergency provisions are such that the constitution itself
enables the federal government acquire the strength of unitary government
whenever the situation demands.
 During such urgent needs all the pacific methods should be exhausted and
emergency should also be the last weapon to use as it affects India’s federal
feature of government.

There are three types of emergencies under the Indian Constitution namely
 National Emergency
 Failure of constitutional machinery in states
 Financial Emergency

National Emergency
 Article 352 of the Indian Constitution talks about the national emergency.
 National emergency is imposed whereby there is a grave threat to the
security of India or any of its territory due to war, external aggression or
armed rebellion.
 Such emergency shall be imposed by the president on the basis of written
request by the council of ministers headed by the Prime Minister.
 When they are satisfied that they are satisfied that there is an eminent danger
thereof.

 Every proclamation is required to be laid before each House of Parliament,

 it will cease to operate after one month from the date of its issue unless in
the meantime it is approved by the parliament,
 The proclamation may continue for a period of 6 months unless revoked by
the president.
 For further continuance of emergency the resolution has to be passed by
either house of parliament by a majority of not less than two-third members
of the houses.

 During the times of such emergency the executive, legislative and financial
power rests with the centre whereas the state legislature is not suspended.

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  The union government under Art.250 of the constitution gets the power to
legislate in regards to subjects enumerated in the state list.
 Except Art20 and 21 all the fundamental rights are suspended. Under
Art.359 the president may suspend the right to move to the courts for
enforcement of fundamental rights during the time of emergency.

 National emergency has been imposed thrice in the country- in 1962 at time
of Chinese aggression,
 In 1971 during the indo-pak war,
 in 1975 on the grounds of internal disturbances.

Failure of Constitutional Machinery In State

 Article 256 talks about the failure of constitutional machinery in state also
known as the President’s rule.
 If the president on Governor’s report or otherwise is satisfied that the
situation has arisen that the government can’t be carried in accordance with
the constitutional provisions then, he may issue State emergency.
 President can declare emergency either by the report of Governor or he
himself is satisfied that the situation is such that the emergency has to be
imposed.
 But at times, President may declare emergency when a report is not received
from the governor.
 This was done by President Venkataraman in 1991 in the state of Tamil
Nadu even though he didn’t receive a report from the governor.

 After the 42th Amendment of the constitution the state emergency was made
immune from judicial review.
 But later in the 44th Amendment the legality of President’s rule could be
challenged

 The proclamation relating to state emergency shall be laid before each

House of Parliament unless both Houses approve it,
 The emergency shall cease to have effect after the expiry of a period of two
months.
 Further the duration of proclamation can be extended to 6 months each time
by both Houses of Parliament passing resolution approving its continuance.
 Beyond the period of an year the proclamation can only be continued if the
Election Commission certifies that it is not possible to hold election in the
state or that territory.

The consequences of state emergency are

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  The president assumes all the executive power of the state himself.
The state administration runs by him or any person appointed by him
generally the Governor.
 During such proclamation, the state assembly is either dissolved or
suspended. But the MLA’s do not lose their membership of the
Assembly.
 Parliament makes laws regarding the state list. The parliament only
passes the budget for the state.
 The High court of the state functions independently.
 President also proclaims ordinances in the state.

 During the state emergency the Union government has absolute control over
the state except the judiciary.
 If one looks at the past instances of state emergency in the country, three
common grounds emerge that have been invoked under Art.356- breakdown
of law and order, political instability, corruption and maladministration.

Case: Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case)

 It was held that the presidential proclamation dissolving state assembly in
Bihar under Art.356 was unconstitutional on extraneous and irrelevant
ground.
 The court said that the state governor misled the centre in recommending
dissolution of state assembly.

Case: S.R Bommai V. UOI

 A full bench of the Karnataka High court produced different opinion about
the imposition of the President’s rule in Karnataka,
 while in other states the court held that it was in violation of the constitution
and would have restored the original position.

Financial Emergency
 The president under Article 360 of the constitution has the power to declare
financial emergency if he is satisfied that the financial stability or the credit
of India or any part of its territory is threatened.
 It has to be laid before both the Houses of Parliament and ceases to operate
at the expiration of two months unless meanwhile approved by the
resolution of Houses.

 During the operation of financial emergency, the executive authority of the

union extends to the giving of directions to any state to observe certain
specified canons or financial propriety and such other directions that the
President may find necessary.
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  The directions may include reduction of salaries or allowance of those
serving a state, of all those in connection with the affairs of union including
judges of high court and Supreme Court.
 There has been no occasion of financial emergency in India.

Conclusion
 During the period of emergency for the execution of power there might be
infringement of Fundamental rights of individuals, which are judicially
granted by the Constitution of India.
 The validity of actions must be reviewed to deter political gains and give
way to political interest.
 Despite abuse of powers of the emergency provisions still have an important
role to play in the conditions prevailing in India, though it still remains a
controversial issue in the country.

Q.6. JURISDICTION OF SUPREME COURT.

 If we make a critical survey of the leading Constitutions of the world, we

find that theoretically speaking the Supreme Court of India has wider
jurisdiction than any other Supreme Court in any part of the world.
 The jurisdiction of the Court can be kept in four categories, viz., original,
writ, appellate and advisory.

1. Original Jurisdiction:
 A court is said to have original jurisdiction when it possesses the authority to
hear and determine the case in the first instance.
 This type of jurisdiction has been dealt with in Article 131 of the
Constitution.

The Supreme Court of India possesses original and exclusive jurisdiction in

any dispute:
 Between the Government of India, and one or more states or
 Between the Government of India and any state or states on one side and
one or more other states on the other or
 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”.
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  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).Adjustment of
expenses between the Union and the states under Articles 257 (4) and
258(3).

 Referring about the original jurisdiction of Supreme Court, D.D. Basu said,
“Though our Federation is not in the nature of a treaty or compact between
the component units, there is nevertheless a division of legislative as well as
administrative powers between the Union and the states.
 Article 131 of our Constitution therefore vests the Supreme Court with
original and exclusive jurisdiction to determine justiciable disputes between
the Union and the states or between the States inter se”.
 It may however by point out that during the first decade of the working of
the Constitution, original jurisdiction of the Court was not invoked. Such
disputes were resolved by the parties noted above by mutual agreement or
negotiation, rather than by adjudication.

 The West Bengal Government was the first to bring suit against Government
of India in 1961 against the unconstitutionality of the Coal Bearing Areas
Act 1957 before the Supreme Court.
 However, the same was dismissed by the Apex Court.

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.

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  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 Supreme Court, as the highest Court of Appeal, stands at the apex of the
Indian judiciary.
 M.C. Setalved in his speech at the inauguration of the Supreme Court on
January 28, 1950 said, “The writ of this court will run over territory
extending to over two million square miles inhabited by a population of
about 300 millions.
 It can truly be said that the jurisdiction and powers of this Court in their
nature and extent are wider than those exercised by the High Courts of any
country in the Commonwealth or by the Supreme Court of the U.S.A.”

The appellate jurisdiction of the Court can be divided into four main
categories of cases; Constitutional, Civil, Criminal and Special.

(a) Constitutional Cases:

 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.
 In the Election Commission vs. Venkata Rao (1953) a point was raised as to
whether appeal lay to the Supreme Court in a constitutional matter under
Article 132 from a decision of a single judge.

The Supreme Court answered the question in the affirmative. This makes the Court
the ultimate interpreter and saviour of the Constitution.

(b) Civil Cases:

 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:

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  That the amount or the value of the subject matter of the dispute is not
less than Rs. 20,000,
 That the case is a fit one for appeal to the Supreme Court irrespective of
value.

 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 so far as it deals with the
interpretation of the constitution.

(c) Criminal Cases:

 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.,
 Without a certificate of High Court;
 With a certificate of the High Court.
Without Certificate:
An appeal lies to the Supreme Court without a certificate, if:

1) The High Court has reversed an order of acquittal of an accused and

sentenced him to death.
2) 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).

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.

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  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.”

 In fact, if we go through hundreds of cases decided by the Court, under

appellate jurisdiction, we feel enamoured of the Fathers of our Constitution
who incorporated these provisions in the constitution.

(d) Special Appeals (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 Court’s 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.”
Military Tribunals are Exceptions:
 The only exception to this all-embracing judicial review is the decisions of
Courts constituted under any law relating to the Armed Forces.
 D.D. Basu opines “It vests in the Supreme Court a plenary jurisdiction in the
matter of entertaining and hearing appeals by granting special leave against
any kind of judgement or order made by any Court or Tribunal (except a
Military tribunal) in any proceeding and the exercise of this power is left
entirely to the discretion of the Supreme Court unfettered by any restrictions
and this power cannot be curtailed by any legislation short of amending the
Article itself.”
 It may, however, be pointed out that this special power vested with the
Supreme Court is to be exercised only under exceptional circumstances.

 In civil cases, for instance, the special leave to appeal under Article 136
would not be granted unless some substantial question of law or general
public interest is involved.
 In criminal cases, the Supreme Court will not grant such special leave to
appeal, unless exceptional circumstances exist or it is established that grave
injustice has been done and that the case in question is sufficiently important
to warrant a review of the decisions by the Supreme Court.

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Special Appellate Power Extended to Election Tribunals:
 The “special appellate” power of the Court was extended to the Election
Tribunal as well.
 It has been a handy weapon with it to review the decision of Labour and
Industrial Tribunals.
 In an election case, the Court held, “The jurisdiction with which Election
Tribunal is endowed, is undoubtedly a special jurisdiction but once it is held
that it is a judicial tribunal empowered and obliged to deal judicially with
disputes arising out of or in connection with elections, the overriding power
of this court to grant special leave, in proper cases, would certainly be
attracted and this power cannot be excluded by parliamentary legislation.”

 Special Appellate jurisdiction of the Court over the Industrial Tribunals is

obvious from Bharat Bank v. Employees of Bharat Bank and Muir Mills
v. Suti -Mills Mazdoor Union cases. In the former case, the Court held that
the functions and the duties of the Industrial Tribunal resemble that of
judicial body although it is not a court having all the attributes of a court of
justice.
 In the latter case, the Court reiterated the same view and held that it
possessed the overriding powers to interfere in a matter where a Court or
Tribunal had dealt with a person arbitrarily or had not given a fair deal to the
litigant.

4. Advisory Jurisdiction:
 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.

 In Keraka Education Bill, 1957 S.R. Das Chief Justice observed. “This
Court has under Clause (1) a discretion in the matter and may in a proper
case and for good reason decline to express any opinion on the questions
submitted to it.”
 Evidently the Supreme Court may refuse to express its advisory opinion, if it
is satisfied that it should not express its opinion keeping in view the nature
of questions forwarded to it and having regard to other relevant facts and
circumstances, e.g.,
 if the questions referred for advisory opinion are purely socio-economic or
political questions having no relation with the provisions of the Constitution
or having no constitutional significance.

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  Moreover, it is left to the Court to decide as to what type of hearing it will
adopt.
 Eventually, the Court has adopted the same procedure, as in the case of a
regular dispute brought before it.
 The advice of the Court is not binding on the President.

 Under section (2) of Article 142, the President is empowered to refer to the
Supreme Court for its opinion, disputes arising out of any treaty, agreement
etc., entered into or executed before the commencement of the Constitution.
 In such cases, it is obligatory for the Court to give its opinion to the
President. The treaties, agreements etc., referred to above, are those which
the Government of India have executed with the former princely states and
their rulers between 1947 and 1950.

 Examples of References for Supreme Court Advice:

To quote a few examples the President referred the following questions to Supreme
Court for its advice e.g.,

 In 1957, on Kerala Education Bill, such a necessity of Court’s advice

arose. The said Bill contained provisions authorizing the State Government
to take over schools managed by private agencies. Hence, it involved the
right to property, the acquisition of which through a bill needed the assent of
the President. Since the Bill was controversial and representations were
made to the President not to give his assent to such an unconstitutional piece
of legislation, the President thought it advisable to seek the advice of the
Supreme Court, before signing over the Bill.

 reference regarding Faruqui vs. Union of India (1994) was made to the
Supreme Court. On October 24, 1994 the Supreme Court returned to the
President the reference made to it whether a temple originally existed at the
site where the Babri Masjid stood. Such a Presidential reference was
described as unnecessary and superfluous.

 Reference Regarding SYL on July 22, 2004:

 On July 22, 2004, the Central Government filed a presidential reference
under Article 143 in the Supreme Court in the matter of construction of the
Sutlej Yamuna Link canal seeking the court’s opinion on the Punjab
Government’s enactment of the Punjab Termination of Agreement Act 2004.
In his reference President A.P.J. Abdul Kalam sought to know whether (a)
Act is constitutionally valid (b) really discharges the State Government from
the water agreements, (c) it affects the agreement on sharing of the waters of
the—Ravi, Beas and Sutlej among Punjab, Haryana, Rajasthan and
Himachal Pradesh.

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  Opinions of the Court in the above cases are enough to prove the beneficent
results of an advisory jurisdiction. “So long as the independence and
integrity of the judiciary can be maintained intact, and at the same time it
can materially contribute to the lessening of the evils of enormous litigation,
advisory opinions are eminently worth-while…Advisory opinions are a help
to preventing litigation or reducing it to a considerable extent.”

 Jurisdiction Enhanced:
 With the passage of time, jurisdiction of the Apex court has enhanced. In the
enhanced jurisdiction we may refer to the appeals which can be taken to the
Supreme Court under the representation of the People Act, Monopolies and
Restrictive Trade Practices Act, Advocates Act, Contempt of Court Act,
Customs Act, Central Excise and Salt Act, Terrorist Affected Areas Act
1984 and Terrorist and the Disruptive Activities Act, 1985. Election Petition
under Part III of the Presidential and Vice Presidential Election Act (1952)
can be filed directly in the Supreme Court.

 42nd 43rd Amendments and a Curb on the, Apex Courts Jurisdiction:

 The jurisdiction of the Supreme Court was curtailed to some extent by 42nd
Amendment Act, 1976.
 However part of such curtailment was undone by the 43rd Amendment Act
1977. Articles 32 A and 144A were repealed.

 Still some of the provision of the amendments could not be undone by the
then Janata Government at the Centre as the Congress opposed their move in
the Rajya Sabha viz.,
 Articles 323A-323B which deprived Supreme Court of jurisdiction and
Article 368(4)-5 which prevented the Supreme Court from invalidating any
Constitutional Amendment—the basic feature of the Constitution.
 These clauses were in fact emasculated by the Apex court itself, as they
violated basic feature of the constitution.

 The functioning of the tribunals constituted under Articles 323A and 323B
of the Constitution, proved exasperating.
 Hence in ‘Chandra Kumar case’, the Apex court restored partly the
jurisdiction of the High Court under Articles 226 and 227 and downgraded
the role of tribunals from ‘substitutional’ to ‘supplemental’ to the High
Courts. The person aggrieved by the decision of the tribunal will not directly
go to the Apex court.
 They have to appeal first to the High Court.
 This amounts to the curtailment of its own jurisdiction under Article 136 and
adding to the prestige and authority of High Court vis-a-vis tribunals.

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A Court of Record:
 Article 129 makes the Supreme Court ‘a Court of Record.’
 The significance of such a Court is two-fold; (i) Its records are retained for
perpetual memory and testimony. (ii) Once a Court is deemed to be a Court
of Record,
 its power to punish for contempt follows from that position.
 The Constitution has, however, specifically made a provision empowering
the Supreme Court to punish for contempt of itself.

 In the words of Dr. Ambedkar, “…the Court of a Record is a Court, the

records of which are admitted to be of evidentiary value and they are not to
be questioned when they are produced before any Court. As a matter of fact,
the power to punish for contempt necessarily follows from that position…”

Court of Rules:
 According to Article 145, the Supreme Court is fully authorized with the
approval of the President and subject to any legislation by the Parliament, to
frame rules for regulating the practice and procedure of the court.

Guardian of Fundamental Rights:

 The Supreme Court is also the guardian of the liberties and Fundamental
Rights of citizens.
 Article 32 (i) specifies the writ jurisdiction of the Supreme Court.
 The Article lies down that any person whose rights are abrogated or affected
adversely can move the Supreme Court by appropriate proceedings for their
enforcement.

Q.7. POWER OF PRESIDENT.

Executive Powers of President (Article 77):

The power to appoint
 Prime Minister and Council of Ministers.
 Judges of Supreme Court and High courts.
 Governors of States.
 Attorney-general.
 Comptroller and Auditor-general.
 Chairman and members of UPSC.
 Members of finance commission and official commissions.
 Special officer for SC & ST
 Special officer for linguistic minorities
 Also, the power to remove above-mentioned officials from their post subject
to prescribed procedure.
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  The President has to exercise executive powers on the advice of Council of
ministers.

Military powers of President:

 The President is the supreme commander of the defence forces of the
country.
 President has the powers to declare war and peace.
 The exercise of military powers by President can be regulated or controlled
by the parliament.
 The military power of President is subordinate to his executive powers.
Diplomatic powers of President:
 President can send and receive Ambassadors & other diplomatic
representatives.
 Can negotiate and conclude treaties & international agreements subject to
ratification by parliament.

Legislative powers of President:

 To summon & prorogue parliament.
 Can dissolve Lok Sabha.
 Article 85(1) restriction- has to summon within 6 months from last sitting.
Article 108- can summon joint session of parliament if conflict between two
houses over ordinary bills.
 Address house at commencement- lays down general policy of government.
 Article 111- Assent of President on every bill
 Cannot withhold assent on money bill
 Other bills may return to house for consideration. Second time has to pass
bill.
 Article 3- Recognition of new state, alteration of boundaries- Presidential
recommendation necessary prior to introduction.
 Bills- restriction on trade & commerce require prior presidential
recommendation.
 Nomination power- 12 members to Rajya Sabha & 2 members to Lok Sabha
(Anglo Indian community).

Ordinance-making power (Article 123):

 The ordinance making power has been vested in the President to deal with
unforeseen or urgent matters.
 An ordinance can be issued only when both the houses of parliament are not
in session.
 An ordinance promulgated under Article 123 is a law having the same force
and effect as an Act of parliament.
 An ordinance cannot violate the fundamental rights.

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  However, such ordinances, must be laid before both houses of parliament
and shall cease to operate at the expiry of six weeks from the date of
reassembly of parliament, unless a resolution disapproving it is passed by
both houses before expiration of six weeks.
 The ordinance making power is exercised by the president on his own
‘satisfaction’ but in reality, it is the cabinet on whose advice the President
exercises his ordinance making power.
 The ordinance making power of President is co-extensive with the
legislative power of parliament.

Case laws: R.K. Garg v. Union of India

 The President is competent to issue an ordinance amending or altering
the tax laws (Special bearer bonds immunities & exemptions) ordinance,
1981, was not ultra vires of Article 123 of the Constitution.

Case laws: A.K. Roy v. Union of India

 National security ordinance was valid. The ordinance shall be subject to
the test of vagueness, arbitrariness & reasonableness.

Case laws: D.C. Wadhwa v. State of Bihar

 Abuse of ordinance making power.
 The court pointed out that between 1967 to 1981, Bihar Governor
promulgated 256 ordinances and all these were kept alive by re-
promulgation from time to time.
 Out of these 256, 69 were re-promulgated with prior permission of
President. The court called it ‘subversion of democratic process’ and held
that it is unconstitutional.

Pardoning power:
 Pardon means to forgive.
 It is an act of grace which exempts an individual from punishment for the
offence he committed.
 Granting pardon to the criminal brings him to the original position of
innocence as if he had never committed the offence.
 The pardoning power is exercised for public welfare which is the legal
object of the punishment and it will be promoted by suspension of sentences.
 Pardon may help to save an innocent person from punishment due to
miscarriage of justice.
 The hope of being pardoned acts as an incentive for the offender to behave
in good manners in the prison institution.
 The object is to correct possible judicial errors as no judicial administration
system can be free from imperfections.

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  Under Article 72, President has the power to grant pardons, reprieves,
respites, commute or remissions of punishment for an offence by: By
Court Martial
 An offence against any law relating to a matter to which executive power of
the union extends
 In which there is death sentence
 Commutation means substitution of one form of punishment for another of
lighter character.
 Remission means reduction of the sentence without changing its character.
 Respite means awarding lesser punishment on some special ground e.g.
Pregnancy.
 Reprieve means temporary suspension of death sentence.
Granting of pardon may be of two kinds:
i. Absolute pardon
ii. Conditional pardon
 Absolute pardon- Absolute pardon blot out the guilt.
 The criminal is released permanently without reducing any condition.
 Conditional pardon- Offender is released subject to certain conditions.
 The breach of these conditions will lead to revival of his sentence and shall
be subjected for the unexhausted portion of his punishment.

Procedure
 Petition/application is sent to secretariat.
 Forwarded to ministry of home affairs for comments or recommendations.
 Then petition/application along with such recommendations submitted to
President for final decision.
 President examines the advice and if agrees, acts accordingly.
 If disagrees, then he will send disagreement notes to home ministry.
 However, the pardoning power is exercised through the advice of Council of
ministers.

Case Laws: Kuljeet Singh v. Lt. Governor of Delhi (Guidelines)

 Ranga and Billa – Petitioners were murderers of two innocent children and
session court awarded death sentence and High court confirmed the same.
 Special Leave petition under Article 136 against high court judgement was
dismissed by Supreme Court.
 Mercy petition presented to President was rejected without assigning any
reasons.
 Petitioners contended that power under Article 72 is coupled with duty
which must be exercised fairly and reasonably.
 The court said that the court did not know whether government of India has
formulated any guidelines or uniform standard by which the exercise of this
power was in fact guided.

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  The court further held that this was not the appropriate case in which the
question of laying down the guidelines would arise.

Case law: Sher Singh v. State of Punjab (Disposal of Petition)

 In this case, there was an inordinate delay of disposal of writ-petition for the
commutation of death sentence into life imprisonment.
 It was held that mercy petitions under Article 72 & 161 or under sections
432 & 433 of Cr. P. C. must be disposed expeditiously.
 Chandrachud, C.J. said that such petitions must be disposed within 3 months
from the date when it is received.

Case law: Kehar Singh v. Union of India (Nature of Pardoning power)

 The petitioner Kehar Singh murdered PM Indira Gandhi and was sentenced
to death which was confirmed by High Court and Supreme Court also
dismissed his appeal.
 President also rejected his mercy petition without going into merits of the
decision of the Supreme Court.
 The Court held that it is open to the President to scrutinize the evidence and
come to different conclusion.
 The President does not amend or supersede the judicial record. Judicial
record will remain intact.
 The Court need not specify in detail the guidelines for the pardoning power
exercise because this power is of the “wildest amplitude”. The President
cannot be asked to give reasons for the order.

Q.8. TRADE COMMERCE AND INTERCOURSE.

Trade, Commerce and Intercourse

 Free movement and exchange of goods throughout the territory of India is
essential for economy of the country.
 Prior to the new constitution, there were custom barriers between the states.
 Thus the main object of Article 301 was to breakdown the barrier between
the state and encouraging the free flow of trade and commerce throughout
the territory of India.
 Article 301 includes freedom of inter-state and intra-state.
 Article 301 will be violated where restrictions are imposed at the frontier of
state. But the freedom guaranteed by Article 301 is not absolute freedom i.e.
it is subjected to restrictions contained in Article 302 to 305.
 Restrictions from which the freedom is guaranteed should be such
restrictions which directly and immediately restrict the free flow of
movement of trade.
 Hence, it is violative. But incidental or indirect restriction is not violative.
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  Trade- Buying or selling of goods.
 Commerce- includes all form of transportation such as land, air or water.
Intercourse- movement of goods from one place to another.
 There is a clear distinction between law interfering with freedom to trade
and law imposing rules for proper conduct or due manner for carrying out
the trade.
 A purely regulatory and compensatory law cannot be regarded as violative
of freedom of trade and commerce for eg. Traffic regulations, licensing of
vehicles, tax or toll for use of road or bridge, etc.

Case laws: Atiabari Tea co. v. State of Assam

 The validity of Assam Taxation Act of 1954 was challenged on the ground
that it violated Article 301 and was not saved by Article 304(b).
 While passing through Assam the tea was liable to tax under the said Act.
 SC held that the impugned law undoubtedly levied a tax directly and
immediately on the movement of goods and therefore came within the
purview of Article 301.
 The Act was, therefore, held void.
 The court said that taxes may and do amount to restrictions if they directly
and immediately restrict trade.
 Automobile Transport Ltd. v. State of Rajasthan
 The validity of Rajasthan Motor Vehicles Taxation Act, 1951 was
challenged, inter alia, as violating Article 301.
 The state government imposed a tax on all motor vehicles used and kept
within the state.
 The court held the tax as valid as they were only regulatory measures
imposing compensatory taxes-for facilitating trade, commerce and
intercourse.
 A compensatory tax is not a restriction upon the movement part of trade and
commerce.
 The majority judgement in the Atiabari’s case read with a majority judgment
in the Automobile’s case lead to the following principles relating to Article
301:
a. Article 301 assures freedom of inter-state as well as intra-state
trade, commerce and intercourse.
b. Trade, commerce and intercourse have the widest connotation and
take in movements of goods and persons.
c. The freedom is not only from laws enacted in the exercise of the
powers conferred by the legislative entries relating to trade and
commerce or production, supply and distribution of goods, but also
to all laws including tax laws.

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 d. Only those laws whose direct and immediate effect to inhibit or
restrict freedom of trade or commerce will come with mischief of
Article 301.
e. Laws which are merely regulatory or which impose purely
compensatory taxes, and hence intended to facilitate freedom of
trade, are outside the scope of Article 301.

Case law: M/s. Video Electronics Pvt. Ltd. v. State of Punjab

 In this case, the petitioners contended that the manufacturers of local goods
were entitled to the exemptions while the manufacturers of other states were
liable to pay tax and thus it violates Article 301.
 The court ruled that the notification issued by the state of U.P. under U.P.
Sales Tax Act, 1948 and Central Sales Tax Act, 1956 exempting local
manufacturers is not violating Article 301 because this exemption was for
providing incentive to the local manufacturers.
 M/s. B.R. Enterprises v. State of U.P.
 The validity of the Lotteries Act, 1998 passed by Parliament was challenged.
 The state of U.P had passed an order banning the lotteries of other states by
virtue of power entrusted under section 5 of the said Act.
 It was contended that section 5 of the said Act and the rules made are
violating Article 301.
 The SC held that lottery contains elements of chance which makes the
lottery a gambling.
 Sale of lottery tickets even through the state cannot be analysed as trade and
commerce. Even if it is analysed, it cannot be given the status of ‘trade and
commerce’ as understand in general scenario.
 Hence, the Act and order is not violative of Article 301.

Restrictions on Trade and Commerce

Article 302
 Parliament’s power to regulate trade and commerce in public interest.
 Parliament can restrict the freedom of trade and commerce between
interstate or intrastate for public interest.
 Parliament has the sole power to decide which restrictions are imposed in
the public interest.
Article 303(1)
 Parliament shall not have power to make any law giving preference to one
state over another.
Article 303(2)
 Parliament may discriminate among the states if it is necessary to do so for
dealing with situation arising due to scarcity of goods.
Article 304(a)

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  State can impose any tax on goods imported from other state if similar goods
in the state are subject to similar tax.
Article 304(b)
 A law passed by state to regulate interstate trade and commerce must satisfy
the following conditions:
a) Previous sanction of the President must be obtained
b) The law must be in public interest
c) Restrictions imposed by such law must be reasonable
d) Therefore it can be seen that Parliament has wide powers to regulate
trade and commerce.

Article 305
 It saves existing laws and laws providing for state monopolies subject to
direction of the President.

Q.9. DISCUSS WITH THE SETTLED CASE LAWS THE

PROTECTION AGAINST ARBITRARY REMOVAL,
DISMISSAL OR REDUCTION IN RANK.(ART.311)

Article 311 states that

“Dismissal, removal or reduction in rank of persons employed in civil capacities
under the Union or a State

 No person who is a member of a civil service of the Union or an all India

service or a civil service of a State or holds a civil post under the Union or a
State shall be dismissed or removed by a authority subordinate to that by
which he was appointed.

 No such person as aforesaid shall be dismissed or removed or reduced in

rank except after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in respect of
those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such
penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and it shall not be necessary to give such person any opportunity of
making representation on the penalty proposed: Provided further that this clause
shall not apply –
 where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge; or

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  where the authority empowered to dismiss or remove a person or to
reduce him in rank ins satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably practicable to hold
such inquiry; or
 where the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the State, it is not expedient to
hold such inquiry.

 If, in respect of any such person as aforesaid, a question arises whether it is

reasonably practicable to hold such inquiry as is referred to in clause ( 2 ),
the decision thereon of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final.”

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

311, so the field covered by Article 311 is excluded from the operation of the
doctrine of pleasure. The pleasure must be exercised in accordance with the
procedural safeguards provided by Article 311. Under Indian Constitution several
restrictions has been placed on Doctrine of Pleasure. They are as follows:
 The service contract entered between the civil servant and
government may be enforced.
 The fundamental rights guaranteed under the constitution are
restrictions on the pleasure doctrine and therefore this doctrine
cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of
the Constitution imposed limitations on free exercise of Pleasure
Doctrine.[xxii]Article 14 embodies the principle of reasonableness
the principle of reasonableness is anti-thesis of arbitrariness. In this
way, Article 14 prohibits arbitrary exercise of power under
pleasure doctrine. In addition to article 14 of the constitution
Article 15 also restricts arbitrary exercise of power in matters of
services. Article 15 prohibits termination of service on grounds of
religion, race, caste, sex or place of birth or any of them. Another
limitation is under Article 16(1) which obligates equal treatment
and bars arbitrary discrimination.
 Further the doctrine of pleasure is subject to many more limitations
and a number of posts have been kept outside the scope of pleasure
doctrine. Under the constitution the tenure of the Judges of the
High Courts and Supreme court, of the comptroller and Auditor-
General of India, of the Chief Election Commissioner and the
Chairman and Members of Public service commission is not at the
pleasure of the Government. Thus, the general principle relating to
civil services has been laid down under Article 310 of the
Constitution to the effect that government servants hold office
during the pleasure of the government and Article 311 imposes
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 restrictions on the privilege of dismissal at the pleasure in the form
of safeguards.

Application of Article 311

 The most notable point is that Article 311 is available only when ‘dismissal,
removal, reduction in rank is by way of punishment.’
 So it is difficult to determine as to when an order of termination of service or
reduction in rank amounts to punishment in case of Parshottam Lal
Dhingra v. Union of India.
 The Supreme Court laid down 2 tests to determine when termination is by
way of punishment
 Whether the servant had a right to hold the post or the rank?
 Whether he has been visited with evil consequences?
 If a government servant had a right to hold the post or rank under the terms
of any contract of service, or under any rule, governing the service, then the
termination of his service or reduction in rank amounts to a punishment and
he will be entitled to protection under Article 311. Articles 310 and 311
apply to Government servants, whether permanent, temporary, officiating or
on probation.

 The procedure laid down in Article 311 is intended to assure, first, a

measure of tenure to government servants, who are covered by the Article
and secondly to provide certain safeguards against arbitrary dismissal or
removal of a government servant or reduction to a lower rank.
 These provisions are enforceable in a court of law. Where there is an
infringement of Article 311, the orders passed by the disciplinary authority
are void ab-initio and in the eye of law “no more than a piece of waste
paper” and the government servant will be deemed to have continued in
service or in the case of reduction in rank, in his previous post throughout.
 Article 311 is of the nature of a proviso to Article 310. The exercise of
pleasure by the President under Article 310 is thus controlled and regulated
by the provisions of Article 311.

Civil Post
 The protective safe guards given under Article 311 are applicable only to
civil servants, i.e. public officers. They can be dismissed from service
without assigning any reason.
 They are not available to defence personnel. In State of U.P. vs. A.N. Singh,
the Supreme Court has held that a person holds a civil post if there exists a
relationship of master and servant between the State and the person holding
the post.

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  The relationship is established if the State has right to select and appoint the
holder of the post, right to control the manner and method of his doing the
work and the payment by it of his wages or remuneration.

Dismissal and Removal

 The protection under Article 311(2) is available only where dismissal,
removal or reduction in rank is proposed to be inflicted by way of
punishment and not otherwise.
 ‘Dismissal’ and ‘removal’ are synonymous terms but in law they acquired
technical meanings by long usage in Service Rules.
 There is, however, one distinction between the ‘dismissal’ and ‘removal’,
that is, while in case of ‘dismissal’ a person is debarred from future
employment, but in case of ‘removal’ he is not debarred from future
employment.

Temporary Employees And Probationers

 In State of Punjab & Anr. v. Sukh Raj Bahadur, the Supreme Court laid
down the following principles regarding the applicability of Article 311 to
temporary servants and probationers.

 The services of a temporary servant or a probationer can be terminated under

the rules of his employment and such termination without anything more
would not attract the operation of Art. 311 of the Constitution.
 The circumstances preceding or attendant on the order of termination of
service have to be examined in each case, the motive behind it being
immaterial.
 If the order visits the public servant with any evil consequences or casts an
aspersion against his character or integrity, it must be considered to be one
by way of punishment, no matter whether he was a mere probationer or a
temporary servant.
 An order of termination of service in unexceptionable form preceded by an
enquiry launched by the superior authorities only to ascertain whether the
public servant should be retained in service, does not attract the operation of
Art. 311 of the Constitution.
 If there be a full-scale departmental enquiry envisaged Art. 311 i.e. an
Enquiry Officer is appointed, a charge sheet submitted, explanation called
for and considered, any order of termination of service made thereafter will
attract the operation of the said Article.

Termination of Service When Amounts To Punishment

 The protection under Art. 311 is available only when the dismissal, removal
or reduction in rank is by way of punishment In Parshotham Lal Dhingra

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 v. Union of India, the Supreme Court has laid down two tests to determine
whether termination is by way of punishment
 Whether the servant had a right to hold the post or the rank (under the
terms of contract or under any rule)
 whether he has been visited with evil consequences. If yes, it amounts
to punishment.

Compulsory Retirement
 Compulsory retirement simpliciter is not punishment.
 It is done in ‘public interest’ and does not caste a stigma on the Government
servant. So the employee cannot claim an opportunity to be heard before he
is compulsorily retired from service.
 The Supreme Court of India has issued certain guidelines regarding
compulsory retirement.
 In State of Gujarat v. Umedbhai M. Patel, the Court laid down the
following principles:
1. When the Service of a public servant is no longer useful to the
general administration, the officer can be compulsorily retired in
public interest.
2. Ordinarily the order of compulsory retirement is not to be treated
as a punishment under Art. 311 of the Constitution.
3. For better administration, it is necessary to chop off dead wood
but the order of compulsory retirement can be based after having
due regard to the entire service record of the officer.
4. Any adverse entries made in the confidential record shall be taken
note of and be given due weight age in passing such order. Even
excommunicated entries in the confidential report can also be
taken in to consideration.
5. The order of compulsory retirement shall not be passed as a short
cut to avoid departmental inquiry when such course is more
desirable.
6. If the officer is given promotion despite adverse entries in the C.
R., that is a fact favour of the officer.
7. Compulsory retirement shall not be imposed as a punitive
measure.

 In Baikunth Nath v. Chief Medical Officer, the Court issued further

clarifications regarding compulsory retirement.
1. An order of compulsory retirement is not a punishment. It implies
no stigma.
2. The order has to be passed by the Govt. in public interest. The
order is passed on the subjective satisfaction of the Govt.

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 3. Principles of natural justice have no place in the context of an
order of compulsory retirement. However courts will interfere if
the order is passed mala fide or there is no evidence or it is
arbitrary.
4. The Govt. shall have to consider the entire record of service
before taking a decision in the matter particularly during the later
years’ record and performance.
5. An order of compulsory retirement is not liable to be quashed by
a Court merely on showing that while passing it excommunicated
adverse remarks were taken in to consideration. The
circumstances by itself cannot be a basis for interference.

Q.9. DISCUSS ANTI DEFECTION LAW.

Anti-defection law
 Defection causes government instability. Defection is undemocratic.
 A political party which fails to get majority in the house through election yet
may form the government through the defected members from other party.
 Thus the party which wins the majority through election still fails to form
the government because of few members defected from the party.
 The member may change his political party because he may consciously
disagree with the policies of the party to which he belongs.
 In such case, if he leaves the party then he has to resign from his
membership and seek fresh election. But such principled defection is rare.
 Most of the defections take place out of selfish motive as to appointment in
Council of Ministers.
 It was realised that if the evil of defection is not controlled, then it would
injure the very foundation of democracy. Therefore, it was necessary to
enact the law regarding defection.
 The 10th schedule, popularly known as the Anti-defection Act was
introduced in 52nd Amendment Act, 1985.
 It sets the provisions for disqualification of elected members on the grounds
of defection to another political party.

Grounds for Disqualification

If the member of the political party
 Voluntarily resigns from his political party
 Votes or does not vote-contrary to the direction of his political party

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  However, if the member has taken prior permission or is condoned by the
party within 15 days from such voting or abstention, then he shall not be
disqualified.
 If an independent candidate joins any political party after the election.
 If a nominated member joins a party six months after he becomes a member
of the legislature.

Split and Merger

 If at least one-third members of the legislative party decided to form or join
another political party, it was recognised as ‘split’.
 91st Amendment Act, 2003, didn’t recognised split- omitted para 3.

Exception (Merger)
A person shall not be disqualified-
 If his original party merges with another and he & other members of the old
political party become members of new political party.
 He and other members do not accept the merger and opt to function as a
separate group.
 This exception shall operate only if not less than 2/3 of the members of party
in the house have agreed to the merger.

Exemption
 Notwithstanding anything contained in this schedule, a person who has
elected to the office of-
 Speaker or deputy speaker of the house of people
 Deputy chairman of the council of states
 Chairman or deputy chairman of legislative council of a state
 Speaker or deputy speaker of the legislative assembly of a state
 Shall not be disqualified under this schedule
 If he, by reason of his election to such office, voluntarily gives up the
membership of the political party to which he belonged immediately before
such election and does not, so long as he continues to hold such office
thereafter, re-join that political party or become a member of another
political party.

Power to disqualify
 The chairman or the speaker of the house takes the decision to disqualify a
member.
 If a complaint is received with respect to the defection of the chairman or
speaker, a member of the house elected by that house shall take the decision.

Bar of Jurisdiction of courts

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  Notwithstanding anything in this constitution, no court shall have any
jurisdiction regarding disqualification of a member of house under this
schedule.
 But in Kihoto Hollohan case, this para was struck down by Supreme Court.
 In this case, Manipur speaker disqualified 5 members of house on the
ground of defection.
 The Supreme Court held that function of speaker regarding Anti-defection
law is like that of tribunal and therefore it is open to judicial review.

Power to make rules

 The chairman or the speaker has the authority to make rules for giving
effects to the provisions of this schedule.
 A reasonable opportunity to be heard must be allowed to the member.
 Speaker may refer the case to inquiry committee.
 This process takes time so the defection does not have any immediate effect.

Advantages
 Provides stability to the government by preventing shifts of party allegiance.
 Ensures that candidates elected with party support and on the basis of party
manifestoes remain loyal to the party policies. Also promotes party
discipline.

Disadvantages
 By preventing parliamentarians from changing parties, it reduces the
accountability of government to the parliament and the people.
 Interferes with the member’s freedom of speech and expression by curbing
dissent against party policies.

Case laws
Ravi Naik v. Union of India
 In this case, the issue was whether only registration constitutes voluntarily
giving up membership of a political party.
 It was held that an inference can also be drawn from the conduct of the
member that he has voluntarily given up the membership of his party.

G. Vishwanathan v. Speaker TN, legislative assembly

 In this case, the issue was whether a member cab be said to voluntarily give
up his membership of a party if he joins another party after being expelled
by his old political party.

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  It was held that once a member is expelled, he is treated as ‘independent’
member in the house. But as per 10th schedule he continues to be the
member of old party.
 So if he joins a new party after expulsion, it can be said that he has
voluntarily given up membership of his old party.

Kashinath v. Goa legislative assembly

 In this case, the issue was whether a speaker can review his own decision to
disqualify a member under 10th schedule.
 It was held that the speaker of the house does not have the power to review
his own decision regarding the matters of anti-defection law.

Avtar Singh Bhadana v. Shri Kuldeep Singh

 The INC alleged that Shri Bishnoi often dissented from and criticized the
congress government publicly, and had demanded the dismissal of
government in Haryana.
 It was held that stories in the print or electronic media can be taken as
evidence of defection.

Q.10.PARLIAMENTRY PREVILEGES.

Parliamentary Privileges
 After the 44th Amendment, Article 105 provides that regarding the power,
privileges and immunities of each house of parliament and members thereof,
shall be such as define by parliament from time to time, and until so defined
it shall be those as they were before the 44th Amendment.
 Article 105(1): Powers, Privileges, etc. of the house and members thereof
subject to the provisions of the constitution and rules, and there shall be
freedom of speech in parliament.
 Article 105(2): provides that no member of parliament shall be liable to any
proceeding regarding the publication by/under the authority of either house,
any report, paper, votes or proceeding. P.V. Narsimha Rao v. State
 Supreme Court held that the privilege of immunity from court in Article
105(2) extends even to bribes taken by the members of parliament for the
purpose of voting in a particular manner.
 But the MPs who had given or take bribe and not participate in voting were
not entitled to the protection.
Other privileges
Freedom from Arrest
 A member of parliament cannot be arrested on civil proceedings within the
period of 40 days before and 40 days after the session of parliament.
 This protection does not extend to arrest on criminal charge or for contempt
of court.
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Right to exclude strangers from its proceedings and hold secret sessions
 However, secret session can be held only in exceptional cases because
the voters must be kept informed that what their representatives are
doing.
Right to prohibit the publication of its report and proceedings
 In the famous searchlight case, the Supreme Court held that the
publication of expunged portion of speech amounts to breach of privilege
of the house.
Right to regulate internal proceedings
 The house has an exclusive right to regulate its own internal proceedings
and to adjudicate upon such matters. The court will not interfere.
Right to punish members or outsiders for contempt
 The house has the power to punish person whether the members or
strangers for the contempt of privilege.
 This power is described as ‘keystone of Parliamentary Privilege’.

Privileges and the court

Re under Article 143
 Keshava Singh who was not the member of the U.P. assembly was held
guilty for contempt of the house and sentenced to imprisonment for 7 days.
 Then his advocate filed the habeas corpus petition arguing the illegal
detention because he was not given an opportunity to defend himself.
 Then the HC granted him interim bail.
 The assembly passed the resolution that HC judges, Keshawa Singh and his
advocate had committed the contempt of house.
 So the two judges and advocate shall be bought into custody before the
house.
 Later, two judges and the advocate filed a petition under Article 226 arguing
that resolution amounts to contempt of the court.
 HC passed an interim order directing the stay of resolution of assembly.
 The arrest warrant against the two judges was withdrawn.
 However they were ordered to appear before the house and to explain about
their conduct.
 At this stage, the president had referred the matter to the Supreme Court
under Article 143 for its advisory opinion.
The main question was
 Whether the legislature is competent to punish the person for the
contempt of house taking place outside of the legislature.
 Whether the HC (who entertains habeas corpus petition) had
committed the contempt of the house.

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  The SC held that the two judges were not guilty of contempt of house by
issuing interim bail order.
 Under Article 226, HC has jurisdiction to order the release person from
illegal detention.
 SC further held that Article 121 prohibits any discussion in the state
legislature regarding the conduct of the judges of SC and HC in discharging
their duties.
 SC further held that interpretation of nature and scope of Article 194 (3) lies
within the court because interpretation of constitution is a judicial function
including the interpretation of parliamentary and state legislature privilege.

Q.11.COALITION FORM OF GOVERNMENT.

Coalition from of government
 A Coalition government is a cabinet of a parliamentary government in which
many or multiple political parties cooperate, reducing the dominance of any
one party within that coalition.
 The usual reason for this arrangement is that no party on its own can achieve
a majority in the parliament.
 A coalition government might also be created in a time of national difficulty
or crisis (for example, during wartime or economic crisis) to give a
government the high degree of perceived political legitimacy or collective
identity it desires while also playing a role in diminishing internal political
strife. In such times, parties have formed all-party coalitions (national unity
governments, grand coalitions).
 If a coalition collapses, a confidence vote is held or a motion of no
confidence is taken.
Advantages
 Enlarges your base of support, networks and connections; gives strength in
numbers: you can achieve more together than you can alone.
 Provides safety for advocacy efforts and protection for members who may
not be able to take action alone, particularly when operating in a hostile or
difficult environment.
 Magnifies existing financial and human resources by pooling them together
and by delegating work to others in the coalition.
 Reduces duplication of effort and resources.
 Enhances the credibility and influence of an advocacy campaign, as well as
that of individual coalition members.
 Helps develop new leadership skills amongst members.
 Assists in individual and organizational networking.
 Facilitates exchange of information, skills, experience, materials,
opportunities for collaboration etc.

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  Brings together a diverse range of people and organizations. Diversity can
strengthen a campaign by broadening perspective and understanding of the
issue.
 It can also assist outreach by appealing to a wider population base with
differing priorities and interests.
 Provides peer support, encouragement, motivation and professional
recognition.

Disadvantages
 Can lack clear objectives, or be difficult to agree common objectives.
 Forming and managing a coalition can be a very time-consuming and
bureaucratic process that can take away time from working directly on
campaign issues and organizational tasks.
 May be dominated by one powerful organization. Power is not always
distributed equally among members; larger or richer organizations can have
more say in decisions.
 May require you to compromise your position on issues or tactics.
 Shared decision-making can be slow and may paralyze progress.
 Can often be constrained by a lack of resources.
 Potential for donor interference (e.g. a donor is interested in funding certain
activities but there is a danger of planning activities only because you know
you can get the funds).
 You may not always get credit for your work. Sometimes the coalition as a
whole gets recognition rather than individual members.
 Or certain members get or claim more recognition than others, causing
conflict and resentment.
 If the coalition process breaks down it can harm everyone's advocacy by
damaging members' credibility.
 Coalition activities can be difficult to monitor and evaluate.

Q.12. DOCTRINE OF COLLECTIVE RESPONSIBILITY.

Doctrine of Collective responsibility [Article 75(3)]:
 The principle of collective responsibility may be regarded as fundamental
for the working of parliamentary form of government.
 The principle of collective responsibility means that the Council of Ministers
are responsible as a body for the general conduct of the affairs of the
government.
 All Ministers stand for (support) or fall together in parliament.
 Thus, the principle of collective responsibility secures the unity of the
cabinet and COMs.
 Each minister is responsible for the cabinet decision.
 Ministers have to support the policies and programmes of the cabinet even if
there are differences in opinion.
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  A Minister cannot disown responsibility so long as he is minister. So he
cannot oppose cabinet decision or cannot be neutral at same time.
 A minister who does not agree with PM or cabinet has only one alternative,
that is, to resign from cabinet.
 A former minister must not reveal cabinet secrets.

Minster’s individual responsibility

 Every Minister is responsible for the acts of the officers of his department.
 He has to answer question regarding the affairs of his department in
parliament.
 He cannot throw the responsibility of his department either on his officials
or another minister.
 If the minister has taken action with the approval of officers of his
department, principle of collective responsibility applies and the whole
cabinet should support and defend his actions.
 But, if the minister has taken action without the approval, the cabinet may or
may not support him.
 If the cabinet does not support him, then the minister has to go and not the
whole cabinet.
Q.13. GOLAK NATH CASE.

Golaknath Case
FACT
 The immediate facts of the case were that the family of one William Golak
Nath had over 500 acres of property in Punjab.
 Acting under Punjab Security and Land Tenures Act, 1953 which was
placed in 9th Schedule by the 17th Constitutional Amendment Act, 1964 the
state government intimated to petitioner that he can now only possess 30
acres of land & rest will be treated as surplus.

PETITIONER’S ARGUMENTS
 The Constitution of India as drafted by the Constituent Assembly is of
permanent nature and no act which changes or tries to bring about a change
is constitutional.
 The word ‘amendment’ only implies a change in accordance with the basic
idea & not altogether a new idea.
 The Fundamental rights as provided under Part III cannot be taken away by
an act of parliament of whatsoever nature because they are the essential &
integral part of the Constitution without which Constitution is like a body
without a soul.
 Article 368 only defines the procedure for amending the Constitution. It
does not grant the power to parliament to amend the Constitution.

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  Article 13(3)(a) in its definition of “law” will cover all types of law i.e.
statutory or constitutional etc.
 in its ambit therefore by the virtue of Article 13(2), any constitutional
amendment violative of Part III will be unconstitutional.

RESPONDENT’S ARGUMENTS
 Constitutional Amendment is a result of the exercise of sovereign power &
this exercise of sovereign power is different from the legislative power
which Parliament exercises to make laws.
 The very object of the amendment is to change the laws of the nation as per
the changing needs of the society. The absence of such provision would
result in Constitution becoming too rigid.
 There is no hierarchy in the Constitutional provisions as basic or non-basic
and all the provisions are of equal importance and equal status.
 Most of the amendments being the answers to political questions, they are
outside the ambit of judicial scrutiny.

JUDGMENT
 The Apex court with the largest bench that had ever sat on an issue till that
time arrived at a 6:5 majority favouring Petitioners.
 The majority opinion of Golaknath reflects the uneasiness & scepticism in
their minds about the then course of Parliament.
 Since 1950’s Parliament through invoking Article 368 have passed
numerous legislation that had in one pretext or another violated populous’
FR’s.
 The majority was doubtful that if Sajjan Singh remained law of the land,
then a time could come when all the FR’s adopted by our Constituent
assembly will be diluted through amendments and finally extinguished.
 Keeping this probable annihilation of FR’s in mind and fearing the gradual
transfer of Democratic India into Totalitarian India majority overruled
Sajjan Singh & Shankari Prasad.
 Therefore, to check this colourable exercise of power and save Democracy
from autocratic actions of Parliament, the majority held that Parliament
cannot amend Fundamental Rights.
 The majority equated FR’s with Natural Rights and reckoned them as “the
primordial rights necessary for the development of human personality.”
 The majority raised a very serious question over the state that when rights
mentioned under Part III can’t be affected by Parliament’s unanimous bill
then how a simple or special majority can do so.
 On the other hand, the minority opinion followed the earlier law i.e.
Shankari Prasad& Sajjan Singh, thereby holding that parliament has the
power to amend entire Constitution including Fundamental rights.
 Therefore, the minority granted complete autonomy to parliament.

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Q.14. KESHVANAND BHARTI’S CASE.
Keshvananda Bharati v. State of Kerala (Fundamental Right’s case)
 The validity of the 24th Amendment Act, 1971 was challenged.
 The petitioners had challenged the validity of the Kerala Land Reforms Act-
Amendment 1971.
 The question was that what was the extent of the amending power conferred
by Article 368 of the Constitution?
 On behalf of Union of India, it was claimed that amending power is
unlimited.
 On the other hand, the petitioner contended that amending power is wide but
not unlimited. Under Article 368, parliament cannot destroy the “Basic
Feature” of the Constitution.
 The court overruled the Golak Nath’s case which denied Parliament the
power to amend fundamental rights of citizens.
 Parliament has wide powers of amending the Constitution and it extends to
all Articles, but the amending power is not unlimited and does not include
the power to destroy or abrogate the ‘basic feature’ or ‘framework’ of the
Constitution.
 Certain essential elements of basic structure enumerated in Keshvananda
Bharati case are as under:
 Supremacy of the Constitution
 Republican and Democratic forms of the Governments
 Secular character of the Constitution
 Separation of powers between the Legislature, the Executive and the
Judiciary Federal character of the Constitution

Q.15. OTHER IMPORTANT.

Indira Nehru Gandhi v. Raj Narayan

 In this case, Supreme Court applied the theory of basic structure and struck
down clause (4) of Article 329-A which was inserted by the 39th
Amendment Act, 1975 on the ground that parliament cannot destroy the
basic structure of the Constitution.
 In this case, election of the Prime Minister was set aside.
 Supreme Court held that it violates the free and fair elections which were a
basic postulate of the democracy.
 Thereafter the Supreme Court added following features to the basic structure
of the Constitution:
 Rule of Law
 Judicial Review

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  Democracy,
 which implies free and fair election

42nd Amendment
 Under this Amendment, clause (4) and (5) to Article 368 of the Constitution
were added.
 It was declared that there shall be no limitation on the Parliament’s power to
amend by addition, variation or repeal of the provisions.
 Thus it was cleared in this amendment that even the “basic feature” of the
Constitution could be amended.

Minerva Mills v. Union of India

 The Supreme Court struck down clause (4) and (5) of Article 368 inserted
by 42nd amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the Constitution.
 Limited amending power is a basic structure of Constitution.
 But these clauses removed all limitations which was destructive of the basic
feature of the Constitution.

 The Supreme Court held that the basic features of Constitution includes:
 Limited power of Parliament to amend the Constitution
 Harmony and balance between fundamental rights and directive
principles
 Fundamental rights in certain cases
 Power of judicial review in certain cases
 Independence of Judiciary

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 ADMINISTRATIVE LAW

Examination notes
Q.1. DEFINE ADMINISTRATIVE LAW AND DISCUSS
NATURE AND SCOPE OF ADMINISTRATIVE LAW AND
DISCUSS CAUSES OF GROWTH OF ADMINISTRATIVE
LAW.

 Administrative law is the law that governs the administrative actions.

 As per Ivor Jennings- the Administrative law is the law relating to
administration.
 It determines the organisation, powers and duties of administrative
authorities.
 It includes law relating to the rule-making power of the administrative
bodies, the quasi-judicial function of administrative agencies, legal liabilities
of public authorities and power of the ordinary courts to supervise
administrative authorities.

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  It governs the executive and ensures that the executive treats the public
fairly.
 Administrative law is a branch of public law.
 It deals with the relationship of individuals with the government.
 It determines the organisation and power structure of administrative and
quasi-judicial authorities to enforce the law.
 It is primarily concerned with official actions and procedures and puts in
place a control mechanism by which administrative agencies stay within
bounds.
However, administrative law is not a codified law. It is a judge-made law which
evolved over time.

The growth of Administrative Law.

ENGLAND
 In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of
Administrative law.
 Hence, the numerous statutory discretionary powers given to the executives
and administrative authorities and control exercised over them were all
disregarded to be able to form a separate branch of law by the legal thinkers.
 Until the 20th Century, Administrative law was not accepted as a separate
branch of law.
 It was only later that the existence of Administrative law came to be
recognised.

 The Lord Donoughmore Committee, in 1929, recommended for better

publication and control of subordinate legislation.
 The principle, King can do no wrong, was abolished and the scope of
Administrative law expanded by virtue of the Crown Proceeding Act in
1947 which allowed initiating civil proceedings against the Crown as against
any private person.

 In 1958, Tribunals and Inquiries Act was passed for better control and
supervision of Administrative Decisions.

UNITED STATES OF AMERICA

 In the United States of America, the existence of administrative law and its
growth was ignored until it grew up to become the fourth branch of the
State.
 By then many legal scholars like Frank Goodnow and Ernst Freund had
already authored a few books on Administrative law.

 It was in 1933 that a special committee was appointed to determine how

judicial control over administrative agencies could be exercised.
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  Thereafter, in 1946 The Administrative Procedure Act was passed which
provided for judicial control over administrative actions.

INDIA
 The Mauryans and the Guptas of ancient India had a centralised
administrative system.
 It was with the coming of the British that Administrative law in India went
through a few changes.
 Legislations regulating administrative actions were passed in British India.

 After independence, India adopted to become a welfare state, which

henceforth increased the state activities.
 As the activities and powers of the Government and administrative
authorities increased so did the need for ‘Rule of Law’ and ‘Judicial Review
of State actions’.

 Henceforth, if rules, regulations and orders passed by the administrative

authorities were found to be beyond the authority’s legislative powers then
such orders, rules and regulations were to be declared ultra-vires,
unconstitutional, illegal and void.

Reasons for growth of Administrative law.

The concept of a welfare state
 As the States changed their nature from laissez-faire to that of a welfare
state, government activities increased and thus the need to regulate the same.
Thus, this branch of law developed.

The inadequacy of legislature

 The legislature has no time to legislate upon the day-to-day ever-changing
needs of the society.
 Even if it does, the lengthy and time-taking legislating procedure would
render the rule so legislated of no use as the needs would have changed by
the time the rule is implemented.

 Thus, the executive is given the power to legislate and use its discretionary
powers. Consequently, when powers are given there arises a need to regulate
the same.

The inefficiency of Judiciary

 The judicial procedure of adjudicating matters is very slow, costly complex
and formal.
 Furthermore, there are so many cases already lined up that speedy disposal
of suites is not possible. Hence, the need for tribunals arose.

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Scope for the experiment
 As administrative law is not a codified law there is a scope of modifying it
as per the requirement of the State machinery.
 Hence, it is more flexible. The rigid legislating procedures need not be
followed again and again.

Difference between Administrative law and Constitutional law.

There are significant differences between Administrative law and Constitutional
law.
 A Constitution is the supreme law of the land. No law is above the
constitution and hence must satisfy its provisions and not be in its violation.
 Administrative law hence is subordinate to constitutional law. In other
words, while Constitution is the genus, administrative law is a species.
 Constitution deals with the structure of the State and its various organs.
Administrative law, on the other hand, deals only with the administration.
 While Constitution touches all branches of law and deals with general
principles relating to organisation and powers of the various organs of the
State; administrative law deals only with the powers and functions of the
administrative authorities.
 Simply speaking the administrative authorities should first follow the
Constitution and then work as per the administrative law.

Q.2. DISCUSS RULE OF LAW.

Concept of Rule of Law

 Edward Coke is said to be the originator of the concept of Rule of Law. He
said that the king must be under God and Law.
 Rule of Law is the supreme manifestation of human civilization and culture
and is new ‘lingua franca’ of global moral thought.
 It is an eternal value of constitutionalism and an inherent attribute of
democracy and good governance.
 The term Rule of Law is derived from the French phrase la principe de
legalite. The concept of la principe de legalite was opposed to arbitrary
powers.
 The rule of law is a viable and dynamic concept and like many other such
concepts, is not capable of any exact definition.
 The term Rule of law is used in contradistinction to Rule of Man and Rule
according to law.
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  Aristotle made a difference between procedural justice and moral justice.
Rule of law can be located in moral justice. Thomas Aquinas and St.
Augustine located it in Laws of Gods.
 Hobbe, Locke and Roussueau called it ‘social contract’ or natural law in
which a State is formed only to protect the life, liberty and dignity of the
individual. And the modern man calls it ‘Rule of Law’.
 Rule of Law means that the law rules, which is based on the principles of
freedom, equality, non-discrimination, fraternity, accountability, and non-
arbitrariness and it is certain, regular and predictable.
 It mandates that power must be made accountable, governance progressively
just and equal, and State incrementally ethical.
 The term Rule of Law can be used in two senses:
 Formalistic sense.
 Ideological sense.
 In the Formalistic sense it refers to organized power as opposed to a rule by
one man.

 In the Ideological sense it refers to the regulation of the relationship of the

citizens and the Government.

 The ideological sense of the concept of Rule of Law represents ethical code
for the exercise of public power in any country.
 These postulates include equality, freedom and accountability.
 Equality means to create conditions social, economic and political where
every individual has an equal opportunity to develop his personality to the
fullest and to live with dignity.
 Freedom means absence of every arbitrary action, free speech, expression,
and association, personal liberty, and many others.
 Accountability is that rulers rule with deference of the people, and therefore
must be accountable to the people.

 In this manner the concept of rule of law represents values and not
institutions and connotes a climate of legal order which is just and
reasonable, wherein every exercise of public power is chiefly designed to
add something more to the quality of life of the people.
 Every legislative, executive and judicial exercise of power must, therefore,
depend on this ideal for its validity.
 Rule of law must define law rather than the law defining the Rule of Law.

DICEY FORMULATION OF THE CONCEPT OF ‘RULE OF LAW’.

 Dicey’s formulation of the concept of Rule of Law has three principles.
They are:

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 1. Absence of discretionary power in the hands of the government
officials. Justice must be done through known principles. Discretion
implies absence of rules, hence in every exercise of discretion there is
room for arbitrariness.
2. No person should be made to suffer in body or deprived of this
property except for a breach of law established in the ordinary legal
manner before the ordinary courts of the land as part of Rule of Law.
In this sense, the rule of law implies:
 Absence of special privileges for a Government official or any
other person;
 All the persons irrespective of status must be subjected to the
ordinary courts of the land;
 Everyone should be governed by the law passed by the
ordinary legislative organs of the State.
3. The rights of the people must flow from the customs and traditions of
the people recognized by the courts in the administration of justice.
 The first principle of Dicey’s Rule of Law is the recognition of a cardinal
principle of democratic government as opposed to arbitrary and autocratic
government which lies down that no functionary of the government should
have wide arbitrary or discretionary powers to interfere with the liberty and
freedom of the people.
 He was referring to wide arbitrary and discretionary powers of police of
imprisonment and punishment outside the ordinary legal system.
 The second principle of Dicey’s Rule of Law also enunciates a democratic
principle of equal subjection of all people to the ordinary law of the land as
administered by the ordinary courts.
 He did not mean that all law must be same to all irrespective of functions or
service, but that a Government officer must be under the same liability for
acts done without legal justification as a private individual.
 The third principle of Dicey does not lay down any legal rules but merely
explains one aspect of the British Constitutional system where common law
is the source of fundamental freedoms of the people.
 Dicey feared that if the source of the fundamental rights of the people was
any document, the right could be abolished at any time by amending the
Constitution.

MODERN CONCEPT OF THE RULE OF LAW

 The modern concept of the rule of law is fairly wide, and therefore, set up an
ideal for any government to achieve.
 The modern concept of Rule of Law was developed by the International
Commission of Jurists, known as Delhi Declaration, 1959.
 It was later confirmed at Lagos in 1961.

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  According to the modern concept, the Rule of Law implies that the functions
of the government in a free society should be so exercised as to create
conditions in which the dignity of man as an individual is upheld.
 This dignity requires not only the recognition of certain civil or political
rights but also creation of certain political, social, economical, educational
and cultural conditions which are essential to the full development of his
personality.
 The University of Chicago held a conference (in 1957) on the Rule of Law
as understood in the West.

The secretary of the colloquium described the broad areas of agreement as follows:
1) The Rule of Law is an expression of an endeavor to give reality to
something which is not readily expressible; this difficulty is primarily due to
identification of the rule of law with the concept of rights of man.
2) The Rule of Law is based upon the liberty of the individual and has as its
object the harmonizing of the opposing notions of individual liberty and
public order.
3) There is a difference between: concept of rule of law as the supremacy of
law over the government and the concept of rule of law as the supremacy of
law in society generally.
4) The rule of law does not depend on contemporary positive law.

RULE OF LAW IN INDIA

 In India, concept of Rule of Law can be traced to the Upanishads. Upanishad
provide that ‘Law is the king of kings’.
 The basic concept of the rule of law is not a well-defined legal concept.
 The courts generally would not invalidate any positive law on the ground
that it violates the contents of the rule of law.
 In ADM v/s Shivakant Shukla case popularly known as ‘Habeas Corpus’
case.It challenged the detention orders during the Emergency on the grounds
that it violates the principle of the rule of law as the ‘obligation to act in
accordance with rule of law….is a central feature of our Constitutional
system and is a basic feature of the Constitution.
 In the case of Kesavananda Bharati v/s State of Kerala majority judges of
the Supreme Court opined that Rule of Law is as aspect of doctrine of basic
structure of the Constitution, which even the plenary power of Parliament
cannot reach to amend.
 In Indira Nehru Gandhi v/s Raj Narain, the Supreme Court invalidated
clause (4) of Article 329A, inserted in the Constitution by 39th Amendment
Act, 1975 to immunize the election dispute to the office of the Prime
Minister from any kind of Judicial Review, Khanna and Chandrachud JJ
held that Article 329-A violated the concept of basic structure.

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  In Som Raj v/s State of Haryana, the Supreme Court observed that the
absence of arbitrary power is the first postulate of Rule of Law upon which
the whole constitutional edifice is based. If the power is exercised without
any principle or without any rule, it is a situation amounting to the antithesis
of the rule of law.
 There are various positive and negative facets to the rule of law.
 These are explained by Prof. Upendra Baxi. He believes that power should
not be exercised arbitrarily and this meant that it should be exercised for the
purpose for which it has been conferred.
 Power has to be exercised within the statutory ambit and unsubstantiated
exercise of it would not just be ultra vires, but in the true sense of the term
arbitrary.
 There is also positive side to it.
 These include the rules of natural justice in purely administrative action,
exercise of administrative power be accompanies by reason and fair dealing.
 In order to be ‘fair’ the decisions of the Supreme Court are clear indicators.
 This is seen in Sheela Barse v/s State of Maharastra, the court insisted on
‘fairness’ to women in police lockup and drafted a code of guidelines for the
protection of prisoners in police custody, especially females.
 In State of M.P. v/s Ramashanker Raghuvanshi, the court secured
‘fairness’ in public employment by holding that reliance on police reports is
entirely misplaced in a democratic republic.
 During the last few years the Indian Supreme Court has developed some fine
principles of Third World jurisprudence.
 In Veena Sethi v/s State of Bihar, the Apex Court extended the reach of the
Rule of Law to the poor and the downtrodden, the ignorant and the illiterate
who constitute the bulk of humanity in India, when it ruled that the rule of
law does not exist merely for those who have the means to fight for their
rights and very often do so for the perpetuation of the status quo, which
protects their dominance and permits them to exploit a large section of the
community.
 The Commission divided itself into certain working groups which tried to
give content to the concept in relation to an individual’s area of activity in a
society:
1) Committee on Individual Liberty and the Rule of Law, which lays down
a) That the State should not pass discriminatory laws;
b) That the State should not interfere with religious beliefs;
c) That the State should not place undue restrictions on freedom.
2) Committee on Government and the Rule of Law Under this the rule of law
means not only the adequate safeguards against abuse of power but effective
Government capable of maintaining law and order.
3) Committee on Criminal Administration and the Rule of Law Rule of Law
here means

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  Due criminal process;
 No arrest without the authority of laws;
 Legal aid;
 Public trail and fair hearing;
 Presumption of Innocence.
4) Committee on Judicial Process and the Rule of Law Under this the rule of
law means
 Independent judiciary;
 Independent legal profession;
 Standard of professional ethics.

Q.3. DISCUSS DROIT ADMINITRATIF.

 Droit Administratif is associated with the name of Napoleon Bonaparte.

 It can be defined as Body of rules which determine the organization and
duties of public administration and regulate relations of the administration
with the citizens of the State.
 Before the Revolution in 1789, there was a constant see-saw struggle for
power going on in the French politics between the traditionalist Bonapartists
(who supported the executive power even in judicial matter) and reformist
parliaments (who supported the jurisdiction of ordinary courts).
 In pre-revolutionary France, Conseil du Roi advised the King in legal and
administrative matters.
 This body can be compared to Conseil du Roi can be compared to Curia
Regis and the

 Privy Council in Britain during feudalistic days.

 It also discharged judicial functions such as deciding disputes between great
nobles.
 Ordinary courts (parliaments) became jealous and not only interfered with
the functioning of the executive but also tried to impede the growth of the
measures which the monarchy wanted to introduce.
 After Revolution in 1789, a major breakthrough was made in this deadlock.
The first step taken by the revolutionists was to curtail the power of the
executive which was done on the theory of separation of powers by the
famous 16-24 August 1790 Law.
 Counseil du Roi was abolished and the king’s powers were curtailed.
Napoleon who became the first Consul, favoured freedom for the
administration and also favoured reforms.

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  He wanted an institution to give relief to the people against the excesses of
the administration.
 Therefore, in 1799 Conseil D’Etat was established.
 The main aim of the institution was to resolve difficulties which might occur
in the course of the administration.
 Later it also exercised judicial powers in matters involving administration.
 Later, the jurisdiction of the Conseil D’Etat was considered to be final.
 It laid down, among other things, the principle that questions of
administrative liability would be within the jurisdiction of administrative
courts, and that the liability was subject to special rules different from those
of Droit Civil. In 1889 it started receiving direct complaints from the
citizens and not through Ministers.
 Droit Administratif does not represent principles and rules laid down by the
French Parliament; it consists of rules developed by the judges of the
administrative courts.
 Droit Administratif, therefore, includes three series of rules:
 Rules dealing with administrative authorities and officials – These
relate to appointment, dismissal, status, salary, and duties, etc.
 Rules dealing with the operation of public services to meet the needs
of citizens – These services may be operated either wholly by public
officials or under their supervision or they may assist private agencies
to provide public utility services.
 Rule dealing with administrative adjudication – if any injury is done
to a private citizen by the administration, the matter would be decided
by the administrative courts. Conseil D’Etat was the highest
administrative court.
 In France case of conflict between the ordinary court and the Administrative
court regarding jurisdiction, the matter is decided by the Tribunal des
Conflicts.
 It consisted of equal number of ordinary and administrative judges and is
presided over by the Minister of Justice.

The characteristics of Droit Administratif

a) Matters concerning the State and administrative litigations are decided by
the administrative courts and not by the ordinary courts of the land.
b) In deciding matters concerning the State and administrative litigations
special rules as developed by the administrative courts are applied.
c) Conflict of jurisdiction between ordinary courts and administrative courts
are decided by the agency known as Tribunal des Conflits.
d) It protects government officials from the control of the ordinary courts.
e) Conseil d’Etat which is the supreme administrative court is not a priori
invention but is the product of historical process with deep roots. It is not
merely an adjudicatory body, but is also a consultative body.

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Q.4. DISCUSS WHAT IS DELIGATED LEGISLATION.
 ‘Delegation’ as ‘the act of entrusting another with authority or empowering
another to act as an agent or representative’. E.g. Delegation of Contractual
Duties.
 ‘Subordinate Legislation’ has been defined as:“Legislation that derives
from any authority other than the Sovereign Power in a state and that
depends for its continued existence and validity on some superior or
supreme authority.”
 Salmond defines – “Subordinate legislation is that which proceeds from any
authority other than the sovereign power, and is therefore dependent for its
continued existence and validity on some superior or supreme authority.”
 Delegated legislation is, at times, referred to as “Ancillary”, “Subordinate”,
Administrative Legislation or as Quasi-Legislation”. Delegated legislation is
a technique to relieve pressure on legislature’s time so that it can concentrate
on principles and formulation of policies.

Essential characteristics of Delegated Legislation:

 The rules should contain short titles, explanatory notes, reference to
earlier amendments, etc. for clear understanding.
 No extra-ordinary delay shall occur in making the subordinate
legislation.
 The administrative authority should not travel beyond the powers
given in Parent Act.
 4. Essential legislative functions cannot be delegated.
 Sub-delegation (Delegatus non potest delegare) is not encouraged.
 General rules should not be framed with retrospective operation,
unless and until the parent Act instructs to do so.
 Discriminatory and arbitrary rules should not be framed.
 Wide and sufficient publicity shall be given so that general public can
know it.
 In appropriate cases, consultation also shall be made for more
effectiveness and efficiency.
 The Sub-ordinate authorities should not use rigid, crux and technical
language while preparing the rules, which may cause difficulty to
understand by general public.
 The final authority of interpretation of the subordinate rules is vested
to Parliament and Courts. But the administrative authorities are not
empowered and authorised to interpret the statutes.
 A tax or financial levy should not be imposed by rules.
 Wherever it is necessary, the explanatory notes shall be given.
 Public interest must be kept in view while delegating the powers, etc.

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MECHANISM OF ADMINISTRATIVE RULE-MAKING IN INDIA.

Parliamentary Control
 Every delegate is subject to the authority and control of the principal and the
exercise of delegated power can always be directed, corrected or cancelled
by the principal.
 Hence parliament control over delegated legislation should be living
continuity as aconstitutional necessity.
 The fact is that due to the broad delegation of legislative powers and the
generalized standard control also being broad, the judicial control has
shrunk, raising the desirability and the necessity of parliamentary control.
 In India the parliamentary control of delegated legislation is implicit as a
normal constitutional function because the executive is responsible to the
parliament.
 Legislation is an inherent and inalienable right of Parliament and it has to be
seen that this power is not usurped nor transgressed under the guise of what
is called subordinate legislation. It can control the following:
1. Normal Delegation:
 Positive: - where the limits of delegation are clearly defined in the enabling
Act
 Negative: - does not include power to do certain thing (these not allowed)
2. Exceptional Delegation: -
 Power to legislate on matters of principle (policy)
 Power is amend Act of parliament (In re Delhi laws Acts )
 W.B. State Electricity Board v. Desh Bandhu Gosh it was held that
Regulation 34 of the West Bengal State Electricity Regulation which had
authorized the Board to terminate the Service of any permanent employer on
three months notice or pay in lieu there of.
 This hire & fire rules of regulation 34 is parallel to Henry VIII clause.
 Similar position was held by the court in the case of Central Inland Water
Transport Corporation Limited v. Brojo Nath Ganguly wherein rule 9 of
the service rules of the CIWTC conferred power to terminate on similar lines
as in the case of Desh Bandhu Ghosh the court went on to say that no
description of Rule 9(i) can be given than to call it "the Henry VIII clause".
It confers absolute and arbitrary power upon the Corporation and therefore
invalid.

Procedural Control
 Parliamentary control over administrative rule is admittedly weak because
the legislators are sometimes innocent of legal skills.
 A constant search therefore is on for an alternative mechanism which
besides providing an effective vigil over administrative rule making can

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 guarantee effective people participation for netter social communication,
acceptance and effectively of the rules.
 Procedural control mechanism has the potential to meet the above noted
requirements for allowing specific audit of rules by those for whose
consumption they are made.
Procedural control mechanism operates in four components:
1. Drafting
2. Antenatal publicity
3. Consultation
4. Postnatal publicity

1) Drafting
 The drafting of delegated legislation by an expert draftsman who is, at the
same time, in a position to advise whether the proposed rules and
regulations are intra vires is obviously of great value.
 Poorly drafted rules often create hardship for the people by increasing
avoidable litigation.
2) Antenatal Publicity
 Antenatal publicity (before birth) is done through draft form and objection
and suggestions are invited before finalizing.
 Antenatal publicity required by the enabling Act attracts the application of
Section 23 of the General Clauses Act, 1897 which requires:
 That the rules be published in draft form in the Gazette;
 That objections and suggestions be invited by a specific date
mentioned therein; and
 That those objections and suggestions be considered by the rule-
making authority.
 It may be noted that the procedure prescribed in the General Clauses Act,
1897 applies only to rule, regulations and bye-laws, and the administrative
rule-making appearing under any other name is not governed by it.
3) Consultation with affected persons
 Consultation with affected persons makes administrative rule-making a
democratic process and therefore, increases its acceptability and affectivity.
 In India there is no general law which provides for prior consultation with
affected persons before rules and regulations are framed by administrative
authorities.
 Therefore the provision of prior consultation is sometimes provided in the
enabling Act itself.
4) Postnatal publicity
 Postnatal publicity is based on the dictum ignorance of law is no excuse.
Laws should be made accessible to all.
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  In India, there is no general law prescribing the mode of publication of
rules; therefore, the practice of publication differs from statute to statute.
 In some cases the statute lays down that the rules must be published in
the Official Gazette, but in other cases the administrative authority is left
free to choose its own mode of publication.
 In such cases, publication is necessary in any ‘recognizable’ or
‘customary’ manner.

Judicial Control
 Judicial Control over Delegated Legislation Judicial control over delegated
legislature is exercised at the following two levels:
1. Delegation may be challenged as unconstitutional; or
2. That the Statutory power has been improperly exercised.
 The delegation can be challenged in the courts of law as being
unconstitutional, excessive or arbitrary.
 The scope of permissible delegation is fairly wide.
 Within the wide limits, delegation is sustained it does not otherwise; infringe
the provisions of the Constitution.
 The limitations imposed by the application of the rule of ultra vires are quite
clear.
 If the Act of the Legislature under which power is delegated, is ultra vires,
the power of the legislature in the delegation can never be good.
 No delegated legislation can be inconsistent with the provisions of the
Fundamental Rights.
 If the Act violates any Fundamental Rights the rules, regulations and bye-
laws framed there under cannot be better.
 Where the Act is good, still the rules and regulations may contravene any
Fundamental Right and have to be struck down. Besides the constitutional
attack, the delegated legislation may also be challenged as being ultra vires
the powers of the administrative body framing the rules and regulations.
 The validity of the rules may be assailed as the stage in two ways:
1) That they run counter to the provisions of the Act; and
2) That they have been made in excess of the authority delegated by the
Legislature.

Illustrative cases:
Kruse. v. Johnon
 It was laid down that a bye-law would be unreasonable if it is found to be
 Partial or unequal i.e. its operation as between different classes;
 manifestly unjust:
 disclosing bad faith; and

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  involving such oppressive or gratuitous interference with the right of
the people that it could find no justification in the minds of reasonable
men.
Chadran v. R:
 A rule or bye-law must be within the power entrusted to the legislature.
 For example an Act of the U.P. State was devised to control the transport of
goods and passengers by ferries and authorised the Commissioner to make
rules for the safety of the passengers and property.
 But actually the Commissioner forbade the establishment of private ferries
within a distance of two miles from another ferry.
 That rule was struck down.

NEED FOR DELEGATED LEGISLATION OR ADMINISTRATIVE RULE

MAKING
 Delegated legislation is not a new phenomenon.
 Ever since the statutes came to be made by Parliament, delegated legislation
also came to be made by an authority to which the power was delegated by
Parliament.
 The Indian Parliament enacted from the period 1973 to 1977 a total of 302
laws; as against this the total number of statutory orders and rules passed in
the same period was approximately 25,414.
 The modern trend is that Parliament passes only a skeletal legislation. A
classic example may be the Imports and Exports (Control) Act, 1947, which
contains only eight sections to provide through the rule-making power
delegated to it under legislation and delegates the whole power to the
administrative agencies to regulate the whole complex mechanism of
imports and exports.
 The delegation of some part of legislative power becomes a compulsive
necessity for viability.
 Factors leading to growth of administrative law-making are:
a) Legislation on ever-widening fronts of a modern Welfare and Service
State is not possible without the technique of delegation. Even if the
Parliament sits all the 24 hours and all the 365 days in a year, it cannot
possibly pass all the laws needed by the government today. Therefore,
delegation of rule-making is a compulsive necessity.
b) Today legislation has become highly technical because of the
complexities of a modern Government. Due to innocence of legal and
technical skills, it is better to leave the lawmaking sequence to the
administrative agencies.
c) Ordinary legislative process suffers from the limitation of lack of
viability and experimentation. A law passed by the Parliament has to
be in force till the next session of Parliament when it can be repealed.

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 Therefore, in situations which require adjustments frequently and
experimentation, administrative rule making is the only answer.
d) In situations where crisis legislation is needed to meet emergent
situations, administrative law-making is a necessity because the
ordinary law-making process is overburdened with Constitutional and
administrative technicalities and involves delay.
e) In some situation it is the necessary that the law must not be known to
anybody till it comes into operation. This secrecy is achieved only
through administrative action because the ordinary legislative process
is always very open. f. Where government action involves discretion,
i.e. expansion of public utility services, administrative rule-making is
the only valid proposition.
f) Administrative rule-making is a more convenient and effective way
and provides for participation. Thus it is necessary that the norms for
delegated legislation should have a clear statement of policy,
procedural safeguards and control mechanisms.
 Administrative rule-making or delegated legislation in India is commonly
expressed by the term “statutory rules and orders”.

Q.5. DISCUSS CONSTITUTIONALITY OF ADMINISTRATIVE

RULE-MAKING IN INDIA.
Introduction
 The Constitution of Indian empowers Legislature to make laws for the
country.
 One of the significant legislative functions is to determine a legislative
policy and to frame it as a rule of conduct.
 Obviously such powers cannot be conferred on other institutions. But
keeping in mind various multifarious activities of a welfare State, it is not
possible for the legislature to perform all the functions.
 In such situation, the delegated legislation comes into the picture.
 Delegated Legislature is one of the essential elements of administration
whereby the executive has to perform certain legislative functions.

What is Delegated Legislation?

 Legislation by any statutory authority or local or other body other than the
Legislature but under the authority of the competent legislature is called
Delegated legislation.

Constitutional Validity of Administrative Rule Making

 The phrase 'constitutional validity of administrative rule making‘ means the
permissible extent of the Constitution of any country within which the
legislature, which strictly speaking is the sole authority of law making

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 power, can validly delegate rule making powers to other administrative
agencies.
 In today's world, there has been a tremendous expansion of the government's
authority due to the shift from the laissez faire regime to a welfare state
concept.
 As result, the new role of the state can only be fulfilled through the use of
greater power in the hands of the government which is best suited to carry
out the social and economic tasks before the country.
 The task of increasing the power of the government to successfully deal with
the problems of social and economic reconstruction has been accomplished
by delegating the legislative power to it.
 This is commonly known as the concept of delegated legislation.
 The major problem associated with constitutional validity of administrative
rule making is regarding the permissible limit of delegation of powers by
legislature.
 Validity of administrative rule making in pre independence and post-
independence India.
 Three sets of periods describe the question of permissible limits within the
Constitution, within which delegated legislation is permissible.

Division Of Periods

Period I Period II Period III

Privy Federal Supreme
Council as Court as Court as
the highest the highest the highest
court of court of court of
Appeal. Appeal. Appeal.

Period I- Privy Council as the highest court of appeal.

 The nature and extent of legislative power and the possibility of its
delegation was considered by the Privy Council in the case of R. v. Burah.

Period II- Federal Court as the highest court of appeal.

 Federal Court of India, the predecessor of the present Supreme Court,
examined the problem of delegation of legislative power to an extraneous
authority in the case of Jatindra Nath Gupta v. the Province of Bihar.

Period III- Suprme Court as the highest court of appeal.

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  In Re Delhi Laws Act
 This was a Presidential reference under Article 143 of the Constitution.

Conclusion
 In the end we can conclude that the delegated legislation is important in the
wake of the rise in the number of legislations and technicalities involved.
 But at the same time with the rise in delegated legislation, the need to
control it also arises because with the increase in the delegation of power
also increases the chance of the abuse of power.
 The judicial control apart from the legislative and procedural control is the
way how the delegation of power can be controlled.
 Thus, the delegated legislation can be questioned on the grounds of
substantive ultra vires or procedural ultra vires and on the ground of the
constitutionality of the parent act that is the reasonableness and the
delegated legislation.
 The latter can also be challenged on the ground of its being arbitrary.

Q.6. PRINCIPLE OF NATURAL JUSTICE.

PRINCIPLE OF NATURAL JUSTICE

 Natural Justice (NJ) is a principle that intended to ensure law with fairness
and to secure justice.
 Fairness and justice should vest the manner of arriving of decisions by
judicial process. The IC as the mechanism of arbitrating industrial dispute
when dealing with matters referred to it.

essential elements of NJ:

A. The rule against bias
B. That of hearing both sides ("audi alteram partem“)

A) The rule against bias

 The rule against bias requires the adjudicator to be neutral between the
disputing parties and appear to be above board.
 This principle is based on two requirements:
1. No man should be a judge in his own cause ("nemo judex in cause
sua“) and
2. Justice must not only be done, but manifestly and indubitably be seen
to be done
The rule against bias has 2 main features:

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 1) The administrator exercising adjudicatory powers must have not have
any personal or proprietary interest in the outcome of the proceedings.
2) There must be a real likelihood of bias. Real likelihood of bias is a
subjective term which means either actual bias or a reasonable
suspicion of bias. difficult to prove the state of mind of person.
Therefore, the courts see is whether there is a reasonable ground for
believing that the deciding factor was likely to have been biased
Forms of bias:
1) Personal bias - It arises out of the personal or professional relationship of
friendship or hostility between the authority and the parties. It’s the human
nature that we try to give favourable decision to our friends or relatives,
whereas use the same as a weapon against the enemies.
2) Pecuniary bias - Any financial interest howsoever small it may be is bound
to vitiate the administrative action.
3) Subject-matter bias - The situations where the deciding officer is directly
or indirectly in the subject matter of the case.
4) Departmental bias - The problem of departmental bias is something which
is inherent in the administrative process, and if it is not effectively checked,
it may negate the very concept of fairness in the administrative proceeding.
5) Pre-conceived notion bias - Bias arising out of preconceived notions is a
very delicate problem of administrative law.
6) Bias on account of obstinacy - The word Obstinacy implies unreasonable
and unwavering persistence and the deciding officer would not take ‘no’ for
an answer. This new category of bias was discovered in a situation where a
judge of the Calcutta High Court upheld his own judgment while sitting in
appeal against his own judgment.

B). The Rule of Hearing Both Sides

 This rule is expressed through 2 maxims:
1) Hear the other side and
2) No man should be condemned unheard (give opportunity to be heard)
HEAR THE OTHER SIDE
 The adjudicator (judge) must act in good faith and fairly listen to both sides,
for that is the duty of the adjudicator who decides anything.
 They can obtain information in any way they think best. They must always
give opportunity to those who are parties in the controversy for correcting
any relevant statement.
 Any proceedings commenced must with prior notices to the parties in order
to avoid vitiate the resulting decision.
 Therefore, the person should be given adequate notice of the proceedings so
that they may be able to:
a) Effectively prepare their case and to answer the case of the opponent.
b) Make their representations and c.Appear at the hearing.

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Opportunity to be Heard
 The parties involve must have a reasonable opportunity of being heard in
their defence.
 3 requirements of fair or reasonable opportunity:
 The adjudicator should receive all the relevant material, which a party
wishes to produce in support of its case.
 The evidence of the opponent, whether oral or documentary, should
be taken in his presence.
 Each party should have the opportunity of rebutting the evidence of
the other by cross- examination or explanation.

CONCLUSION
 The rules of NJ are not inflexible principles – flexibility is allowed however,
they may vary in their content in the circumstances of each case and in their
ambit in the context of their application.
 For example: The concept of fair hearing, particularly, varies significantly
in different contexts such as whether it is a sophisticated full-fledged hearing
or a brief and minimal one; hearing prior to the decision or post decisional
hearing.
 i.e. depending on the circumstances of each particular case, this rule, in its
application is flexible enough to range from minimum to rigorous standards
 Flexibility of the rules of NJ is emphasized it should be noted that their
fundamental importance should be stressed.
 For example: As long as notices were produced to the appellant or the
disputing parties
 The fundamental of adequate, clear, certain and unambiguous notice should
be stressed.
 A vague notice is not a proper notice.

Q.7.EXPLAIN DOCTRINE OF SEPARATION OF POWER.

INTRODUCTION
 Government is the agency or the machinery through which the will of testate
is formulated, expressed and realised.
 Power corrupts and absolute power corrupts absolutely.
 Concentration of authority degenerates into tyranny, corruption and abuse of
powers .
 The functions of the state are performed by the government through its three
branches- legislature, executive and judiciary
 These three organs represent the people and their will in our country and are
responsible for the smooth running of a democratic government in our
country.

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  All the branches of the government have equal importance and functions. So
the great thinkers thought that each branch of the government should be
made independent of the other.
 For this the concept of separation of powers was introduced.
 Jean Bodin(1530-1596), the French publicist was the first modern writer to
demand a separation of powers.

MONTESQUIEU’S THEORY OF SEPARATION OF POWERS

 Though the history of the doctrine of separation of powers is traceable to the
ancient times of Aristotle, and subsequently16th and 17th century
philosophers such as John Bodin and Locke.
 It was the French Jurist, Montesquieu who gave it a systematic and scientific
formulation.
 In his book ‘Esprit de Lois’ (The spirit of laws), Montesquieu, for the first
time, extensively discussed the doctrine and its form.
 According to Montesquieu theory, it means that no one person or body
should be vested with all three types of powers.
 In every state there are three kinds of powers, the legislative power, the
power executing the matters falling with the law of nations, and the power
executing the matters which fall within the civil law.

 There must be a division of functions on the following basis: the legislature

should make laws but not administer or enforce them, the executive must
administer the made laws but neither influence the legislature in the making
of the laws nor stand in judgment of the same and the judiciary must
determine rights and uphold justice without taking over the functions of law-
making or administration.
 He further said that such separation is necessary in order to ensure that
justice does not become arbitrary and capricious.
 Montesquieu states that “when the legislature and executive powers are
united in the same persons or in the same body of magistrates there can be
no liberty, because apprehensions may arise, lest the same monarch or
separate should enact tyrannical laws .
 There is no liberty if the judicial power is not separated fromthe legislative
from the legislative and executive.

PRINCIPLES OF THE THEORY OFSEPARATION OF POWERS

 No concentration of powers.
 Diffusion of powers needed
 System of checks and balances
 In short, the theory of the separation of powers merely means that a different
body of persons is to administer each of the three departments of

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 governments and that no one of them is to have a controlling power over
either of the others.
 Such separation is necessary for the purpose of preserving the liberty of the
individual and for avoiding tyranny.

CRITICISM•
 It is not desirable because if there is complete separation of powers , the
different organs of the government will not be able to work in co-operation
and harmony.
 As a result, there would be frequently deadlocks which may bring the
governmental machinery to a standstill.
 According to Mill, ”the separation of powers will result in a clash between
the three organs of government, as each one will take interest only in its own
powers”.
 If all branches are made separate and independent of each others, each
branch will try to safeguard its powers and will not protect the powers of
other branches. In such case administrative efficiency cannot be attained
 The theory of separation of powers makes a mistake unassuming that the
three branches of government are equally powerful and can be independent
of one another.
 The growth of administrative adjudication is another development which is
against the doctrine of separation of powers.
 The executive is being vested with judicial powers as well as other duties
otherwise the officers do not feel secure while performing their duties.

IMPORTANCE OF THE THEORY OFSEPARATION OF POWERS

 It aims at individual liberty. It is a safeguard against despotism.
 Its basic principle that concentration of powers leads to dictatorship is true
for all time and ages.
 The separation of powers saves the people from the arbitrary rule of the
executive .
 This theory lays down the principle that governments should act according
to certain well established rules or law.
 Each organ acts as a check upon the others.
 It is desirable for maintaining the efficiency in the administration.

SEPARATION OF POWERS IN THEUNITED STATES OF AMERICA

 The American constitution is based on the theory of separation of powers.
 According to article 1 of the constitution of the United States, “all legislative
powers therein granted shall be vested in a Congress.” The legislature alone
exercises law making power.
 According to article 2 of the constitution of the United States, “the executive
power shall be vested in a president of the united states.

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  He is not responsible to the congress.”
 According to article 3 of the constitution of the United States, “the judicial
power shall be vested in the supreme court.” the judiciary is independent of
the executive and the legislative.
 A concrete evidence of this theory is seen in American constitution as the
position of president under the constitution has been secured by providing
fixed tenure of office, the legislature is not Subject to any executive control,
and a judge cannot be removed once appointed.
 Congress consists of two houses- Senate and House of Representatives. Both
are directly elected by the people for affixed period.
 Neither the president nor the congress is responsible to each other.
 President is not empowered to remove a judge after he is appointed on the
post.
 The senate has got no power to choose, control or dismiss the executive or
the judiciary; the executive also cannot dissolve the legislature and dismiss
judges.

APPLICABILITY OF THE THEORY IN INDIA

 Despite there being no express provision recognizing the doctrine of
separation of powers in its absolute form, the Constitution does make the
provisions for a reasonable separation of functions and powers between the
three organs of Government
 Since ours is a parliamentary system of governance, though an effort has
been made by the framers of the constitution to keep the organs of the
government separated from each other, but a lot of overlapping and
combination of powers has been given to each organ.
 In India, there are different branches to carry out the different activities of
the government.• The legislative and executive wings are closely connected
with each other due to this, the executive is responsible to the legislature for
its actions and derives its powers from the legislature
 The head of the executive is the president, but a closer look shows that he is
only a nominal head and the real power rests with the Prime Minister and his
Cabinet of ministers• The judiciary can performs administrative and
legislative functions.
 The parliament too may perform judicial functions.
 It is important to note that the separation of powers is still an important
guiding principle of the constitution.
 Most noteworthy is our judicial system which is completely independent
from the executive and the legislature.
 The High Courts and Supreme Courts have the power of judicial review
which empowers them to declare any law passed by the parliament
unconstitutional if it so decides.

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  As in regard to the judges, they are extremely well protected by the
Constitution, their conduct is not open to discussion in the Parliament and
their appointment can only be made by the President in consultation with the
Chief Justice of India and the judges of the Supreme Court.
 But it is clear that the Separation of Powers doctrine has not been
implemented in its strictest format in our country nor been given
Constitutional status but a diluted and modern approach is followed to aid
and guide our parliamentary system of governance.

CONCLUSION
 In the modern world, the Separation of Powers has come to not only mean
organs such as the Executive, the legislature and the judiciary but also
institutions such as the press and academic institutions.
 Thus, in a modern society, implementation of Separation of Powers doctrine
in its strictest sense, the way Montesquieu envisaged it to be in his book
The Spirit of laws is an extremely difficult task. Even civil institutions
wield a lot of power in all spheres of governance.
 In India, the separation of powers theory has been used as guiding
philosophy to separate powers as much as possible but not completely, so
that the organs of government are alienated from each other.
 In our parliamentary form of governance a lot of cooperation is required and
thus each organ must correspond to the other on some level so as to function
smoothly.
 Hence though the doctrine of separation of powers is theoretical concept
and may be very difficult to follow completely a compromised version of it
is used in our country.
 For example, judicial review and activism functions of the judiciary is an
important element of our system of justice to keep a check on the legislature
who are new makers of the land , so that they do not exceed their powers
and work within the allowances that the constitution has made for them.

Q.8. PUBLIC INTEREST LITIGATION

Public Interest Litigation

 Public Interest Litigation Public Interest Litigation (PIL) is a legal tool
which allows individuals, groups and communities to challenge government
decisions and activities in a court of law for the enforcement of the public
interest.
 It serves as a protection of the public interest, and which directly joints the
public with judiciary.
 Public Interest Litigation In general, PIL cases deal with major
environmental and social grievances.

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  They are often used strategically as part of a wider campaign on behalf of
disadvantaged and vulnerable groups in society.
 Where individuals, groups and communities do not have the necessary
resources to commence litigation, PIL provides an opportunity for using the
law to promote social and economic justice.
 PIL cases are often concerned with preventing the exploitation of human,
natural and economic resources.
 Public Interest Litigation The Indian Constitution allows any public-spirited
person, NGO or a public interest law firm to file a case on behalf of a group
of persons whose rights are affected.
 The court can also act on its own motion. A PIL must be filed against
government authorities, but private parties can also be included as co-
respondents.
 Cases in which a PIL can be filed include:
 Environmental degradation;
 Violation of basic human rights of the poor;
 Content or conduct of government policy;
 To compel municipal authorities to perform a public duty;
 Violation of religious rights or other basic fundamental rights.

Constitutional basis for PIL

 PIL is firmly rooted in Articles 14 and 21 of the Constitution.
 Article 14 provides protection against all arbitrariness and lawlessness in
administrative actions.
 Article 21 provides for protection of life and liberty which embodies
everything that goes for a dignified living, including rightful concerns for
others.
 It also includes violation of directive principles of state policy in the
Constitution, which are for the benefit of the weaker sections of society.

Locus Standi in PIL

 The traditional view of locus standi was that only an ‘aggrieved person’ who
has personally suffered a legal injury by reason of violation of his right or
legally protected interest, can file a suit for the redress of his grievance.
 PIL has been extended to any pro bono public, meaning it has been made
broad-based and people-oriented to allow access to justice through ‘class
actions’, ‘representative actions, and ‘public or social action litigation’ so
that justice can be made easily available to the lowly and lost.

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  It has allowed ‘public-spirited individuals, groups, and organizations on
behalf of those who because of their poverty, illiteracy and ignorance cannot
come before the court and thus continue to suffer injustice and deprivation.
 Courts have even allowed ‘letter petitions’ and acted suo moto where the
situation is such that it shocks the conscience of the court.
 Thus any member of the public having sufficient interest can maintain an
action for public injury.
 But it should not be abused by any person for personal or political gains.
 Therefore, the court will not allow that its process be obstructed or polluted
by unscrupulous litigants under the garb of PIL.
 In Malik Brothers v/s Narendra Dadhich, the Supreme Court clarified
beyond doubt that standing in PIL is to be judged keeping in view the
purpose of the petition.
 The purpose of the petition should be the betterment of society and not
individual benefit, so that this strategy is not allowed to degenerate into
personal, publicity or political interest litigation.
 According to the law the real purpose of the PIL is
a) Vindication of the rule of law.
b) Facilitating effective access to justice to socio-economic weaker
sections of society.
c) Meaningful realization of fundamental rights.
 Therefore, it is for redressing public injury, enforcing public duty, protecting
socio-economic rights of weaker sections, and vindicating public interest.
 A PIL cannot be filed in the first instance unless all the alternative remedies
have been exhausted, so that the time of the court is not wasted.
Procedure for PIL
 As it is different from private litigation, the technical rules of procedure
applicable to the private litigation are not applied as it would be counter-
productive.
 Courts have developed new procedural norms to suit the requirements of this
strategy
 The PIL can be introduced by any public-spirited person on behalf of the
people who are not able to get justice due to their socio-economic handicaps.
 Drafting of petition should be done by persons having expert knowledge in
the field after making proper research.
 In number of cases, courts have entertained ‘letters’ also not only from the
aggrieved persons but also from person acting pro bono public.
 The petition is heard on priority basis.
 The court does not insist on a regular writ petition and sworn affidavits.
 In case a person withdraws, then the court can ask any other person to
represent the case.
 The court may allow withdrawal keeping in view the consideration of public
interest and to check the abuse of process of the court.

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  If there are a large number of people, then public notices are issued in
newspaper.
 The court can issue guidelines and norms to fill up the vacuum in an existing
legislation. This we have seen in Vishaka v/s State of Rajasthan, the court
issued detailed directions to protect
 working women from sexual harassment and to make their fundamental
rights meaningful to them.
 As regards the scope of enquiry of the Constitutional court, while hearing a
PIL, the Supreme Court held that after giving notice to the parties, the court
may enter issues wider than those raised in the PIL.
 The court has to see that the conduct and activities of the public bodies are
transparent, and are guided with the object of public good and are within the
four corners of law.
 The Principle of Res Judicata (finality of litigation) shall apply to PIL in the
same manner as applied to other writ proceedings.

Cases of PIL
S. P. Gupta v/s Union of India (known as Judges Transfer Case).
 In this case the Supreme Court entertained petitions by lawyers challenging
the Constitutionality of a Law Minister’s circular regarding transfer of
judges of High Courts and non-confirmation of sitting Additional judges of
High Courts.
 Standing was allowed on the ground that the independence of the judiciary is
a matter of grave public concern.

M. C. Mehta v/s Union of India.

 On a PIL petition by a lawyer of the Supreme Court, the court granted relief
to the victims of gas leak from the Shriram Fertilizers and Chemical Plant at
Delhi,
 and also liberated the Indian tort law from the bondage of Ryland v/s
Fletcher by holding that no exceptions to strict liability laid down in this
case will be applicable if any hazardous activity is undertaken.

Q.9. PUBLIC LAW REVIEW.

Public Law Review

 The basic purpose of judicial review is to enforce constitutionalism and to
guard against majoritarianism.
 Thus an important aspect of public law review is not only the enforcement
of private rights but to keep the administrative and quasi-administrative
machinery within proper control.
 In an intensive form of Government, there is a tremendous increase in the
functions of the administration as a facilitator, regulator and provider.
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  Therefore, if these new found powers are not properly exercised, these may
lead to real socio-economic growth, and if abused these may lead to a
totalitarian state.
 Against this backdrop, the prime function of judicial review is to check the
abuse of administrative powers and to enforce accountability on the
operators of these powers.
 The Supreme Court and High Courts exercise the power of public law
review through writs of certiorari, prohibition, mandamus, quo warranto and
habeas corpus and through Articles 136 and 227 of the Constitution.

Writ of Certiorari
 Certiorari is a Latin word being the passive form of the word ‘certiorare’
meaning to ‘inform’.
 It was a royal demand for information.
 The king wishing to be certified of some matter ordered that the necessary
information be provided for him.
 Now certiorari is a judicial order operating in personam and made in the
original legal proceedings, directed by the Supreme Court or a High Court to
any Constitutional, statutory or non-statutory body or person, requiring the
record of any action to be certified by the court and dealt with according to
the law.
 A writ can now be issued against Constitutional bodies (legislature,
executive, and judiciary or their officers), statutory bodies (like corporations
and other authorities created under a statute), non-statutory bodies (like
companies and cooperative societies), and private bodies and persons.
Grounds of Issue of a writ of certiorari
Lack of jurisdiction:
 It refers to such situations where an authority has no jurisdiction at all to
take action. This may happen:
 If the authority is improperly constituted;
 If the authority commits an error in its decision on jurisdictional facts
and thereby assumes jurisdiction which never belonged to it;
 If the authority is incompetent to take action in respect of a locality,
party or subject matter.
 If the law which gives jurisdiction is itself unconstitutional;
 If preliminary essentials have been disregarded, i.e. omission to serve
notice as required by law.
Excess of Jurisdiction
 Excess of jurisdiction refers to cases where an authority has jurisdiction but
it exceeds its permitted limits
Abuse of jurisdiction
 Certiorari will also lie to quash an action where an authority has jurisdiction
but have abused it.

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  An authority shall be deemed to have abused its jurisdiction when it
exercises its power for an improper purpose, or
 on extraneous considerations, or in bad faith, or leaves out a relevant
consideration, or
 does not exercise the power by itself but at the instance and discretion of
someone else.
Violation of the principles of natural justice
 These principles include Rule against bias – personal bias, pecuniary bias,
subject-matter bias, departmental bias, and preconceived notion bias.
 Rule of audi alteram partem – the right to know adverse evidence, the right
to present a case, the right to rebut evidence, the right to cross-examination
and legal representation, the right to reasoned decisions.
Error of law apparent on the face of the record
 The error must be manifest error based on clear ignorance or disregard of the
law, or
 on a wrong proposition of the law or
 on clear inconsistency between the facts and the law and the decision.
 An error of law apparent on the record is an insult to the legal system which
the courts cannot overlook.
 The record for this purpose shall include:
 Documents in which the determination is recorded,
 Documents which indicate the proceedings and pleadings.
 Reports, the extracts of which are included in the record,
 Documents which are mentioned in the formal order to be the basis of
the decision
Fraud
 If a decision has been obtained by fraud, or
 a fraud operates to take away jurisdiction or bestows jurisdiction or results in
denial of justice, the decision may be quashed by issuing a certiorari.

Writ of Prohibition
 Prohibition is a judicial order issued by the Supreme Court or a High Court
to any Constitutional, statutory agency to prevent these agencies from
continuing their proceedings in excess or abuse of their jurisdiction, or in
violation of the principles of natural justice, or in contravention of the law of
the land
 It is to forbid the authority from continuing the proceedings. But certiorari is
issued at a state when proceedings have terminated and the authority has
given a final decision to quash the decision.

Grounds for the issue of prohibition

1) Lack of excess of jurisdiction
2) Violation of the principles of natural justice

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 3) Infringement of fundamental rights
4) Fraud
5) Contravention of the law of the land.

Writ of Mandamus
 Mandamus is a judicial remedy issued in the form of an order from the
Supreme Court or a High Court to any Constitutional, statutory or a non-
statutory agency to do or forbear from doing some specific act, which that
agency is obliged to do or refrain from doing under the law, and which is in
the nature of a public duty or a statutory duty.

Conditions for the grant of mandamus

1. There must be a public or common law duty
 The writ of mandamus lies to enforce a duty which is public in nature.
 A public duty is one which is created either by a statute, rules or regulations
having the force of law, the Constitution, or by some rule of common law.

2. There must be a specific demand and refusal

 Before mandamus can be granted, there must be a specific demand for the
fulfilment of a duty and also a specific refusal by the authority.

3. There must be a clear right to enforce the duty

 Mandamus will not be issued unless there is, in the applicant, a right to
compel the performance of some duty caste on the authority.
 If the right has been lawfully terminated before filing the petition,
mandamus cannot be issued.
 The right to enforce the duty must belong to the petitioner.

4. The right must be subsisting on the date of the petition

 If the right is not subsisting on the date of petition, mandamus cannot be
issued.

Grounds for the grant of mandamus

 Mandamus can be issued on all those counts on which certiorari and
prohibition can be issued. Therefore, mandamus can be issued for lack of
jurisdiction, excess of jurisdiction, abuse of jurisdiction, violation of the
principles of natural justice, error of law apparent on the face of the record.
 Mandamus can be issued not only to compel the authority to do something
but also to restrain it from doing something. Therefore it is both positive and
negative.
 It is discretionary.

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  The court may refuse it if there is unreasonable delay in filing the petition,
or if there is adequate alternative remedy, or if it is premature, or if its
issuance would be in fructuous and futile.
 Mandamus will not lie against any officer of member of Parliament or State
Legislature in whom powers are vested for regulating the procedure or
conduct of business for maintain order.
 It also not lies against President or Governor of any State for the exercise
and performance of powers and duties of his office.
 A writ of mandamus cannot be issued to compel an authority to pass an
order in violation of a statutory provision.

Writ of quo warranto

 Quo warranto means ‘by what warrant or authority’.
 It is a judicial order issued by the Supreme Court or the High Court by
which any person who occupies or usurps an independent public office or
franchise or liberty, is asked to show by what right he claims it, so that the
title to the office, franchise or liberty may be settled and any unauthorized
person ousted.

Conditions for the grant of quo warranto

1. Office must be public office
 In Anand Behari v/s Ram Sahai, the court held that a public office is one
which is created by the Constitution or a statute and the duties of which must
be such in which the public is interested.
 Thus quo warranto would not be issued against a managing committee of a
private school, or against a member of the working committee of the Arya
Samaj Pratinidhi Sabha, because these are private offices not created by law.
2. Public Office must be substantive in nature
 A substantive office is one which is permanent in character and is not
terminable at will.
 In R. v/s Speyer the word ‘substantive’ was interpreted to mean an ‘office
independent of title’.
 Therefore, quo warranto would be granted even when the office is held at
the pleasure of the State provided it is permanent in character.
3. The person must be in actual possession of the office
 Mere declaration that a person is elected to an office or mere appointment to
a particular office is not sufficient for the issue of quo warranto unless such
a person actually accepts such office.
4. The office must be held in contravention of law
 There must be a clear violation of law in the appointment of a person to a
public office. If there is a mere irregularity, quo warranto will not lie.

Locus standi for the writ of quo warranto

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  A quo warranto is maintainable at the instance of any person, although he is
not personally aggrieved or interested in the matter.
 The person need not be an aggrieved party.
 Quo warranto is also discretionary remedy. It can be refused on the ground
of unreasonable delay.
 The writ may also be refused if there is an adequate alternative remedy. In
cases where the issue of writ would be futile in its results, the court may
refuse it.
 The writ of quo warranto arises only when the appointment is contrary to
statutory rules.

Writ of habeas corpus

 Habeas corpus is a Latin term, which may be translated into English as
‘bring the body’ or ‘you must have the body’.
 It is the production of the person alleged to be unlawfully detained is not
essential.
 Habeas corpus may be defined as a judicial order issued by the Supreme
Court or a High Court by which a person who is confined by any public or
private agency may secure his release.
 It is to let the court know the legal justification for the detention, and in the
absence of such justification to release the person from his confinement.
 It is to secure the release of persons illegally detained.
 It can be filed by any person on behalf of the person detained or by the
detained person himself.
 It must be supported by an affidavit stating the facts and circumstances of
detention and where relevant, the reasons as to why the prisoner is unable to
make an application.
 Even a post card is sufficient.

The purpose of the writ of habeas corpus is

1) Testing the regularity of detention under preventive detention laws and any
other law.
2) Securing the custody of a minor.
3) Securing the custody of a person alleged to be a lunatic.
4) Securing the custody of a marriage partner.
5) Testing the regularity of detention for a breach of privilege by the House.
6) Testing the regularity of detention under court-martial and
7) Testing the regularity of detention by the executive during emergency, etc.
8) In the case of Sunil Batra the court extended the purpose: it now included
overcrowding, understaffing, insanitary, brutality, constant fear of violence,
lack of adequate medical and mental health. Inhuman isolation, segregation,
no habilitative and educational facilities.

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Constitution and the writ of habeas corpus
 The writ of habeas corpus gives meaning and colour to the rights of personal
liberty guaranteed under Article 21 of the Constitution.
 The decision of the Supreme Court in Maneka Gandhi v/s Union of India,
electrified the whole concept of liberty by making two significant
innovations with far-reaching consequences:
1) The court gave a wide, extended meaning to the term ‘personal
liberty’ as including the right to education. And the right to legal aid
in cases of criminal convictions with loss of liberty.
2) The court imported the element of fairness and justness in the
‘procedure established by law’ depriving a person of his liberty.
Therefore the writ of habeas corpus lies if the law deprives a person of
his liberty is not fair, just and equitable.
3) In 1978 Constitutional amendment overrules ADM, Jabalpur v/s
Shivakant Shukla (also known as habeas corpus case) decided during
the 1975 emergency which remains a blot on the glorious history of
the Supreme Court.

Q.10. PRIVATE LAW REVIEW.

Private Law Review
 Private law review refers to powers of ordinary courts of the land, exercised
in accordance with ordinary law of the land to control administrative action.
 Private law review is exercised through injunction, declaratory action, and
suit for damages.
 This non-constitutional mode of judicial review of any administrative action
can be exercised by the civil and criminal courts, tribunals, special courts
like one constituted under the scheduled castes, scheduled tribes, consumer
courts and environment authorities, etc.
 The instrumentalities of private law review, being ordinary remedies, are
free from technicalities of writs with regard to locus standi, nature of
administrative authority and action. They are cheaper and easily available.

Modes of Private law review

Injunction
 The jurisdiction of Indian courts to issue injunctions is statutory.
 Sections 36 to 42 of the Specific Relief Act, 1963 govern the grant of
injunctive relief.
 Injunction is an act by which any person or authority is ordered to do or
to refrain from doing a particular act which such person or authority
obliged to do or to refrain from doing under any law.
 It can be positive or negative, absolute or conditional, temporary or
perpetual or it can operate immediately or at a future date.

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  Temporary injunction is granted as an interim measure on an application
by the plaintiff to preserve the status quo until the case is heard and
decided.
 In granting temporary injunction the court takes into consideration the
prima facie case of the plaintiff, nature and extent of his injury, balance
of convenience and the existence of an alternative remedy.
 Perpetual injunction is granted on the final determination of the case to
prevent the infringement of those rights to which the plaintiff is entitled
permanently.
 Injunction will not be granted
1) To restraint a person from instituting or prosecuting any judicial
was proceeding, civil or criminal.
2) To restraint any person from petitioning to any legislative body;
and
3) To prevent the breach of a contract which cannot be specifically
enforced i.e. service contracts.
 Under section 39 a court can grant mandatory injunction as a final decision
in a case to prevent a person from continuing with a wrong action as also to
compel to do a positive act, necessary to remedy the harm already done.
 The court may pass a mandatory injunction not only to restrain the
construction of a building, if it interferes with the easementary rights of the
plaintiff, but also to pull down the construction already made in
contravention thereof.
 Injunction can be granted on the petition of a person who has a personal
interest in the matter.
 It means that the person must have an existing obligation in favour of the
applicant or the person has suffered some injury.
 The Constitution (42nd Amendment) Act, 1976 had considerably curtailed
the powers of the High Court under Article 226 in matters of making interim
orders whether by an injunction or stay or in any other manner.
 The High Court could not issue interim orders by way of injunction or
otherwise unless the opportunity was given to the other party to be heard,
except in exceptional circumstances for reasons to be recorded in writing.
 Even in such exceptional cases, the order ceased to have effect on the expiry
of 14 days from the date on which it was made, unless before the expiry of
this period the other party had been heard.
 Injunction is an effective method of judicial control of administrative action
where the authority has acted without jurisdiction, or has abused its
jurisdiction, or has violated the principles of natural justice.
 It is also effective instrument in controlling the exercise of administrative
discretion.
 Therefore, if the administrative authority has either not exercised its
discretion at all, or has exercised it at the discretion of some other body, or it

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 is arbitrary, or has been exercised on extraneous consideration, or for an
improper purpose, or where its exercise is mala fide, injunction would lie.
 Ganga Narain v/s Municipal Board, Cawnpore is an illustrative case of
efficacy of injunctive relief in cases of abuse of discretion by the
administrative authority.
 In this case Kanpur Municipality constructed a market, but because of high
rent, traders shifted to an old market owned by the plaintiff.
 In order to earn profit for its own market, the municipality served a notice to
the plaintiff to close down the market as it was a nuisance.
 In a suit filed by the plaintiff, the court held that the market was not a
nuisance.
 Therefore, the Municipality got the regulation amended and secured for
itself the power to close down any market on the ground of nuisance.
 The plaintiff was prosecuted for not removing a nuisance i.e. the market.
 In a suit, the plaintiff claimed remedy of injunction and declaration on the
ground of abuse of discretion which was granted.

Declaration
 A declaratory action may be defined as a judicial remedy which
conclusively determines the rights and obligations of public and private
persons and authorities without the addition of any coercive or directory
decree.
 Ivor Jennings says that where more and more individual action is liable to
bring him in conflict with the administration, declaratory action satisfies the
need of a simple but all embracing method of redress against the
administration.
 Such coercive relief is unnecessary against public authorities where merely a
declaration is enough to keep the authority within the bounds.

Conditions for the grant of declaratory relief

1) The person must be entitled to a ‘legal character’ or a ‘right to any property’.
Legal character is in juristic understanding, is equivalent to legal status
which may include official position, professions, sex, marital status,
minority, legitimacy, nationality, etc.
2) There must be some danger or detriment to such right or character. There
must be some person or authority, public or private, either interested in
denying such character or right or must have actually denied it.
3) Plaintiff must seek further relief if he is entitled to it. This places a
restriction on the power of the court to grant a mere declaration. In a
situation where the plaintiff is entitled to consequential relief and does not
claim it, the court will not grant declaratory relief. Consequential relief is
that relief which directly flows from the declaration. In case of wrongful

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 dismissal, the consequential relief would be reinstatement and arrears of
salary.

 Declaration is a discretionary remedy and may be refused if it would be

infructuous or if an adequate alternative exists, or on other equitable
consideration.

Suit for Damages

 Whenever any person has been wronged by the action of an administrative
authority, he can file for damages against such authority.
 Such a suit is filed in the civil court of first instance and its procedure is
regulated by the CPC.
 The requirement of two months’ notice is mandatory under section 80 of the
amended code before filing the suit, unless it is waived by the court in
special circumstances.

Affirmative action for the enforcement of public duties

 In Municipal Council, Ratlam v/s Vardichan produced new enforcement
dimension to public duties owed by administrative bodies to people at large.
 The Ratlam Municipality was supposed to clean the streets and public
places. It neglected its duty due to which there were unbearable insanitary
conditions.
 One resident filed a complaint under 133 of the Cr.P.C. for removal of
nuisance.
 The Magistrate ordered that within 15 days it should be cleared.
 But it did not happen. The case reached the Supreme Court.
 The Municipality pleaded for lack of sufficient funds and asked for more
time.
 The court turned down the plea and pointed out that 8 years are over after
the order.
 So the court framed a scheme and fixed a time table to implement the same
and even to supervise the implementation of the scheme and gave orders to
prosecute the Municipality if it was not implemented within a year.
 The court asked the state government to provide the funds. In this case a
provision of Cr.P.C. was used for the enforcement of public duties.

Q.11. EASSY ON ADMINISTRATIVE TRIBUNAL.

 The decision making or adjudicatory functions of the administration are
exercised in such a variety of ways that it is difficult to bring them under any
biographical control.
 However the most popular modes of adjudication is the tribunals. The
administrative tribunals constitute under the provisions of Articles 323 A
and 323 B of the Indian Constitution. They are
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 Statutory tribunals
 Intensive form of Government is responsible for entrusting the
administration with adjudicatory powers.
 For the exercise of this power, a tribunal is a very effective and
efficacious instrument, which from a functional point of view is
somewhere between a court and the Government department exercising
adjudicatory power.
 The dictionary meaning of tribunal is ‘seat of judge’, which widely used
entails the ‘court’ also.
 In Administrative law, the term tribunal is used in a special sense and
refers to adjudicatory bodies outside the sphere of ordinary courts of the
land.
 It must be administrative in character and vested with judicial powers to
adjudicate (decide) on question of law or fact affecting the rights of
citizens in a judicial manner.
 In Kihoto Hollohan v/s Zachilhu the Supreme Court referred to its
earlier decisions and observed that in order to determine whether an
authority exercising adjudicatory powers is a tribunal or not, the test is
whether:
1) There is a lis – an affirmation by one party and denial by the
others;
2) The dispute involved decision on the rights and obligations of
parties;
3) The authority is called upon to decide it.
Administrative tribunals have the following characteristics:
1. An administrative tribunal is the creation of a statute thus has statutory
origin.
2. It has some trappings (accessories, aspects) of a court, but not all.
3. It is entrusted with the judicial powers of a State and thus, performs
judicial and quasijudicial functions as distinguished from pure
administration or executive functions and is bound to act judicially.
4. Even with regard to procedural matters, an administrative tribunal
possesses powers of a court to summon witnesses, to administer oath
and to compel production of documents, etc.
5. It is not bound by strict rules of evidence and procedure.
6. The decisions of most of tribunals are in fact judicial rather than
administrative as they record findings of facts objectively and then
apply law to htem without regard to executive policy.
7. Most of the tribunals are not concerned exclusively with cases in
which the Government is a party; they also decide disputes between
two parties.

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 8. Administrative tribunals are independent and they are not subject to
any administrative interference in the discharge of their judicial or
quasi-judicial functions.
9. The prerogatives writs of certiorari, and prohibition are available
against the decision of administrative tribunals.

In India, tribunals are used in four different senses:

1. All administrative bodies exercising quasi-judicial functions, whether
as part and parcel of the department or otherwise, may be termed as
tribunals. They follow the rules of natural justice.
2. All those administrative adjudicatory bodies may be regarded as
tribunals which are outside the control of the department involved in
dispute, and hence, decide disputes like a judge free from any
departmental bias. E.g. Income Tax Appellate Tribunal is under
Ministry of Law and not Ministry of Finance and so can decide matters
impartially.
3. As used in Article 136 of the Constitution has a special meaning. With
reference to its special leave jurisdiction, the Supreme Court held that
the authority must exercise ‘inherent judicial powers of the State’.
Thus the test to identify a tribunal is not its control, composition, or
procedure but its functions.
4. The term tribunal is also used for those tribunals which are constituted
and established under Article 323 A and 323 B of the Indian
Constitution, such as administrative service tribunals. These tribunals
have a Constitutional origin and enjoy the powers and status of a High
Court in matters within their jurisdiction and amenable (open) to the
jurisdiction of the Supreme Court and the High Courts under sections
32, 136 and 226 of the Constitution.
 In India, these tribunals do not follow any uniform procedure.
 The procedure is sometimes laid down in the statute and sometimes it is left
free to develop its own procedure.
 However, the procedure of the tribunals should not violate the requirements
of fair procedure and they must conduct themselves with openness, fairness
and impartiality.
 Therefore the tribunals have to give reasons for their decisions which is
necessary for good judicial review.
 The principle of res judicata in its technical sense does not apply to the
tribunals.
 Tribunals are bound by the law declared by the Supreme Court, and the
tribunals working under the territorial jurisdiction of a High Court are bound
by the law laid down by that High Court. They are subject to the writ
jurisdiction of the Supreme Court and High Courts.

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  As the tribunals are under the supervisory jurisdiction of High Court, various
High Courts have laid down a few rules regarding the functioning of these
tribunals.
 In Mallappa Murigeppa Sajjan v/s State of Karnataka, the Karnataka
High Court held that the Government cannot suspend the working of a
tribunal.
 In India there is a need for an agency which could supervise the functioning
of decisionmaking and rule-making administrative agencies.
 Such an agency would help in the development of administrative justice as a
system.

Domestic tribunals
 The term domestic tribunal refers to those administrative agencies which are
designed to regulate professional conduct and to enforce discipline among
the members by exercising investigatory and adjudicatory powers.
 Such agencies may be contractual or statutory.
 Contractual domestic tribunals are those which exercise jurisdiction arising
not from any statute but an agreement between the parties.
 It is not subject to the writ jurisdiction of the court, but in certain remedy by
way of injunction, declaration or damage may be available.
 Statutory domestic tribunals are those which derive power and authority
from a statute and exercise regulatory and disciplinary jurisdiction over its
members.
 They are free to develop their own procedure, but in every case they are
bound to follow the principles of natural justice.
 The decisions of these tribunals are subject to writ jurisdiction of the
Supreme Court and High Courts in the same manner as any other statutory
tribunals.
 However the scope of judicial review is limited as the essential function of a
domestic tribunal is discipline among its members.
 Besides tribunals there exists a whole multitude of administrative officers
and agencies exercising adjudicatory powers in varied forms.
 No systematic research has so far been undertaken in India.
 Right to adjudication by an independent and impartial forum is a
fundamental right covered under Article 14 of the Constitution.
 The Supreme Court in Union of India v/s President, Madras Bar
Association made valuable recommendations for the better working of
administrative tribunals and regulatory agencies exercising adjudicatory
powers.
 The Supreme Court made the following recommendations to make these
forums true vehicles of justice.
1) The tribunals must be independent of civil services.

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 2) The tribunals should not become post-retirement havens for civil
servants.
3) Independence of the tribunals must be ensured.
4) Members of the tribunal’s should be independent persons and not
serving civil servants.
5) Even technical members must not be civil servants.
6) Continued existence of the tribunals must not be dependent on the will
of the Government.
7) The tribunals must not depend on Government for infrastructural
facilities or personnel.
8) The tribunals should resemble more the court and not bureaucratic
boards.
9) There should be a separation between administrative and adjudicatory
functions of the regulatory agency.
10) Members of the tribunal should not retain lieu in any government
department.
11) The tribunal must be headed by judicial persons and not technical
persons.
12) High Court jurisdiction may be supplemented but cannot be
supplanted.
 Can enquiry be instituted against person exercising quasi-judicial powers
Recently in Union of India v/s K. K. Dhawan, the Supreme Court has
answered this question in the affirmative.
 In this case, an Income Tax officer exercising quasi-judicial powers, while
deciding the case, acted with undue haste to give benefit to the assesses.
 Departmental enquiry was instituted against him.
 Holding the departmental action valid, the court held that when an officer in
exercise of judicial or quasi-judicial powers acts negligently or recklessly or
in order to confer under favour on a person, he is not acting as a judge and
hence can be subjected to disciplinary action.
 Such action can be taken in the following cases:
1) Where the officer has acted in a manner as would reflect on his
reputation for integrity or good faith or devotion to duty.
2) If there is a prima facie case to show recklessness or misconduct in
the discharge of duties.
3) If he has acted in a manner unbecoming of a Government servant.
4) If he has acted negligently or omitted the prescribed conditions which
are necessary for the exercise of statutory powers.
5) If he has acted in a manner to unduly favour a party.
6) If he has been actuated by corrupt motives, however small the bribe
may be.

Q.12. LOKPAL AND LOKAYUKTTA.

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Introduction
 A bill to provide for the establishment of a body of Lokpal for the Union and
Lokayukta for States to inquire into allegations of corruption against certain
public functionaries
 Is an anti- corruption Act of Indian Parliament in India which "seeks to
provide for the establishment of the institution of Lokpal to inquire into
allegations of corruption against certain public functionaries and for matters
connecting them".
 The Bill was tabled in the Lok Sabha on 22 December 2011 and was passed
by the House on 27 December as The Lokpal and Lokayukta Bill, 2011.
 It was subsequently tabled in the Rajya Sabha on 29 December.
 After a marathon debate that stretched until midnight of the following day,
the vote failed to take place for lack of time.

Composition of Lokpal
 The institution of Lokpal is a statutory body without any constitutional
backing.
 Lokpal is a multimember body, made up of one chairperson and maximum
of 8 members.

Who can become the Chairperson?

 The person who is to be appointed as the chairperson of the Lokpal should
be either of the following:
 Either the former Chief Justice of India
 Or the former Judge of Supreme Court
 Or an eminent person with impeccable integrity and outstanding
ability, having special knowledge and expertise of minimum 25 years
in the matters relating to anti- corruption policy, public
administration, vigilance, finance including insurance and banking,
law and management.
Who can become a member?
 Out of the maximum eight members, half will be judicial members.
 Minimum fifty per cent of the Members will be from SC / ST / OBC /
Minorities and women.
Judicial Member
 The judicial member of the Lokpal should be:
 either a former Judge of the Supreme Court or a former Chief Justice
of a High Court
Non-Judicial Member
 The non-judicial member should be an eminent person with impeccable
integrity and outstanding ability,

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  having special knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance
including insurance and banking, law and management.

Who cannot become the chairperson?

 The following persons cannot become chairperson of Lokpal:
 MPs and MLAs
 Persons convicted of any offense involving moral turpitude
 Less than 45 years of age
 Members of Panchayats or Municipality
 A person who was removed or dismissed from the public service
 A person who holds any office of trust / profit; if so, he would need to
resign from Lokpal
 A person who is affiliated to a political party
 Carries on some business / profession; if so, he would need to quit
some business.
Appointment of Chairperson and members
 The members are to be appointed by President on the recommendations of a
selection committee.
 This selection committee is made up of:
 Prime Minister—Chairperson;
 Speaker of Lok Sabha
 Leader of Opposition in Lok Sabha
 Chief Justice of India or a Judge nominated by him / her
 One eminent jurist Term of Office

The term of office for Lokpal

 Chairman and Members is 5 years or till attaining age of 70 years.
 The salary, allowances and other conditions of service of chairperson are
equivalent to Chief Justice of India and members is equivalent to Judge of
Supreme Court.
 If the person is already getting the pension (for being a former judge), the
equivalent pension amount will be deducted from the salary.
 The source of salary for Lokpal and Members is Consolidated Fund of India.
 If the chairperson dies in office or has resigned from the post, President can
authorise the senior-most Member to act as the Chairperson until new
chairperson is appointed.
 If chairperson is not available for certain functions due to leave, his job will
be done by senior most member.

Officials of Lokpal
 There are three important officers of Lokpal.

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  They are appointed by Lokpal Chairperson.
 Secretary to Lokpal
 Director of Inquiry
 Director of Prosecution There is one secretary appointed by the
chairperson from a panel of names sent by central government.
 The Director of Inquiry and Director of Prosecution cannot be below the
rank of Additional Secretary to the Government of India.
 These officials will also be appointed by chairperson.

Inquiry Wing of Lokpal

 According to the act, the Lokpal would constitute an Inquiry Wing, which is
to be headed by Director of Inquiry.
 Its function is to conduct the preliminary inquiry into any offence alleged to
have been committed by a public servant punishable under the Prevention of
Corruption Act, 1988.
Prosecution Wing
 According to the act, the Lokpal by notification would constitute a
Prosecution Wing.
 This wing will be headed by the Director of Prosecution for the purpose of
prosecution of public servants.

Jurisdiction of Lokpal
 The following come under the jurisdiction of Lokpal:
a) Prime Minister of India, under certain conditions as stipulated in the
adjacent box.
b) All ministers of the Union
c) Members of Parliament except for matters related to article 105 of
constitution.(that is anything said or a vote given by him in
Parliament)
d) Group ‘A’ or Group ‘B’ officers
e) Group ‘C’ or Group ‘D’ officials
f) Any person who is or has been in-charge (director / manager/
secretary) of anybody / society set up by central act or any other body
financed / controlled by central government.
g) Any other person involved in act of abetting, bribe giving or bribe
taking

Lokpal Benches
 A Lokpal Bench will be constituted by the Chairperson with two or more
members.
 Every Lokpal Bench has to have at least half members as judicial members.
If bench consists of Chairperson, it will be headed by him.

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  If the bench does not consist of chairperson, it will be headed by a judicial
member only.
 The Lokpal benches will sit in New Delhi or any other places as decided by
Lokpal.
 The benches can be constituted and reconstituted by Chairperson time to
time.

How Lokpal works?

 Here is a simple account of how Lokpal works.
 Lokpal first of all receives a complaint.
 On receiving the complaint, it needs to decide if it would proceed further.
Once it decides to proceed further, it would order a preliminary inquiry by
either its own Inquiry Wing or other agency such as Delhi Special Police
Establishment (CBI).
 The Preliminary enquiry has to be done within ninety (90) days of receiving
complaint.
 It can be increased to further 90 days for reasons recorded in writing. Thus,
preliminary enquiry has to be done in 6 months.
 The preliminary inquiry would ascertain if there is prima facie a case to
proceed further.
 Now, here is a loop.
 If the complaint is related to Group A to Group D officers, Lokpal would
refer the complaint to CVC.
 CVC will inquire and do as follows:
 In case of Group A and B officers, it would make a report and submit
it to Lokpal
 In case of Group C and D Officers, it would itself proceed as per CVC
act 2003.
 The Inquiry Wing or CBI can do the search and seizure operations etc.
 They would make a report and this report will be taken up by a Lokpal
bench of minimum 3 members.
 This bench will give an opportunity to the allegedly corrupt officer to be
heard of.
 After this, the following three alternatives will be there to proceed for:
 If the officer is guilty, Lokpal will grant sanction to its Prosecution
Wing or CBI to file charge sheet against him.
 It can also direct initiation of departmental proceedings.
 If the officer is found innocent, Lokpal would direct the closure of
report before the Special Court against the public servant and now
would proceed against the complainant for making false complaints.

Powers of Lokpal
 The Lokpal has following powers:

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  It has powers to superintendence over, and to give direction to CBI.
 If it has referred a case to CBI, the investigating officer in such case
cannot be transferred without approval of Lokpal.
 Powers to authorize CBI for search and seizure operations connected
to such case.
 The Inquiry Wing of the Lokpal has been vested with the powers of a
civil court.
 Lokpal has powers of confiscation of assets, proceeds, receipts and
benefits arisen or procured by means of corruption in special
circumstances.
 Lokpal has powers to recommend transfer or suspension of public
servant connected with allegation of corruption.
 Lokpal has power to give directions to prevent destruction of records
during preliminary inquiry.

Special Courts
 On the recommendation of the Lokpal, the Central Government shall
constitute Special Courts to hear and decide the cases arising out of the
Prevention of Corruption Act, 1988 or under Lokpal Act.
 Such courts are required to finish each trial within a period of one year from
the date of filing of the case in the Court.
 This one year period may be extended for 3 months by recording in writing.

Complaints against the Lokpal

 According to section 37 of the act, the Lokpal shall not inquire into any
complaint made against the Chairperson or any Member of its own
institution.
 The chairperson or member can be removed from his office by President on
grounds of misbehavior after a Presidential reference to Supreme Court on a
petition signed by 100 MPs.
 However, President can also remove the chairperson / members under
exceptional circumstances such as if they are adjudged insolvent; or take a
paid job or is / are unfit because if infirm mind or body in the opinion of
president.

Important features of the Lokpal and Lokayuktas Bill, 2011.

 Lokpal at the Centre and Lokayukta at the level of the states.
 Lokpal will consist of a chairperson and a maximum of eight members, of
which 50 per cent shall be judicial members.

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  50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities
and women.
 The selection of chairperson and members of Lokpal shall be through a
selection committee consisting of Prime Minister, Speaker of Lok Sabha,
Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting
Supreme Court judge nominated by CJI, eminent jurist to be nominated by
the President of India on the basis of recommendations of the first four
members of the selection committee.
 Prime Minister has been brought under the purview of the Lokpal.
 Lokpal’s jurisdiction will cover all categories of public servants.
 All entities receiving donations from foreign source in the context of the
Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per
year are brought under the jurisdiction of Lokpal.
 Provides adequate protection for honest and upright public servants.
 Lokpal will have power of superintendence and direction over any
investigation agency including CBI for cases referred to them by Lokpal.
 A high powered committee chaired by the Prime Minister will recommend
selection of the Director, CBI.
 Directorate of Prosecution headed by a Director of Prosecution under the
overall control of Director.
 The appointment of the Director of Prosecution, CBI on the
recommendation of the Central Vigilance Commission.
 Transfer of officers of CBI investigating cases referred by Lokpal with the
approval of Lokpal.
 The bill also incorporates provisions for attachment and confiscation of
property acquired by corrupt means, even while prosecution is pending.
 The bill lays down clear time lines for preliminary enquiry and investigation
and trial and towards this end, the bill provides for setting up of special
courts.
 A mandate for setting up of the institution of Lokayukta through enactment
of a law by the State Legislature within a period of 365 days from the date of
commencement of the Act.

Lokayukta
 Every State shall establish a Lokayukta by an state act, if it has not done so
as of now.
What is not there in our Lokpal act?
 The Lokpal and Lokayuktas Act is perhaps the only legislation in the history
of independent India, which has been so widely discussed, both inside and
outside Parliament and has, thus generated so much awareness in the public
mind about the need to have an effective institution of Lokpal to tackle
corruption.

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  However, the act passed hitherto is verbose, full of negatives and has
numerous cross references. Still, here are a few things which are absent from
this law:
 No protection to whistleblowers: This was one of the main demands
in the Janlokpal Bill. The recently passed act has not at all provisions
for whistleblower protection. We have to have a separate law for that.
 There is only one section on Lokayukta in the act which says that
within one year, the states shall enact the Lokayukta act. However,
there is nothing regarding their composition, powers etc. In fact, states
are free to define how their own Lokayukta would be appointed, how
they would work and under what circumstances they would serve.
 The Lokpal act brings the PM under its jurisdiction, yet the Judiciary
has been left. Judiciary is NOT subject to Lokpal jurisdiction.
 The provisions of the act have become anomalous because of
Lokpal’s relations with the CBI. Under the provisions of the act,
Lokpal has been vested with all powers related to only those cases
which it refers to CBI. Instead, there was a long demand that CBI
should be merged with Lokpal.
 The current provisions are open to misuse. There are no provisions
related to Citizen’s charter. There are no adequate provisions to
appeal against the Lokpal. Lokpal cannot conduct inquiry against
itself.

Additional Notes: Prime Minister under Lokpal

 According to the Lokpal and Lokayukta Act 2013, the PM comes within the
jurisdiction of Lokpal but Lokpal will not inquire the PM if the allegation of
corruption is related to international relations, external and internal security,
public order, atomic energy and space.
 Further, allegation against Prime Minister can be taken up for inquiry only
when the two conditions as follows are satisfied:
 Full bench of the Lokpal consisting of its Chairperson and all Members
considers the initiation of inquiry
 At least two-thirds of its members approves of such inquiry Such inquiry
against the Prime Minister will be done in camera.
 If the Lokpal concludes that the allegation is false and the inquiry should be
dismissed, the records of the inquiry shall not be published or made
available to anyone.

Conclusion
 The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment
of Lokpal for the Union and Lokayukta for States to inquire into allegations
of corruption against certain public functionaries and for related matters but
as the Act has been molded and the actually content which was supposed to

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 be brought in force which was mentioned in Jan Lokpal bill has changed
due to that, the act is not able to deliver exact what it is made for, neither it
totally protects the whistle blower.

Q.13. DISCUSS RIGHT TO INFORMATION.

What is RTI Act?

 Provides a legal framework of citizens’ democratic right to access to
information under the control of public authorities ;
 To promote transparency and accountability in the functioning of every
public authority.
 Initially, the Freedom of Information Act, 2002 was passed which was
assented by the President on 6th January 2003. It was later repealed and in
its place the Right of Information Act, 2005 was passed.
 The Preamble of the Act provides for setting up the practical regime of the
right to information for all citizens to secure access to information under the
control of public authorities in order to promote transparency and
accountability in the working of every public authority.
 Information includes any information in any material in any form, including
records, documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any private
body which can be accessed by a public authority under any other law for
the time being in force.
 The right to information covers inspection of work, documents, record and
its certified copy and information in the form of diskettes, floppies, video
cassettes in electronic forms, tapes or stored information in computers, etc.
 Information can be provided on written request by electronic means with
payment of nominal fee.
 The authority is supposed to provide the information in 30 days from the
date of request and if it concerns life and liberty then within 48 hours.
 Penalty for refusal of application or for not providing information within
stipulated time is Rs. 250 per day, total amount not exceed 25,000.
 The Act prohibits information in certain specified categories and puts
restrictions on third party information.
 Section 8 of the Act provides Exemption from disclosure of information.
1) information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;
2) information which has been expressly forbidden to be published by
any court of law or tribunal or the disclosure of which may constitute
contempt of court;
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3) information, the disclosure of which would cause a breach of privilege
of Parliament or the State Legislature;
4) information including commercial confidence, trade secrets or
intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information;
5) information available to a person in his fiduciary relationship, unless
the competent authority is satisfied that the larger public interest
warrants the disclosure of such information;
6) information received in confidence from foreign Government;
7) information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of information or
assistance given in confidence for law enforcement or security
purposes;
8) information which would impede the process of investigation or
apprehension or prosecution of offenders;
9) cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other officers: Provided that the decisions
of Council of Ministers, the reasons thereof, and the material on the
basis of which the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or over: Provided
further that those matters which come under the exemptions specified
in this section shall not be disclosed;
10) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the disclosure of
such information: Provided that the information which cannot be
denied to the Parliament or a State Legislature shall not be denied to
any person.
11) Notwithstanding anything in the Official Secrets Act, 1923 (19
of 1923) nor any of the exemptions permissible in accordance with
sub-section (/), a public authority may allow access to information, if
public interest in disclosure outweighs the harm to the protected
interests. (l) Subject to the provisions of clauses (a), (c) and (i) of
sub-section (/), any information relating to any occurrence, event or
matter which has taken place, occurred or happened twenty years
before the date on which any request is made under section 6 shall be
provided to any person making a request under that section: Provided
that where any question arises as to the date from which the said

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 period of twenty years has to be computed, the decision of the
Central Government shall be final, subject to the usual appeals
provided for in this Act.
 For the administration of the Act, provision is made for the appointment of
Public Information Officer (PIOs), State Information Commissions and
Central Information Commission.
 Central Information Commission is a multimember Commission and Mr.
Wajahat Habibullah has been appointed it first Chairperson.
 State Commissions are to be constituted by the respective State
Governments.
 These are constituted into independent and autonomous commissions so that
they may discharge their functions without fear or favour. They have power
of civil court.
 Any aggrieved party can appeal against the decision of the PIO to the
Officer who is senior in rank within 30 days and a second appeal is also
provided before the Central or State Information Commission, as the case
may be, within 90 days.
 Rule-making power has been vested in the respective governments and rules
made under the Act are to be laid before Parliament or State Legislatures, as
the case may be.
 Judicial intervention is prohibited and therefore, court shall have no power
to entertain any suit or proceeding in respect of any order made under the
Act.
 Right to know has a definite implication for courts also.
 People have a right to access courtrooms and court judgments, irrespective
of the fact whether it affects them individually or generally as a
member/members of the community.
 Right to know also has another dimension.
 The Bhopal gas tragedy and its disaster syndrome could have been avoided,
had the people known about the medical repercussions and environmental
hazards of the deadly gas leaked from the Union Carbide chemical plant at
Bhopal.
 Therefore the Government has a duty to provide people baseline health data
around existing hazardous plants. Failure to do so would make the
Government liable.
 The bureaucrats put difficulties in the way of public’s legitimate access to
information. Like colonial heritage they think that he is acting on behalf of
the President or the Governor and not on behalf of the people.
 Today there is secrecy in all segments of Governmental administration and
public bodies, statutory or non-statutory.
 They want to play it safe.
 Seminar on ‘press, society, and Government’ organized by the Servants of
the People Society at Chandigarh, the ‘right to know’ received enormous

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 support. B.C. Verghese, Editor-in-chief, Indian Express said that
information cannot be doled out like ration and the ‘executive privilege’ was
an invasion against democracy which was sustained by the people.
 In a democracy, the citizen’s right to know is assumed rather than
guaranteed. In fact, the right is derived from the Government’s
accountability and answerability to the people.
 There is sometimes conflict between the right to know and right to privacy
of public figures.
 The right to privacy should not be allowed as a pretext to suppress
information

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