Consti notes

Territorial sovereignty: Ability to deal with territory as you like

Up to 1952, Pakistan didn’t cause any disputes wrt Berubari

Qsns relating to Berubari case:

- Is legislation necessary under Art.3?
- Whether constitutional amendments are a prerequisite?
- How to deal with enclaves?

Cases we’re looking at now:

 Ram Kishore Sen v Union of India
 Maganbhai Ishwarbhai Patel v Union of India, AIR 1967 SC 783

For secession: constitutional amendment + legislation required

Module 3
Legislative competence

Vertical and horizontal division of power

Power division: territorial and subject matter

Article 245
Power of parliament is not absolute
Parliament: laws prevailing all over India
State: can make laws wrt the whole or a specific part of the State

Extra territorial application to law: such a protection only available to parliament and not
state
Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118

- Doctrine of territorial nexus

- Based in UK, has no director in India but partner in Wallace (which is based in
Bombay)
- Taxed under s.4A(c)
- Challenge: should be declared ultra vires bcz non-resident
- You can only be taxed if you have sufficient territorial connection with India
- If income generated in India > income generated outside, then it sufficient to establish
a real connection between the assessee and the State

DOCTRINE OF TERRITORIAL NEXUS

- A law will not be invalid just because it is operating for citizens outside the place

Poppatlal Shah v. State of Madras, AIR 1953 SC 274

State of Bombay v. R.M.D. Chamarbaughwala AIR 1957 SC 699

The existence of sufficient territorial nexus is essentially a question of fact

State of Bihar v. Charusila Dasi AIR 1959 SC 1002

- Bihar Hindu Religious Trusts Act, 1950

Karulkar v State of Gujarat 1994 5 SCC 459

- Gujarat Agricultural Lands Ceiling Act, 1960

Article 246
 - Parliament has exclusive powers to make laws with respect to any of the matters
enumerated in List 1 (Union List)
- Parliament (subject to clause 1), the legislature of any state also, have the power to
make laws with respect to any of the matters enumerated in List 3 on the Seventh
Schedule (Concurrent list)
- Legislature of any state has exclusive power to make laws enumerated in List 2 in the
seventh schedule (state list)

Article 248 (to be read with list 1, entry 97)

- (subject to art. 264A) Parliament has exclusive power to make any law with respect to
any matter not enumerated in the concurrent list or state list

Doctrine of Pith and Substance

- “true nature and character” of the legislature to be taken into consideration

- If the infringement is such that it does not majorly harm the parliament, then the true
nature of the enactment has to be seen and if it truly is in consonance with the
parliament
- Regard has to be given to the enactment as a whole, objectives of the enactment,
scope and effect of its provisions and extent of invasion.
- Diff between incidental encroachment and intentional encroachment

Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60

- Bengal Money Lenders Act, 1940

- Regulating lending activity in the state
- Under entry 27 (now entry 30, List 3): money-lending and money-lenders; relief to
agricultural indebtedness
- Challenged for being ultra vires: beyond the legislative competence of Bengal
legislature; affected the right of holders of promissory notes to recover amount due on
their promissory notes
- Under entry 28 (now e.46, L1): bills of exchange, cheques, promissory notes and
other like instruments
- It was held that the pith and substance of the act fell within list 2 since it was
essentially relating to money-lending; it was incidental that it had encroached upon
matters reserved for federal legislature i.e. promissory notes
- Act was held to be valid
State of Rajasthan v. G. Chawala, AIR 1959 SC 544

- Ajmer (Sound Amplifiers Control) Act, 1952

- Regulating and restricting the use of sound amplifiers
- E.6, L2: public health and sanitation; hospitals and dispensaries
- E.31, L1: posts and telegraphs; telephones, wireless, broadcasting and other like
forms of communication
- Held: the legislation in pith and substance fell within L2
- Incidentally encroaches upon the subject of broadcasting and communication under
union list

Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019

- Bihar finance act, 1981

- Essential Commodities Act
- Bfa: have to pay surcharge on gross turnover of over 5 lakhs and prohibits shifting of
tax liability onto the consumer
- Essentials act: shifting of tax liability onto consumer
- E.54, L2: taxes on the sale or purchase of goods other than newspapers, subject to the
provisions of entry 92A of list 1
- E.33, L3 (conflicting)
- Constitutional validity of Bihar Finance Act,1981 challenged

Governor General in Council v. Province of Madras, AIR 1945 PC 98

- Madras General Sales Tax Act, 1939

- Entry 48, L2
- Entry 45, L1 (now E.84, L1)’
- Focus is on first sale
- Emphasis on substance of the tax and not the form
- The tax imposed by the madras act is not a duty of excise in the cloak of tax
- One focuses on sale whereas the other depends on production

State of Bombay v. F.N. Balsara, AIR 1951 SC 318

- Bombay Prohibition Axt, 1949

 - E.31, L2 (Now E.8, L2)
- E.19, L1 (Now E. 41, L1)
Kartar Singh v. State of Punjab

 TADA
 Public order

DOCTRINE OF HARMONIOUS CONSTRUCTION

 Diff entries in diff lists may overlap or may be in conflict with each other
 Principle of supremacy of union list should not be applied mechanically
 Entries should be construed in a manner that reconciled the conflict
 To harmonise, it may be necessary to read and interpret necessary entries together
 Only when reconciliation is impossible, then the non-obstante clause u/a.246 should
be invoked which gives primacy to central legislation

Doctrine of repugnancy: direct encroachment

Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044

ITC case

REPUGNANCY CLAUSE

366 is a definition clause in constitution (existing law or earlier law to understanding

definitions)
Art.246: non-obstante clause
Art.254: inconsistency between laws made by Parliament and laws made by the Legislatures
of State

If the parliament made a law before the state, they would prevail
If the state made a law bfore the parliament then also parliament would prevail
If state law comes after parliament’s law, and in the event that the state law should prevail,
the law needs the president’s assent in such a case

State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375

 Kerala Chitties Act, 1975

 S.4 of the act was amended via Finance Act, 2002
 Central Chit Funds Act, 1982
 Challenge: s.4 (1) (a) of the 1975 Act as repugnant under A.254(1)

RESIDUARY CLAUSE

Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431

 Assam Forces (Special Powers) Act, 1958 enacted by Parliament

 Assam Disturbed Areas Act, 1955, enacted by State Legislature of Assam
 Entry 2, L-1
 By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A, was inserted in
L1
 Entry 1, L2
 Contention: public order, centre can govern or not?

POWER OF THE PARLIAMENT TO LEGISLATE WITH RESPECT TO A

MATTER IN STATE LIST
Articles 249, 250, 251 and 252

 Art 249: power of parliament to legislate with respect to a matter in the State List in
the National Interest


MODULE IV: Union and State Executive

Kihoto hollohan v zachillhu
THE SUPREME COURT

HIGH COURTS IN INDIA

Judicial appointment: don’t forget to focus on because it’s important for exams
Art.225
Delhi Bombay Mumbai and Calcutta have og jurisdiction in terms of civil suits pertaining to
monetary value
Appellate jurisdiction : civil
 Writ petition
 First appeal
 Family court appeal
 Letters patent appeal
 Second appeal
 Appeals from order
 Contempt appeal
 Civil revision application
 Misc. civil application
 Civil references
 Tax appeals
 Arbitration petition
 Civil application

Source of HC’s appellate jurisdiction lies in cpc, crpc and special provisions

Art.226: power of high courts to issue certain writs

Art 227: power of superintendence over all courts by the high court
Art. 217 judicial appointments to the high courts

AMENDMENT
Indian constitution: partly rigid and partly flexible
Amendment procedure: flexible parts
a.368 existed before the 24th amendment
only provided procedure to amend that time

Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458

Constitution (First Amendment) Act, 1951 was challenged

- Inserted 31A and 31B

Issue
- Does a Constitutional Amendment under Article 368 constitute as “law” under Article
13?

Held:
- Amendment is made under constituent power, not ordinary legislation power
- There is a clear demarcation between ordinary law, which is made in the exercise of
legislative power, and constitutional law, which is made in the exercise of constituent
power
- In the context of A.13, “law” must be taken to mean
 Rules or regulations made in exercise of ordinary legislative power and
 NOT amendments to the Constitution made in the exercise of constituent
power
- Parliament has power to amend the Constitution without any exception
 And FRs are not immunized from the process of Constitutional Amendments
- Therefore,
 A.13 should be read subject to A.368
 A.13(2) does not affect amendments made under A.368 and Parliament can
amend the FRs by following the “procedure” laid down in A.368

Golak Nath v. State of Punjab, AIR 1967

- Overruled Shankari Prasad and Sajjan Singh

- To avoid a possible erosion of fundamental rights
- A.368 talks about “Procedure to amend the Constitution”; not power
 - The power to amend the Constitution was to be found in A.248 in the residuary clause
r/w E.97, L1: not A.368
- Such power was not mentioned in any article or legislative entry
- No distinction between ordinary law made under “legislative” process and
constitutional amendment made under “constituent” process.
- U/a. 368, a constitutional amendment is to be enacted by following procedure which
is similar to the procedure for making laws.
- The provision for presidential assent is similar in both the cases.
- Therefore, the amendment is law and cannot abridge FR: subject to A.13
- Doctrine of Prospective Over-ruling
- Did not invalidate the amendments made to the FR
- But ruled that the Parliament would not have power to abridge for take away FR in
future.
- Para 78: the aforesaid discussion leads to the following result:
- The power of the Parliament to amend the Constitution is derived from Arts. 245,
246, 248 of the Constitution and not from Art.368 thereof which only deals with
procedure. Amendment is a legislative process.
- Amendment is ‘law’ within the meaning of Art.13 of the Constitution and, therefore,
if it takes away or abridges the rights conferred by Part III thereof, it is void.
- The constitution (first amendment) act, 1951, constitution (fourth amendment) act,
1955 and the constitution (seventeenth amendment) act, 1964, abridge the scope of
FR. But based on earlier decisions of the Court, they were held to be valid.
- Doctrine of prospective overruling: decision will only have prospective operation
- We declare that the parliament will have no power from the date of this decision to
amend any of the provisions of Part III of the Constitution so as to take away or
abridge the FRs enshrined in therein.

Constitution (twenty-fourth) Amendment Act, 1971

- Made several amendments to Article 368 itself

- Word ‘power’ was added to the Marginal Note
- Power of the Parliament to amend the Constitution and procedure thereof
- Article 368 (1) and (3) were added
- A.368 (1)
- A.368 (3): nothing in art.13 shall be applicable to any amendment made under this
article
- Changes in A.368 (2): it shall be presented to the President who shall give his assent
to the Bill and thereupon
- Art.13 (4) was added: nothing in this article shall apply to any amendment of this
const made under article 368

-catchup notes-
Judicial Appointments

Case List
- S.P. Gupta v. Union of India
- Subhash Sharma v. Union of India
-

Federalism: essay question

Territory and reorganization: hypo possible
If leg competence: then essay
Ordinance making power (v. imp): vvv imp
Anti-defection law: vvvv imp (acc to 10 th sched, para 1, also covers when a MLA resigns
voluntarily)
Constitutional emergency: implications on fr: hr khanna
Basic structure (justice jalmeshwar, ngac case)
Judicial independence: essay ques

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