AL – AMEEN COLLEGE OF LAW

MODEL ANSWER PAPER - 2013

First Semester of Three Year LL.B. Examination
SUBJECT: CONSTITUTIONAL LAW
Duration : 3 Hours Max Marks : 100

Instructions :

1. Answer all 5 Questions.

2. One essay type and One short note question or problem from each unit
have to be attempted.
3. Figures to the right indicate marks.

UNIT-1

Q. NO. 1. (a). Discuss the principles of equality as laid under Article 14 of

the Indian Constitution. Marks: 15

Introduction:

The constitution of all countries gives to their citizens certain rights called
fundamental rights. Indian constitution also has conferred a number of
fundamental rights on the citizens of the country, and which are essential for a
man to lead a decent and respectable life and to attain the fullest development of
human personality. Part- III of the constitution deals with fundamental rights
from Articles 14 to 35. The fundamental rights are conferred to every citizen
against the Government. If any of the fundamental rights are violated, the
citizen of India can sue the state.

THE RIGHT TO EQUALITY UNDER ARTICLE 14:

Equality is one of the basic elements of democracy. Right to equality means

equality in all its forms i.e. legal civil and social. The object of right to equality
is to secure to the citizens equality in all its form. An article 14 to 18 of the
constitution guarantees the right to equality to every citizen of India. Article 14
embodies the general principles of equality before law and prohibits
unreasonable discrimination between persons. Article 14 embodies the idea of
equality expressed in the preamble. Various rights are included in the right to
equality.

Principles laid under Article 14:

Article 14 declares that the state shall not deny to any person equality before the
law or equal protections of the laws within the territory of India. Thus Article
14 uses two expressions “equality before law” and “equal protection of law”.
Article 14 is based upon the principles of natural justice. Equals have to be
treated equally and unequal ought not to be treated equally.

1. Equality Before Law:-

Equality before law in Article 14 is based on the principles of Rule of law. No

man is above the law of the land. There is no distinction before the law. The
concept of equality before law does not mean absolute equality among human
beings which is physically not possible to achieve. It is a concept implying
absence of any special privileges by reason of birth, creed or like in favour of
any individual and also the equal subjects of all individuals and classes to the
ordinary law of the land.

Equality before the law means that among equals the laws should be equal and
should be equally administered, that like should be treated alike. The right to
sue and be sued, to prosecute and be prosecuted for the same kind of action
should be same for all citizen of full age without distinctions of race, religion,
wealth, social status or political influence.

[Link] Protection of Laws:-

Equal protection of law is a positive concept, implying equality of treatment

under equal or similar circumstances. No one can be favoured more and no one
can be unfavoured more. Equal law should be applied to all persons in the same
situation. There should not be any discrimination between one person to
another. Equality must becomes a living reality for the large masses of people.
Article 14 applies to citizens and non- citizens of India. It only means that all
persons similarly circumstanced shall be treated alike both in privilages
conferred and liabilities imposed by the laws. Equal law should be applied to all
in same situation, and there should be no discrimination between one person
and another.

Exceptions to the Rule of law:

The rule of equality is, however not an absolute rule and there are number of
exceptions.

Firstly, equality before law does not mean the “powers of the private citizens
are the same as the powers of the public officials

Secondly, the equality before law does not prevent certain classes of persons
being subject to special rules.

Thirdly, today ministers and other executive bodies are given very wide
discretionary powers by statute.

Fourthly, certain members of society are governed by special rules in their

professions i.e. Lawyers, Doctors, Nurses, Members of Armed forces and Police
such classes of people are treated differently from ordinary citizens.

Article 14 permits classification but prohibits class legislation:-

The equal protection of laws guaranteed by Article 14 does not mean all laws
must be general in character. It does not mean that same law should apply to all
persons. It does not mean that every law must have universal application for.
Thus Article 14 forbids is class- legislation but it does not forbid reasonable
classification. The classification, however, must not be “arbitrary, artificial, or
evasive” but must be based on some real substantial distinction bearing a just
and reasonable relation to the object sought to be achieved by the legislation.

Leading Case- laws on right to Equality:

1. Ramakrishna Dalmia v/s Justice Tedndolkar [ AIR1958 SC 538]

In this case the Supreme Court held that Article 14 protects all persons
from discrimination by the legislative as well as the executive organ of
the state. Article 14 forbids class legislation it does not forbid reasonable
classification for the purpose of legislation.
2. Air India V/S Nargesh Meerza and others [AIR 1981 SC 335]
In this case was filed by the Air hostesses of Air India who challenged the
rules of Air India contending that there was too much gender
discrimination between the male crew and air hostesses from the
appointment stage to the retirement stage, promotions, emoluments etc.
The Supreme Court gave the judgement in favour of the petitioners, i. e.
air hostesses, holding that too much discrimination was shown by Air
India. The Supreme Court also held that the clauses regarding retirement
 and pregnancy were unconstitutional and struck them down. As a result
of the Supreme Court judgement, the period of retirement of air hostesses
was extended upto 45 years.
3. State of Madras V/S Champakam Dorairajan
The Madras Government had reserved seats in state medical and
engineering colleges for different communities in certain proportions on
the basis of religion, race and caste. The state defended the aw on the
social justice for all sections of the people. But the Supreme Court held
the view that the law is void because it classified students on the basis of
caste and religion.

OR

Discuss the legal position and significance of the preamble of the

constitution of India with decided cases.

Every constitution begins with a preamble. Accordingly, our constitution also

begins with a preamble. The word preamble is a Latin term which means “to go
before”, “introduction to important statute”. Preamble says briefly about the
objects, purpose intended to be served by the statute. The preamble represents
the aspirations of the people of India.

The preamble to an Act sets out the main objectives which the legislation is
intended to achieve. It is a sort of introduction to the statute and many a time
very helpful to understand the policy and legislative intent. In Berubari case, the
Supreme Court observed “ the preamble to the constitution is a key to open the
minds of the makers and shows the general purpose for which they made the
several provisions in the constitution”.

In other words it reflects the aspiration of the framers of our constitution with
regard to the establishment of a welfare state in India, and embodies the urge of
our people to unite themselves to build up a new nation which will ensure
justice, liberty, equality and fraternity to its citizens.

The Preamble declares:

“ We the people of India, having solemnly resolved to constitute India into a

Sovereign, Socialist, Secular Democratic Republic and to secure to all its
citizens:
Justice, Social, Economic and Political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity” and to promote among them all;

Fraternity assuring the dignity of the individual and the unity and the integrity
of the Nation.

In our constituent Assembly this twenty- sixth day of November- 1949 do

hereby adopt, enact and give to ourselves this constitution”.

SIGNIFICANCE OF THE PREAMBLE:

The significance of the preamble as follows:

1. We the people of India:

The phrase “we the people” has taken from the constitution of U.S.A. this
means that the constitution of India has been framed and enacted by the people
of India. The power to make the constitution had been achieved by the people of
India with great efforts. It was not derived by any authority under the
constitution of India.

2. Sovereign State:

India declared by the preamble itself as ‘Sovereign’. The word sovereign means
supremacy of the nation. Sovereign power is also described as that power which
is absolute and uncontrolled. Both internally and externally India is sovereign.
India at present is not under the control of any other nation as it maintains its
own sovereignty.

3. Socialistic:

This is a new term inserted in the constitutional 42 nd Amendment Act 1976. The
term socialist used in the preamble of our constitution signifies that the
constitution of India adopts socialistic pattern of society. That is, a form of
ownership and control of the means or factors of production and distribution by
the economy in the interests of the society as a whole and to ensure fair and
equitable distribution of the wealth of the country.

4. Secular:
Secularism is the basic structure of the constitution. Our Government respects
all religions. It does not uplift or degrade any particular religion. The word
secular used in the preamble of our constitution suggests that India is a secular
state that is in India, no religion is recognised as religion of the state.

5. Democracy:

The term ‘Democratic’ used in the preamble of our constitution, signifies that
the government gets authority from the will of the people. That is, the rulers are
elected by the people, and are responsible to the people. The real powers is in
the hands of the people. Every citizen of India who is aged 18 years and above,
is entitled to vote, irrespective of his caste, religion, race, economic position,
language. Democracy is failed in our neighbouring countries, it is very
successful in our country.

6. Republic:

The term Republic used in the preamble of our constitution signifies that India
has elected representatives as the head of the state. The president of India is the
elected head of the state. The President of India is not a hereditary monarch. He
is an elected person, chosen for a limited period, usually for 5 years.

7. Justice:

The preamble intends that the justice must be given to every citizen irrespective
of poverty, richness, caste, race, religion, sex, political power. Justice aims at
the attainment of common good. Justice includes social economic and political
justice. Social justice implies that all citizens are treated alike irrespective of
their caste, creed, religion etc. economic justice means treating the rich and the
poor equally. Political justice means equal right to all citizen in the political
process without any discrimination.

8. Liberty:

Liberty implies the creation of conditions necessary for the fullest development
of the personality of an individual which is essential for social progress. Liberty
is one of the pillars of the democratic system. Liberty implies liberty of thought,
expression, belief, faith and worship.

9. Equality:
Equality means equality of status and of opportunity. As all human beings are
born equal, they should be provided equal opportunity’s in all walks of life
under equal circumstances. Equality ensures equal protection of law.

10. Fraternity:

Fraternity means the spirit of brotherhood among all the sections of the people
of India. Fraternity is necessary to ensure both the dignity of the individual and
the unity and integrity of the nation.

SOME OF THE LEADING CASES RELATING TO SIGNIFICANCE OF

THE PREAMBLE:

1. In Beru Bari Case, the Supreme Court held that the preamble was not a part
of the constitution, and so, it could never be regarded as a source of any
substantive powers. It has limited application and can be resorted to where there
is any ambiguity in the statute. If the terms used in the constitution are
ambiguous or capable of two meanings in interpreting them some assistance
may be taken from the objectives enshrined in the constitution.

2. In Keshavananda Bharati Case, the Supreme Court rejected the above view
and held that the preamble is the part of the constitution. All importance has to
be attached to the preamble in a constitution should be read and interpreted in
the light of the grand and noble vision expressed in the preamble.

3. In Indira Gandhi V/S Raj Naraian

Indira Gandhi, the then Prime Minister and Raj Naraian were the rivals in a
General Elections of Parliament. Raj Narain filed a case against her contending
that she misappropriated her power in the elections. The Allahabad High Court
quashed the election of Indira Gandhi as void. To protect the seat of Prime
Minister ship, the Parliament inserted Article 329-A protecting Prime Minister
and Speaker from any election disputes and guaranteed for their term. The
Supreme Court held that certain provision of Article 329- A is against the Basic
Structure Theory, and it is against the essential element of “Democracy”
mentioned in the preamble. The Supreme Court, therefore, struck down certain
provisions Article 329- A as unconstitutional.

(b) Write Short- Notes: Marks : 5

What is Doctrine of Eclipse?

The Doctrine of Eclipse is based on Article- 13 (1). The word Eclipse means
hide. Any law made before the commencement of the constitution must be
consistent with the Part- III of the constitution, relating to Fundamental rights. If
any statute is inconsistent with the provisions of the part- III, such statute shall
become void. At the same time such statute shall not be treated as dead unless it
is abolished by parliament. It will be treated as sleepy. After the commencement
of the constitution, the unconstitutional provisions of such statute may be
removed, so that to bring the statute into active, or any constitutional
amendments may be made to remove the unconstitutional provisions removed,
the statute shall become free from all infirmity then only it will become
enforceable. This is called the Doctrine of Eclipse.

Features of Doctrine of Eclipse:

1. The doctrine of Eclipse is held to apply only to the pre- constitutional laws
and not to the post- constitutional laws. The reason for this is that the Act when
made, before the constitution was valid.

2. The impugned law was only eclipsed by the shadow of unconstitutionally.

When the shadow was removed by correcting the defects, the eclipse ceased and
the state shown in its splendour.

3. The Articles 13, 32, and 226 conferred the Supreme Court and High Courts
the power of judicial review.

4. The law when made must be a valid one.

OR

A magistrate issues an order authorising the investigating officer to take

the specimen handwriting and finger prints of Mr. “X”, an accused against
his willingness. “X” challenges the order stating that it violates his
Fundamental Right under Article 20 (3). Decide.

Article 20 of the constitution safeguards the rights of persons convicted of

offences. This Article is so important that the 44 th constitutional amendment
provides that this right or protection cannot be suspended even during an
emergency.
According to article 20 (3) “No person accused of any offence shall be
compelled to be a witness against himself”.

This article gives protection of self- incrimination. Self- incrimination means

conveying, information based upon personal knowledge of the person giving
information involving himself to be the prime part taker in the offence. The
object of Article 20 (3) recognises that privileges of an accused person to gourd
himself against self- incrimination. The accused can refuse to answer any
question that is put to him with the intention to incriminate.

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

UNIT- II

Q. NO. 2. (a) Explain the powers and functions of President of India.

Marks: 15

Article 52 of the constitution says that there shall be a President of India. He is

the head of the state. The Executive power of the union, Article 53 says, shall be
President. In accordance with the constitution either directly or through officers
subordinate to him.

Qualifications:- Article 58 lays down the qualifications which a person must

possess for being elected to the office of the President of India;

1. He must be a citizen of India.

2. He must have completed the age of 35 years.

3. He must be qualified for election as a member of the House of the People.

4. He must not hold any office of profit under the Government of India, or the
Government of any state or under any local or other authority subject to the
control of any of the said Governments.

POWERS AND FUNCTIONS OF THE PRESIDENT:

Democracy is a basic feature of the constitution. The executive power of the

Union shall be vested in the President. He should exercise his powers according
to the provisions of the constitution. Our President is not too strong and not too
week. The framers of the constitution placed him in a unique position. The
powers given to the President are not negligible. Under certain circumstances,
the President becomes more powerful, that too subject to the provisions of the
constitution. The various powers are given to the President of India. The powers
of the President can be classified under the following heads:

1. Executive Power:

The constitution has conferred extensive executive powers on the President. The
executive power of the Union of India is vested in him. He is the head of the
Indian Republic. All executive functions are executed in the name of the
President. He has the power to appoint the Prime Minister and on his advice
other Ministers are appointed, the judges of the Supreme Court, and the High
Courts, the Governors of the states, the Attorney- General, the comptroller and
Auditor- General, the Chairman and Members of the Public Service
Commission, the Members of the Finance Commission and Official
Commissions, Special officer for Scheduled Castes and Scheduled Tribes. The
above mentioned officials holds their office during the pleasure of the President.
This means that he has the power to remove them from their post. This power
is, however, to be exercised subject to the procedure prescribed by the
constitution.

2. Military Power:

The President is the Supreme Commander of the Defence Forces of the

Country. He has power to declare war and peace. However, the exercise of these
powers by the President is “regulated by law”. The Parliament is empowered to
regulate or control the exercise of the military powers by the President. the
military power of the Presidents is thus subordinate to his executive power
which is exercisable by him on the advice of the Cabinet.

3. Legislative Power:
The President of India is a competent part of the Union Parliament. In theory he
possesses extensive legislative powers. He has power to summon and prorogue
the Parliament and he can dissolve the Lok Sabha. The legislative powers of
President are in accordance with the aid and advice of Council of Ministers. The
Bill shall have to be passed in both the Houses with Majority. The Bill comes
into Law after the President gives his assent. The President shall give the
“Opening Address” of both Houses of Parliament assembled together at the first
session after each general election to the House of the People and also at
commencement of each year. The President has to lay before the Parliament the
Annual Finance Budget, the report of Auditor General, the recommendations of
the Finance Commission, Report of the UPSC etc.

4. Diplomatic Powers:

As the head of the Country, the President sends and receives Ambassadors, and
other diplomatic representatives. All treaties and international agreements are
negotiated and concluded in the name of the President though subject to
ratification by Parliament.

5. Judicial Power:

The President has the power to appoint the Chief justice of Supreme Court and
High Courts and also to appoint other judges of Supreme Court and the High
Courts. Under Article 72 President has power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. The object of conferring
judicial on the President is to correct the judicial errors, for no human system of
judicial administration can be free from imperfections.

In Maru Ram v/s Union of India, it has been held that in exercising the
pardoning power the object and the spirit of section 433- A of Cr.P.C. must be
kept in view. The power to pardon is exercised by the President on the advice of
the Council of Ministers.

In Sher Singh v/s State of Punjab, the Supreme Court in this case held that the
mercy petition must be disposed of within a period of three months from the
date of its receipt. Long delay is also unjustice.

[Link] Power:
Articles 352-360 of the Constitutions empowers the President with enormous
emergency powers. The emergencies envisaged under the Constitution are of
three kinds: (1) emergency arising out of war, external aggression or armed
rebellion, (2) emergency due to failure of Constitutional machinery in the State,
and (3) financial emergency.

OR

What is a Money Bill ? Explain the procedure of passing Money Bills,

Financial Bills and Ordinary Bills.

Introduction:

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

Meaning of a Money Bill:

Article 110 of the Constitution defines the term Money Bill as “ a Bill which
contains only provision regarding taxes, borrowings, custody of the
Consolidated Fund and the Contingency Funds, appropriations, declaring of any
expenditure as charged on the Consolidated Fund, receipt and custody of money
in the Consolidated Fund, audit of the accounts of the union or any other
incidental matter.

Legislative Procedure for Passing a Money Bill:

The introduction and adoption of a money bill has a procedure of its own, that is
distinguishable from the adoption of a Non- money bill and also from a
Financial Bill in some respects. That is special procedure has been prescribed
for the adoption of a Money Bill.

Article 109 lays down the procedure of passing Money Bill

1. A Money Bill shall not be introduced in the Rajya Sabha. It shall be
introduced only in the Lok Sabha. A Money Bill can be introduced in the
Lok Sabha only with the recommendation of the President.
2. After a Money Bill has been passed by the Lok Sabha, it shall be transmitted
to the Rajya Sabha for its recommendations.
The Rajya Sabha shall, within a period of 14 days from the receipt of the
Bill, return the Bill to the Lok Sabha with its recommendations. The Lok
Sabha may, thereupon, either accept or reject all or any of the
recommendations of the Rajya Sabha.
3. If the Lok Sabha accepts any of the recommendations of the Rajya Sabha,
the Money Bill shall be deemed to have been passed by both houses of the
Parliament with the amendments recommended by the Rajya Sabha and
accepted by the LOk Sabha.
4. If the Lok Sabha does not accept any of the recommendations of the Rajya
Sabha, the Money Bill shall be deemed to have been passed by both the
houses in the form in which it was passed by the Lok Sabha without any of
the amendments recommended by the Rajya Sabha.
5. If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha
for its recommendations is not returned by the Rajya Sabha within the said
period of 14 days, it shall be deemed to have been passed by both the
Houses iat the expiration of the said period in the form in which it was
passed by the Lok Sabha.
6. When a Money Bill has been passed by both the Houses of Parliament, it is
presented to the President with a certificate by the speaker of the Lok Sabha
that it is a Money Bill for his assent.
7. When a Money Bill is presented to the President for his assent, the President
may either give his assent or refuse his assent. But, since the Money Bill has
been introduced only on the recommendation of the President, and the
power to vote a Money Bill is exercised by the President only on the advice
of the cabinet, the President will be bound to give his assent to the Money
Bill.
8. After the President gives his assent to the Money Bill, the Bill becomes an
Act.

Legislative Procedure for Passing a Financial Bill :

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

Followings are the legislative procedure for passing Financial Bill:

1. Like a Money Bill, a Financial Bill also can be originate only in the Lok
Sabha.
2. Again, like a Money Bill, a Financial Bill also cannot be introduced
without the recommendation of the President.
3. A Financial Bill can be amended or rejected by the Rajya Sabha like an
Ordinary Bill. If there is a deadlock between the two Houses in regard to
the passing of a Financial Bill, it can be resolved by the joint session of
the two Houses. That means the Rajya Sabha has some control over
Financial Bill and other Bills involving expenditure.
4. A Financial Bill is passed according to the procedure provided for
passing of an Ordinary Bill.
5. As far as the President assent is concerned, in the case of Money Bill, the
President may either give his assent or refuse his assent. But in the case
of a Financial Bill, he may, in addition, refer it back to the House with a
message for reconsideration.
6. After the Financial Bill is passed by both the Houses, and the President
gives his assent, the Financial Bill becomes an Act.

Legislative Procedure for Passing an Ordinary Bill :

According to the procedure of a House a Bill has to pass through three stages
commonly known as readings:

1. First Reading
2. Second Reading
3. Third reading.

The legislative procedure for the introduction and passing of an Ordinary Bill is
as follows :

1. First Stage: introduction of a Bill embodying the provision of the

proposed law or the First Reading of a bill, at this stage no discussion
takes place.
 2. Second Stage : the second stage is the consideration stage when the Bill
is discussed clause by clause. At this stage amendments may be moved.
3. Third Stage : At the third reading stage a brief general discussion of the
Bill takes place and the Bill sis finally passed. When the Bill is passed by
one House it is sent to the other house, where a similar procedure is
repeated. If there is any disagreement between the Houses over any Bill,
the Bill cannot be deemed to have been passed. If the two Houses do not
agree a deadlock is created, to resolve such a deadlock the Constitution
provides the method of joint sitting of the Houses.
4. Last Stage : A Bill duly authenticated by the presiding officer is
presented to the President for his assent. The President may
(a) Assent to the Bill
(b) Withhold his assent or
(c) Return the Bill for reconsideration.

(b) write a note on Fundamental Duties. Marks : 5

Part – IV-A, of the Indian Constitution provides with the provision relating to
Fundamental Duties. Part-IV-A containing only one Article 51-A, has been
inserted by the Constitution ( 42nd Amendment) Act, 1976. The inspiration for
the Part- IV- A is the Constitution of the U.S.S.R. the object of the Fundamental
Duties is to achieve national integrity and respect. Its object is to make every
citizen to realise that he has certain duties toward the Nation.

According to Article 51-A of the Constitution, followings are the Fundamental

Duties of citizens of India, it shall be the duty of every citizen of India, ….

a) To abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem.
b) To cherish and follow the noble ideals which inspired our national
struggle for freedom.
c) To uphold and protect the Sovereignty, Unity and Integrity of India.
d) To defend the country and render the national service when called upon
to do so.
e) To promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious linguistic and regional or
sectional diversities, to renounce practices derogatory to the dignity of
women.
 f) To value and preserve the rich heritage of our composite culture.
g) To protect and improve the nature; environment including forests, lakes,
rivers, and wild life, and to have compassion for living creatures.
h) To develop the scientific temper, humanism and the spirit of inquiry and
reform.
i) To safeguard public property and to adjure violence.
j) To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
achievements.

OR

The President of India dissolved the Lok Sabha but the Prime Minister was
continued in his office. The continuance of the Prime Minister along with
his ministry even after dissolution by Lok Sabha challenged in the Supreme
Court by ‘X’ a citizen of India on the ground that Prime Minister ceases to
be a member of Parliament. Decide.

A challenge of ‘X’ raised before the Supreme Court is not valid because, A
dissolution ends the very life of the House and general election then must be
held to elect a new Lok Sabha. It is to be noted that it is the Lok Sabha which is
subject to dissolution. The Rajya Sabha is a permanent body and not subject to
dissolution. A dissolution ends the very life of the House while a prorogation
ends a session.

The power to dissolve the Lok Sabha is vested in the President under Art. 85
(5). But this respect also he acts on the advise of the Prime Minister. So long as
the Prime Minster and his Cabinet enjoys the confidence of the Lok Sabha the
President is bound to dissolve the House when advised by the Prime Minister.
The President is not bound to dissolve the Lok Sabha on the advise of the Prime
Minister who does not enjoy the confidence of the majority in the House.

From the above it is clear that the dissolution of the Lok Sabha by the President
is not valid because the President at the time of dissolving the Lok Sabha did
not take the advise of Prime Minister and his Council of Minister and moreover
the Prime Minister did not loosed the confidence of the majority in the House,
therefore the Prime Minister and his Ministry continued in their office, So the
validity challenged by the a citizen ‘X’ is not valid and it cannot be
maintainable.
 UNIT- III

Q. No. 3. (a) How Independence of Judiciary is maintained under the

Indian Constitution? Discuss. Marks : 15

Introduction :

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

[Link] of Tenure:

The judge of the Supreme Court have security of tenure. They cannot be
removed from office except by an order of the President and that also only on
the ground of proved misbehaviour or incapacity, supported by a resolution
adopted by a majority of total membership of each House and also by a majority
of not less than 2/3 of the members of the house present and voting. Parliament
may, however, regulate the procedure for presentation of the address and for
investigation and proof of the misbehaviour or incapacity of a judge. But
Parliament cannot misuse this power, because the special procedure for their
removal must be followed.

[Link] of Judge fixed, not subject to vote of Legislature:

The salaries and allowances of the Judges of the Supreme Court are fixed by the
Constitution and charged on the Consolidated Fund of India. They are not
subject to vote of Legislature. During the term of their office, their salaries and
allowances cannot be altered to their disadvantage except in grave financial
emergency.

[Link] can extend, but cannot curtail the jurisdiction and power of
the Supreme Court:

In respect of its jurisdiction, Parliament may change pecuniary limit for appeals
to the Supreme Court in civil cases, enhance the appellate jurisdiction of the
Supreme Court in civil cases, enhance the appellate jurisdiction of the Supreme
Court, confer supplementary power to enable it to work more effectively, confer
power to issue directions. Order or writs including all the prerogative writs for
any purpose other than those mentioned in Article 32.

4 . No discussion in legislature on the conduct of the judges:

Neither in Parliament nor in a State Legislature a discussion can take place

with respect to the conduct of a Judge of the Supreme Court in discharge of his
duties

5. Power to punish for its Contempt:

The Supreme Court and the High Court have the power to punish any
person for its contempt. This power is very essential for maintaining the
impartiality and independence of the judiciary.
6. Separation of judiciary from executive:
Art. 50 directs the State to take steps to separate the judiciary from the
executive in the public services of the State. It emphasises the need of
securing the judiciary from the interference by the executive.
7. Judges of the Supreme Court are appointed by the Executive with
the consultation of Legal Experts:
The Constitution does not leave the appointment of the judges of the
Supreme Court to the unguided discretion of the executive. The executive
is required to consult judges of the Supreme Court and High Courts in the
appointment of the judges of the Supreme Court. The independence of the
Supreme Court is emphasised by Art.229 which provides that
appointment of officers and servants shall be made by the Chief Justice or
such other Judge or officer as may appoint.
8. Prohibition on practice after Retirement:
Art. 124(7) prohibits a retired Judge of the Supreme Court to appear and
plead in any court or before any authority within the territory of India.
Thus the position of the Supreme Court is very strong and its
independence is adequately guaranteed. However, there are certain
disturbing trends which are likely to threaten the independence of
judiciary at present.

OR
Examine the provisions relating to transfer of Judges from one High Court
to another in the light of decided cases. State whether such transfers affect
the independence of judiciary.

Introduction :

The judiciary in states consists of a High Courts and a system of Courts

subordinate to the High Court. Article 214 says that there shall be a High Court
in each State. Every High Court shall consists of a Chief Justice and such other
Judges as the President may, from time to time, deem it necessary to appoint.
Thus the Constitution does not fix any maximum number of judges of a High
Court.

Appointment of Judges:

Article 217 provides that every judge of a High Court shall be appointed by the
President. the President appoints the Chief Justice of India and the Chief Justice
he may consult even the Chief Justice of the High Court concerned.

Transfer of judges from one High Court to another:

Article 222(1) empowers the President after consultation with the Chief Justice
of India to transfer a judge from one High Court to any other High Court.
Clause (2) makes provisions for the grant of compensatory allowance to a judge
who goes on transfer to another high Court.

In S. P. Gupta & others v/s Union of India, popularly known as the judges
transfer case. Article 222 empowers the President of India to transfer judge
from one high court to another. In this case Union law Minister issued a circular
on 18th march 1981, addressed to all the Chief Ministers requesting them to
secure from all Additional judges in the HCs of their respective states prior
consent to be appointed as permanent judges in any other HC for which they
were to indicate three HCs of their choice in order of preference. After issuance
of the above circular, the President of India under Art. 224 accorded short terms
were about to expire.

The Circular of Union Law Minister, and in pursuance of the transfers of judges
by the President created great consideration and agitation in the legal circles.
The petitioner was a practising Advocate of the Supreme court challenged the
order transfers of Judges under Art.32. he also prayed to treat his writ petition as
PIL.
Judgement: The Supreme Court held that the circular letter was valid and it
did not affect the Independence of Judiciary. Further it said that the consent of
the judge transferred is not necessary under art. 222. The only requirement is
“Consultation” with the Chief Justice if India which must be effective.

In a historic judgement, S.C. Advocate-On-Record v/s Union of India, the

Supreme Court overruled the Judges Transfer case and held that in case of
transfer of judges of High Court the opinion of the Chief Justice of India has not
the primacy, but is determinative in the matter. The Chief Justice however
required to consult two senior most judges of the Supreme Court before sending
his recommendation for transfer of a judge from one High Court to another.
Any transfer made on such recommendation of the Chief Justice of India not
deemed to be punitive, and such transfer is not justifiable on any ground.

In Union of India v/s Sankalchand, the constitutionality of a notification

issued by the President by which Justice Sankalchand Sheth of the Gujrat High
Court was transferred to the High Court of Andra Pradesh, was challenged on
the ground that the order was passed without the consent of the Judge and
against public interest and without effective consultation of the Chief Justice of
India. The Supreme Court held that a judge of a High Court could be transferred
under Art.222(1) without consent. The power to transfer a high Court judge is
conferred by the Constitution in public interest and not for the purpose of
providing the executive with a weapon to punish a judge who does not touch its
line or who, for some reason or the other, has fallen from its grace.

Once it is accepted that a High Court Judge can be transferred on the ground of
public interest only, the apprehension that the executive may use the power of
transfer for its own ulterior ends and thereby interfere with the Independence of
the Judiciary loses its force. Also Art. 222(1) casts an absolute obligation on the
President to consult the Chief Justice of India before transferring a judge from
one High Court to another. That is the actual condition precedent to the actual
transfer of the judge.

The consultation with the Chief Justice of India must be effective one. It means
that while consulting the Chief Justice the President must make the relevant data
available to him on the basis of which he can offer to the President, the benefit
of his considered opinion. If the facts necessary to arrive at a proper conclusion
are not mede available to the Chief Justice , he must ask for them because, in
casting on the President the obligation to consult the Chief Justice, the
Constitution at the same time must be taken to have imposed a duty on the
Chief Justice to express his opinion on nothing less than a full consideration of
the matter on which he is entitled to be consulted.

The transfer of High Court Judges from one High Court to another will not
affect the Independence of Judiciary. However, the Supreme Court held that
it affected the independence of the judiciary as it had the coercive effect on the
minds of the judges by implying a threat to them that if they did not give their
consent to be transferred to another Court they would not be continued nor
made permanent.

(b) Is there any need for Judicial Commission ? Discuss.

Marks : 5

In the Indian context the controversy has arisen because the two sides- the
Executive and the Judiciary, both trying to assert themselves in a tug of war for
supremacy in the matter. However, both the sides have shown their failing on
the matter. A Constitutional body reflecting the aspirations of all sections,
should be entrusted with the task of bringing in harmony between the two
conflicting wings of the government. As suggested by the Law commission in
1987, a National Judicial Service Commission should have the final say in
matters of selection, promotion, and transfer relating to the judiciary. As far as
the composition of the Commission is concerned, the Law Commission
suggested that the body should be headed by the chief Justice of India and
include three Judges each of the supreme Court and the High Courts the
previous occupants of the Chief justice, the Attorney General, an outstanding
legal academician and a representative of the Ministry of Kaw and Justice.

A Bill was introduced in Lok Sabha by the National Front Government for
setting up a National Judicial Commission in 1990 by the then Law Minister,
empowering the President to constitute a high level Judicial Commission for
making recommendation for the appointment of a Judge to the Supreme Court,
chief Justice of High Courts and to the transfer of Judges from one High Court
to another. However, the Constitution Amendment Bill lapsed consequent to the
dissolution of the Lok Sabha.

OR
Write a Short note on Public Interest Litigation.

The traditional rule is that the right to move the Supreme Court is only available
to those whose fundamental rights are infringed. The power vested in the
Supreme Court can only be exercised for the enforcement of fundamental rights
sought through appropriate proceedings.

The traditional rule of locus standi that a petition under Article 32 can only be
filed by a person whose fundamental right is infringed has now been
considerably relaxed by the Supreme Court in its recent rulings. The Courts
now permits public interest litigation or social interest litigations at the instance
of ‘public spirited citizens’ for the enforcement of Constitutional and other legal
rights of any person or group of persons who because of their poverty or
socially or economically disadvantaged position are unable to approach the
Court for relief. A Public Interest Litigation is a litigation filed by a third person
for the welfare of others. Now the Supreme Court of India widened the scope of
public interest litigation, even by accepting the post card on any issue, which is
violative of fundamental rights granted under Part-III.

The field of Public Interest Litigation is extended to every walk of human life,
viz. environment, prisons, police, social circumstances, municipal
administration, human rights, legal aid, speedy trial, preventive detention laws,
phone tapping, elections etc. the essential and important object of Public
Interest Litigation is to safeguard the public interest and to protect constitutional
and legal rights of disadvantaged sections.

The reason for enhanced PIL is that where wrong is committed against
community interest, there cannot be any locus standi. Especially in India, the
number of poor and illiterates is very high. Due to poorness and illiteracy the
majority people remain indifference towards their knowledge, if brings such
wrong to the notice of the Supreme Court under Article 32, or to the notice of
High Courts under Article 226, they immediately began to respond. It is in the
interest of “Public Interest”, not intended a single individual. Hence the
principle of Locus Standi does not apply in case of PIL.

UNIT- IV
Q. No.4. (a) Discuss the power of parliament to legislate upon a Subjects
in the State list. Marks : 15

Introduction:

India is a federal country, constituting of strong centre and weak state. The
framers of the constitution of power is necessary b/w centre and states. The
distribution of powers is an essential features of federalism. The object for
which a federal state is formal involves a division of authority b/w the National
Government and the separate states. A federal Constitution establishes the dual
policy with the Union at the centre and the state, each endowed with Sovereign
powers to be exercised is the field assigned to them respectively by the
Constitution. The one is not subordinate to the other in its own field, the
authority of one is Co- Ordinate with that of the other. In this regard there is a
relationship b/w the Union and the state on various aspects they are
[Link] Relations. [Link] Relations and 3. Financial Relations.

Parliament’s power to Legislate on State Subjects:

Though in normal times the distribution of power must be strictly maintained

and neither the state nor the Centre can encroach upon the sphere allotted to the
other by the Constitution , yet in certain exceptional circumstances the above
system of distribution is either suspend or the powers of the Union Parliament
are extended over the subjects mentioned in the State List. The exceptional
circumstances are:

1. Power of parliament to legislate in the national interests:

According to Article 249, if the Rajya Sabha passes a resolution
supported by 2/3 of the members present and voting that it is necessary or
expedient in the national interest that Parliament should make laws with
respect to any matter enumerated within State Law, then it shall be lawful
for the Parliament to make laws for the whole or any part of the territory
of Indian with respect to that matter so long as the resolution remains in
force. Such a resolution normally lasts for a year; it may be renewed as
many times necessary but not exceeding a year at a time. These laws of
Parliament will, however, cease to have effect on the expiration of the
period of six months after resolution has ceased to operate.
2. During a proclamation of Emergency:
According to Article 250 while the Proclamation of Emergency is in
operation shall have power to make laws for the whole or any part of the
 territory of India with respect to all matters in the State List. Such a law,
however, shall cease to have effect on the expiration of six months after
the proclamation of emergency has ceased to operate.
3. Parliament’s power to legislate with the consent of the States:
According to Article 52 if the Legislature of two or more States pass
resolution to the effect that it is desirable to have a law passed by
Parliament on any matters in the State List, it shall be lawful for
Parliament to make laws regulating that matter. Any other Sate may adopt
such a law by passing a resolution to that effect. Such law can only be
amended or repealed by the Act of Parliament.
4. Parliaments power to legislate for giving to treaties and international
agreements:
Article 253 empowers the Parliament to make any law for the whole or
any part of the territory of India for implementing treaties and
international agreements and conventions. In other words, the normal
distribution of powers will not stand in the way of Parliament to pass a
law for giving effect to an international obligation even though such law
relates to any of the subjects in the State list. Art. 253 enables the
Government of India to implement all international obligations and
commitments. Treaties are not required to be ratified by parliament. They
are, however, not self- operative. Parliamentary legislation will be
necessary for implementing the provisions of a treaty. But laws enacted a
law cannot infringe fundamental right.
5. In case of failure of constitutional machinery in a State:
Under Article 256 parliament is empowered to make laws with respect to
all matters in the State List when the Parliament declares that the
Government of the State cannot be carried on in accordance with the
provisions of the constitution

Thus from the scheme of distribution of legislative powers between the

Union and the States it is quite evident that the frames have given more
powers to the Union Parliament as against the States. The States are not
vested with exclusive jurisdiction even over the subjects assigned to the
States by the Constitution and thus it makes the States to some extent
subordinate to the Centre. In addition to the Parliaments power to
legislate directly on the State subjects under the foregoing Articles, the
 Constitution also provides for the Centre’s consent before a Bill passed
by a State Legislature can become a law.

OR

Examine the power of the Parliament to amend the constitution referring

to decided cases.

Introduction:

Amendment to the Constitution is very necessary from time to time to overcome

the difficulties which may encounter in future in the working of the
Constitution. If no provision were made for the amendment of the Constitution,
the people would have recourse to extra constitutional method like revolution to
change the Constitution. A Federal Constitution is generally rigid in character as
the procedure of amendment is unduly complicated. The procedure of
amendment in USA, Australia, Canada and Switzerland is very difficult. Our
Constitution is, not too rigid, not too flexible. Article 368 of our Constitution
empowers the Parliament to amend the Constitution.

Power of the Parliament to Amend the Constitution:

For the purpose of amending the constitution the power has been given to the
Parliament under Article 368. The Constitution amendment is divided into three
categories:

1. Amendment by Simple Majority:

Articles that can be amended by Parliament by simple majority as that
required for passing of any ordinary law. The amendments contemplated
in Articles 5, 169 and 239-A, can be made by simple majority. These
Articles are specially excluded from the purview of the procedure
prescribed in Article 368.
2. Amendment by Special Majority:
Articles of the Constitutional which can be amended by special majority
as laid down in Article 368. All constitutional amendments, other than
those referred to above, come within this category and must be effected
by a majority of the total membership of each House of Parliament as
well as by a majority of not less than 2/3 of the members of that House
present and voting.
 3. By Special Majority and Ratification by States:
Article which require, in addition to the special majority mentioned
above, ratification by not less then ½ of the State Legislatures. The States
are given an important voice in the amendment of these matters. These
are fundamental matters where States have important power under the
Constitution and any unilateral amendment by parliament may vitally
affect the fundamental basis of the system built up by the constitution.
This class of Articles consist of amendments which seek to make any
change in the provisions mentioned in Article 368. The following
provisions require such ratification by the States;
a) Election of the President
b) Extent of the Executive powers of the Union and States.
c) Articles dealing with judiciary, Supreme Court, High Court in the
States and Union territories
d) Distribution of Legislative powers between the Centre and the state
e) Any of the Lists of the VIIth Schedule.
f) Article 368 itself.

Procedure for Amendment:

A Bill to amend the Constitution may be introduced in either House of

Parliament. It must be passed by each House by a majority of the total
membership to that House and by a majority of not less than 2/3 of the members
of that House present and voting. When a Bill is passed by both Houses it shall
be presented to the President for his assent who shall give his assent to Bill and
thereupon the Constitution shall stand amended. But a Bill which seeks to
amend the provisions mentioned in Article 368 requires in addition to the
special majority mentioned above the ratification by the ½ of the States.

Some of the leading decided cases relating to Amendment to the

Constitution:

1. In Shankari Prasad v/s Union of India.

This is the first case-law challenging the validity of amending power of
the Parliament. The Parliament made the first amendment by which it
inserted Article-31-A and 31-B in the constitution. The petitioner filed a
writ petition and challenged the validity of the amendment arguing that
the amendment to the constitution would take away the fundamental right
guaranteed under Part-III.
 Judgement: the Supreme Court did not agree the arguments of the
petitioner and held that the parliament had the power to amend the
Constitution.
2. In Sajjan Singh v/s State of Rajasthan.
The parliament brought the Constitution (17 th amendment) Act, 1964. The
petitioner challenged it. The Supreme Court held that the Parliament had
the power to amend the Constitution.
3. In Golaknath v/s State of Punjab.
The Supreme Court by a majority overruled its earlier decision in
shankari Prasad’s and sajjan singh cases and held that Parliament had no
power from the date of this decision to amend the Part III of the
Constitution so as to take away or abridge the fundamental rights.

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

An Act passed by the State Legislature prescribing a lower sales tax on cotton
goods manufactured within that State than on goods imported from other States
is a valid and its not the violation of freedom of Inter- State trade and
Commerce.

Because, Free movement and exchange of goods throughout the territory of

India was essential for the economic unity of the country which alone could
sustain the progress of the country. Thus the main object of Article 301 was
obviously to breakdown the border barriers between the states and to create one
unit with a view to encouraging the free-flow of stream of trade and commerce
throughout the territory of India.

Article 301 declares that trade, commerce throughout the territory of India shall
be free. The Constitution of India itself lays down restrictions on Article 301.
The restriction are contained in Articles 302-305. This is necessary because the
freedom is not absolute.

With reference to the above problem under Article 3049a) of the Constitution
the State is empowered to impose any tax on goods imported from other state if
similar goods in the State are subject to similar tax so as to discriminate
between goods so imported and goods manufactured or produced in the State.
In State of M.P v/s Bhailal Bhia, a State of aw imposed sales tax on imported
tobacco but locally produced tobacco was not subject to such sales tax. The
court invalidated the tax as discriminatory.

OR

Write a note on Administrative Relations between Centre and State.

The success and strength of the federal policy depends upon the maximum of
co-operation and co-ordination between the governments. In fact, the
adjustment of administrative relations between the Union and the States is one
of the main problems in a federal government. The framers of the Indian
Constitution therefore decided to include detailed provisions to avoid clashes
between the Centre and the States in the administrative domain and to ensure
effective Federal Executive control of matters falling within the jurisdiction of
the Parliament.

In order to ensure smooth and proper functioning to the administrative

machinery, they made provisions for meeting all types of eventualities resulting
through the working of federalism or emergence of new circumstances due to
difference of opinion between the dual authorities. Moreover, the Union
Government was to be responsible for maintaining peace and order in the
country. Therefore, co-operation and co-ordination between the centre and the
State Administrative authorities was thought indispensible. In emergency the
Government of India exercises the complete control over the States and
functions as if it is a unitary government.

Articles 256 to 263 provide for Union control over the Sates even in normal
times through following ways:

(a) Direction by the Union to the State Governments.

(b) Delegation of Union functions to the States.
(c) All – India Services.
(d) Grants –in- aid.

UNIT- V

Q. No. 5. (a) Discuss the National Emergency and the affects of

proclamation of National Emergency. Marks: 15
Introduction:

India is a vast Country. The framers of the Constitution thought, sometimes

foreign forces or internal rebellion would destroy the integrity of the Country.
To safeguard the country, they had given more power to the Union Government
in Part- XVIII(18) from Articles 352 to 360 and these provisions are called “
Emergency Provisions”. The primary object of emergency is to strengthen the
country with adequate powers to face the situation, and to save the country from
tire problems.

The Constitution of India provides for three types of Emergency namely:

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

National Emergency:

Articles 352 to 355 of the Constitution deals with the matter relating to National
Emergency. Art -352 provides that if the President is satisfied that a grave
emergency exists whereby the security of India or any part of India is
threatened, either by war or external aggression or armed rebellion, he may
make a Proclamation of Emergency in respect of the whole of India or any part
of India as may be specified in the Proclamation. The Proclamation of
Emergency made may be varied or revoked by the President by a subsequent
Proclamation.

A Proclamation of Emergency can be made even before the actual Occurrence

of the event mentioned in Art. 352 is not essential. An imminent danger of war
or external aggression or armed rebellion is enough for the proclamation of
emergency. The President shall not issue a Proclamation of unless the decision
of the Union Cabinet (i.e. the Council consisting of the Prime Minister and the
other Ministers of cabinet rank) that such a Proclamation may be declared only
on the concurrence of the cabinet, and not merely on the advice of the Prime
Minister as was done by the Prime Minister and not merely on the advice of the
Prime Minister .

In India the National Emergency was declared three times till now, two times
under the circumstances of “war or External Aggression” and the last one under
the Internal Disturbance. The first National Emergency was from (26-10-1962
to 10-1-1968) when China attacked the Northern border of India. To face it the
President of India declared National Emergency for the first time. The Second
National Emergency was proclaimed on3-12-1971 due to the war between India
and Pakistan and the Third National Emergency was declared on 25-6-1975,
under the cause of “Internal Disturbances” on the advise headed by Smt. Indira
Gandhi, the then Prime Minister of India.

Procedures of declaring National Emergency:

The Proclamation of National Emergency must be laid before each House of

Parliament and it shall cease to be in operation at the expiration of one month
unless before the expiry of one month it has been approved by resolution of
both Houses of Parliament. If the Proclamation of Emergency is issued at a time
when the Lok Sabhs has been dissolved or the dissolution takes place during the
period of one month referred to above, without approving the Proclamation but
the Proclamation has been approved by the Rajya Sabha, the Proclamation shall
cease to be operate at the expiration of one month from the date on which the
Lok Sabha sits after fresh election. A resolution approving the Proclamation
must be passed by the special majority, that is by a majority of the total
members of each House

A Proclamation of Emergency once approved by Parliament shall remain in

force for a period of six months from the date of the passing of the second
resolution approving it. For the further continuance of the emergency beyond
the period of six months approval by Parliament would be required every six
months.

EFFECTS OF PROCLAMATION OF EMERGENCY:

The followings are the consequences or the effects of the Proclamation of

Emergency:

1. Extension of Centre’s Executive Power(Art-353).

During the operation of a Proclamation of emergency the executive
power of the Union shall extends to giving directions to any State as to
the manner in which the executive power of the State is to be exercised.
The Union power shall also be extended to any part of India is threatened
by activities in or in relation to that part of the territory of India in which
the Proclamation of Emergency is in operation.
2. Parliament empowered to legislate on State subjects (Art- 353[b]).
 While the Proclamation of Emergency is in operation, the Union
Parliament is empowered to make laws with respect to any of the matters
in the State List. The distribution of legislative power is thus
fundamentally changed during the Emergency. The law- making power of
the State is not suspended during the emergency. The State can make law
but it is subject to the overriding power of the Union Parliament.
3. Centre empowered to alter distribution of revenue between the
Union and the State(Art-354).
The President may, while a proclamation of emergency is in operation by
the order after the Financial arrangement between the State and the
Union. Every such order is to be laid each House of Parliament and will
come to an end by the end of the financial year in which the Proclamation
of Emergency ceases to operate.
4. Extension of life of Lok Sabha (Art- 83).
While the Proclamation of Emergency is in operation, the President may
extend the normal life of the Lok Sabha by a year each time upto a period
not exceeding beyond six months after Proclamation ceases to operate.
5. Suspension of fundamental rights guaranteed by (Art- 19).
Article 358 provides for suspension of the six freedoms guaranteed to the
citizens by Article- 19 of the Constitution. It says that while a
Proclamation of Emergency is in operation nothing in Art-19 shall restrict
the power of the State to make any law or to take any executive action
abridging or taking away the rights guaranteed by Article 19 of the
Constitution. It means that as soon as the Proclamation of Emergency is
made the freedoms guaranteed by Art.19 are automatically suspended.

Some of the leading Case- laws Relating to National Emergency:

1. Indira Ganghi v/s Raj Naraian:
On 25-6-1975, the President Proclaimed National Emergancy under
the cause of “Internal Disturbance” on the advice headed by
[Link] Gandhi, the then P.M. this was called as “Black Period”
in India after Independence. It created a great controversy in 1975.
As a result by the 44th Amendment Act 1978, the phrase Internal
Disturbance in Article 352 was removed. So that in future no Central
Government can misuse the power under the Proclamation of
Emergency.
2. Bennet coleman and Co. v/s Union of India
 In this case the Supreme Court concluded that the Proclamation
Emergency should not invalidate a law which was valid before the
Proclamation of Emergency.
3. M. M. Pathak v/s Union of India
In this case the Supreme Court opined that the Article 14 and 19
shall not be suspended during emergency, but only their operation
would be suspended during emergency, as soon as the Emergency,
lifted out, Article 14 and 19 come into life, and would strike down
any legislation which have been valid. The declaration of validity
was stayed during the emergency. It did not mean that the settlement
was washed away. As soon as the emergency is lifted, the settlement
would revive.
4. A.D.M. Jabalpur v/s shukla
The Supreme Court by a majority 4:1 opined that no person had any
locus standi during the period of emergency. However, the decision
of the Supreme Court was criticised throughout the country. 44 th
Amendment made in the Constitution thereafter, so that the Article
21 and 22 cannot be kept suspended.

OR
Explain the safeguards guaranteed to Civil Servants under the
Indian Constitution. Are they available to temporary civil
servants also ?

Introduction:

A country without an efficient civil service cannot progress in-spite of the

earnestness of the people at the helm of affairs in the country. Part XIV deals
with the services under the Union and the States. Part-Xiv contains two
chapters. Chapter-1 deals with the service conditions of the Government
Servants. Chapter-II deals with Public Service Commission.

Articles 308 to 313 explains about the Doctrine of Pleasure and Constitutional
safeguards to Civil Servants in India.

Recruitment and Regulation of Constitution of Services:

Article 309 empowers Parliament and the State Legislatures to regulate the
recruitment and the conditions of services of the persons appointed to public
services and posts under the Union and the States, respectively.

Doctrine of Pleasure:

The Doctrine of Pleasure was originated in England. The normal rule in

England. The normal rule in England is that a civil servant if the crown holds
the office during the pleasure of the crown. This means that his services can be
terminated at any by the crown, without assigning any reason. The Doctrine of
Pleasure is based on public policy. Article 310 of the Constitution incorporates
the Doctrine of Pleasure. It expressly provides that all persons who are members
of the Defence or civil services of the union or of AIs hold office during the
pleasure of the President. similarly members of the State services hold office
during the pleasure of Governor.

CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS.

In India, the servant can bring an action against the State under certain
circumstances. Article 311 provides certain safeguards to the civil servants of
the Government

Restrictions on the doctrine of Pleasure:

Article 311 provides the following safeguards to civil servants against any
arbitrary dismissal from their posts:

No person holding a civil post under the Union or the States shall be dismissed
or removed by authority subordinate to that by which he was appointed

No such person shall be “dismissed”, “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.

[Link] REMOVAL BY SUBORDINATE AUTHORITY:

Article 311(1) says that a civil servant cannot be dismissed or removed by any
authority subordinate to the authority by which he was appointed. This does not
mean that the removal or dismissal must be by the same authority who made the
appointment or by his direct superior. It is enough if the removing authority is
of the same or co-ordinate rank as the appointing authority.
In Superintendent of Police, Manipur v/s R. [Link] Singh.:

The State Government enacted incorporating provisions empowering the

Inspector- General of Police to remove the Sub- Inspector of Police on the
grounds of disciplinary with the approval of the State Government. In this case,
the Inspector General of Police removed the petitioner- sub- Inspector of Police
from his post without the approval of the State Government. The Supreme
Court held that the act of removal was bad in law.

[Link] OPPORTUNITY TO DEFEND:

Article 311(2) lays down that a civil servant cannot be dismissed or removed or
reduced in rank unless he has been given a reasonable opportunity to show
cause against the action proposed to be taken against him. Originally, the
opportunity to defend was given to a civil servant at two stages:

(a) At the enquiry stage and this is in accord with the rule of
natural justice that no man should be condemned without
hearing. And
(b) At the punishment stage, when as a result of enquiry the
charges have been proved and any of the three punishment,
i. e. dismissal, removal or reduction in rank were proposed
to be taken against him.

In A.K. Kraipak v/s Union of India , the Supreme Court of India quashed the
selections opining that Selection Committee was influenced by personal
friendship of that candidate, who happened to be a member of the Selection
Committee.

In Divisional Personal Officer, Southern Railway v/s T.R. Challapan:

T.R. Challapan was a railway employee. The Divisional Personal Officer.

Southern Railway dismissed Challapan without giving an opportunity of being
heard. The High Court upheld the Governments decision . he appealed to the
Supreme Court. The Supreme Court quashed the dismissal order, holding that it
was unconstitutional.

Articles 311 Applies To Both Temporary and Permanent Servants:

The Constitutional guarantee of reasonable opportunity is available to both

permanent and temporary servants. In Parshottam Lal Dhingra v/s Union of
India, the Supreme Court held that “Article 310 in terms, makes no distinction
between permanent and temporary members of the services or between persons
holding temporary or permanent post in the matter of their tenure being
dependent upon the pleasure of President or the Governor, so does Article 311
in our view, make no distinction between the two classes, both of which are,
therefore within its protection and the decisions holding the contrary view
cannot be supported as correct”

However, if a Government servant is holding a temporary post, termination

after reasonable notice cannot entitle him to the protection of the safeguards
(provided in Article 311(2) because he has no right to the post held by him.

b)‘A’ was appointed on an official capacity to the higher post. After two
years of services he was reverted to his original post on the ground of
unsatisfactory work. Is it valid?

Marks:5

In this case it is not valid because under Article 311(1) of the Constitution the
protection is given to the Civil Servants. This protection is available only in
case of the dismissal, removal, or reduction in rank is by way of punishment.
This safeguard will be given to them only against any arbitrary dismissal
without any proper ground for the dismissal. Article 311(3) says reduction in
rank means reduction from a higher to a lower rank or post and not merely
loosing place in rank or cadre.

In Parshottam Lal Dingra v/s Union of India

The appellant was appointed to officiate on a higher post. After two years
service the appellant was reverted to his original post on the ground of
unsatisfactory work. It was said that the order of his reversion would not stand
in the way of his being considered again for the promotion if in the future his
work and conduct justified. The Supreme Court of India held that the appellant
had no right to the post as ha was merely officiating in the post and the implied
term of such appointment was that it was terminable at any time on reasonable
notice by the government. The appellant was not reduced in rank by way of
punishment and, therefore, he cannot claim the protection of Art.311(2).

In State of Mysore v/s M.K. Godgoli:

The respondent was a Government servant holding a substantive post of a clerk.
He was promoted Awal Karkun in officiating capacity. But subsequently he was
reverted to his substantive post on the ground of unsatisfactory work. He
challenged the validity of the order on the ground that he was reduced in rank
without giving reasonable opportunity in Article 311(2) of the Constitution. The
Court, however, held that the revision in this case not amounted tos reduction in
rank by way of punishment and hence Art.311(2) was not attracted. The Court
said that a person officiating in a post has no right to hold it all times. Such a
person given a higher officiating post to test his suitability to be made
permanent later and holds it on implied term that he would have to be reverted
if he was found unsuitable.

From the above case it is clear that a challenge made by a person called ‘A’ is
not maintainable because it is valid under Article 311(2) of the Constitution.
The protection given to a civil servant under Article 311(2) is only under the
circumstances of punishment such as removal, dismissal and reduction in rank it
entails or provides the forfeiture of his pay or allowance, or the stoppage or
postponement of his future chances of promotion. In the instant case, the order
of reversion did not in any way affect the appellants future promotion or
seniority in the substantive post.

OR

Write a short note on ‘Government’s liability in Contracts’.

The Government of India may sue or be sued by the name of the Union of India
and the Government of a State may sue or be sued by the name of the State or
of the Legislature of a State. Thus the Constitution makes the Union and the
State as a juristic persons capable for owning and acquiring property, making
contracts, carrying on trade or business, bringing and defending legal action just
as private persons.

Government’s liability in Contracts:

Article 299 authorises the Government of India to enter into contract for any
purpose subject to the mode and manner provided by it. All contracts made in
the exercise of the executive power of the Union or of a State shall be expressed
to be made by the President, or by the Governor of the State as the case may be.
All such contracts and all assurance of property made in the exercise of that
power shall be executed on behalf of the President or the Governor. Its
execution must be by such persons and in such manner as the President or the
Governor may direct and authorise.

The provisions of Article 299(1) are mandatory These provisions have been
incorporated to protect the general public and also the government from
unauthorised contract.
In modern state, whatever be the form of government, the individual is
affected in his everyday life and in the exercise of his civil rights by acts of the
State and its officials in various spheres and in different ways. Some of these
acts are done by the State as the sovereign while others are done by the State in
trading and other capacities in the same manner as a private individual does.
Principles Underlying Contractual Liability of Government:
(1) Reasonableness, fairness : The principle of reasonableness and rationality
which is legally as well as philosophically an essential element of equality or
non-arbitrariness.. Every action of the executive Government must be informed
with reason and should be free from arbitrariness. In the case of Y. Konda
Reddy v. State of A.P it was held that like all its actions, the action even in
the contractual field is bound to be fair. It is settled law that the rights and
obligations arising out of the contract after entering into the same is regulated
by terms and conditions of the contract itself.
(2) Public Interest: Public interest is the paramount consideration. Person
holding public office must exercise his power in public interest and for public
good.
(3) Contractual Liability: Article 299(2) immunises the President, or the
Governor, or the person executing any contract on his behalf, from any personal
liability in respect of any contract executed for the purposes of the Constitution,
or for the purposes of any enactment relating to Government of India in force.
This immunity is purely personal and does not immunise the government, as
such, from a contractual liability arising under a contract which fulfils the
requirements under Article 299(1).The governmental liability is practically the
same as that of a private person, subject, of course, to any contract to the
contrary.
The State cannot, therefore ,act arbitrarily in entering into
relationship, contractual or otherwise with a third party, but its action must
conform to some standard or norm which is rational an non- discriminatory. A
State, when it enters into a contract, must do so fairly without discrimination
and without unfair procedure. Judicial review can be a sufficient tool to decide
the ambit of contractual liability of the States.
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