UNIT - I
1.
What do mean by SLP? Nature and scope of the SLP. Explain the circumstances
when SLP would be maintainable in the Apex Court.
INRODUCTION: - The
Supreme Court of India is authorized to grant in its discretion special leave
appeal from any judgment decree determination sentence or order or in any case
or matter passed any court or tribunal in the territory of India. The only
exception to this power of the Supreme Court is with regard to any judgment
etc. of any court or tribunal constituted by or under any law relating to the
Armed Forces. NATURE & SCOPE OF
SPECIAL LEAVE PETITION:-
1.
Article 136 of the constitution of India
vests very wide powers in the Supreme Court.
The power given under this article is in the nature of a Special
residuary power which is exercisable outside the purview of ordinary law. This
article deals with ordinary appeals to the Supreme Court in the cases where the
needs of justice demand interference by the highest court of the land. This
article has the widest possible terms.
It vests 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 Military Tribunal DISTINCTION BETWEEN ARTICLE 136 AND ART.
132-135:-The power of the Supreme Court under Article 136 is not fettered
with any of the limitations contained in articles 132 to 135 .a) In Jyotendra Singhi v/s S.T.Tripath-1993,
it has been held that party cannot gain advantage by approaching the Supreme
Court directly under Art.136 instead of approaching High Court under art.
226. This is not a limitation inherent
in Art. 136, it is a limitation which the Supreme Court imposes itself. b) How & When an appeal can be
entertained by Supreme Court: - Art. 132
to 135 that an appeal can entertained by the Supreme Court against the
final order but under article 136 the
word order is not qualified by the adjective ‘final’ and hence the court can
grant special leave to appeal even from interlocutory order. c) Under Articles 132 to 134 appeal
lies against the final order of High Court while under Art. 136 the Supreme Court can grant special leave for appeal from
any court or tribunal from any subordinate court below the High Court. The wide
discretionary power with which this Court is vested under it is to be exercised
in granting Special Leave to appeal in exceptional cases only. In case of D.C.M. v/s Commissioner of Income tax-1955,
court held that it being an
Exceptional and overriding power it has to be
exercised sparingly and with caution and only in Special extraordinary
situations. Beyond that it is not possible to fetter the exercise of this power
by and set formula or rule.
d)
Normally the Supreme Court does not interfere
with concurrent findings of the trail court and the High Court unless there is
sufficient to do so as held in a case of Sultan
Ahmad v/s State of Bihar-1975, Supreme Court had to enter into the merit of
the case in order to prevent grave and substantial injustice to the appellant
who was evicted as a result of the wrong interpretation of the law.
e) In an appeal under article 136 the Supreme Court
does not allow the appellant to raise new plea for the first time as held in a
case of Mani subha rao v/s
Ganeshapa-1978.
IN
CRIMINAL CASES: - The power of the
Supreme Court under article 136 has
more frequently been invoked in criminal appeals. As held in a case of Haripada Dey v/s State of West
Bengal-1956, that it will grant special leave only if there has been gross
miscarriage of justice or departure from legal procedure.
In
Judicial Service Assn. v/s State of Gujrat-1991,
the Supreme Court held that under article 136 the Supreme Court has wide power
to interfere and correct the judgment and orders passed by any court or
tribunal in the country.
In
a judgment Union Carbide Corpn. V/s Union of India-1991:
the court held that under article 136 the court has inherent power to withdraw
or transfer or original suit pending in the District Court of Bhopal and
dispose of the same and also criminal proceedings in the course of hearing of
appeals.
M.R.Dhawan
v/s Pratap Bhanu-1978, the appellant was
tried by the trial Magistrate and was discharged on the ground that no prima
facie case was established against him. The session Judge affirmed the order of
the Magistrate. The Supreme Court held that he would not normally interfere
with the discretion exercised by the High Court. Private
party can file appeal under Art. 136 challenging acquittal:- It is a land
mark judgement in Ramakant Rai v/s Madan
Rai-2004, S.Court held that where an accused is acquitted by the High Court
and no appeal against the acquittal is filed by the State, a private can file
appeal under art. 136. At the end it is concluded here that
where the High Court committed serious errors of law in appreciating the
evidence and based its decisions on conjectures then the interference of
Supreme Court is justified to reverse the
Acquittal
by the High Court and convicting the accused and sentencing them to life
imprisonment.
2.
WHAT
ARE THE CONSTITUTIONAL REMEDIES PROVIDED UNDER THE CONSTITUTION FOR THE
ENFORCEMENT OF FUNDAMENTAL RIGHTS? COMPARE IN THIS REGARD THE JURISDICTION OF
HIGH COURT UNDER ART. 226 WITH THAT OF SUPREME COURT UNDER ART. 32.
INTRODUCTION:-
In the language of Law the writs as extraordinary remedies which are issued
upon cause shown in case where the ordinary legal remedies are inapplicable or
inadequate. According to Justice Hidayat Ullah, “The word, ‘writ’ has been used
in the same sense of a written document under the seal of the court issued to a
person or authority.”
KINDS OF WRITS:
- There are two types of Writs:-
i)
The
prerogative Writs:- The prerogative
writs are ancient remedial process of an extraordinary nature which have from
the earliest time issued from the court Bench in which the sovereign was always
present in compensation of Law. The jurisdiction to issue such writs was later on
extended to the High Court of Justice & Supreme Court of Judicature Act
1925.
ii)
Original
or Judicial writs:- The original or
judicial writs commence between party to party and they issue as of course.
WRITS
- WHEN REQUIRED TO BE ISSUED:- Under article 32
and 226, the constitution of Indian confers upon the Supreme Court and the High
Court respectively the power to issue direction orders or writs including writs
in the nature of Hebeas Corpus, Mandamus, Prohibition,Quo-warranto and
Certiorari for the Fundamental Rights and in the High Court for any other
purpose. Refer case of Fertilizer Corporation Kamgar Union v/s Fertilizer
Corporation -1981:
1. HABEAS
CORPUS:- The literal meaning of Harbeas Corpus is, you may have the body.
The writ of Habeas copus is a writ for securing the liberty of person where
such liberty is wrongly taken away. It is an effective means of immediate
release from unlawful detention whether in prison or in private custody. The writ consists in a command from the Court
of the production of the person detained or imprisoned and through this writ
the Court makes an inquiry into the cause of imprisonment.
WHO
CAN APPLY:- An application for Habeas Corpus can
be made by either the prisoner himself or by any other person on his behalf.
The Supreme Court in Sunil Batra v/s Delhi Administration-1980: It was held that the technicalities and the
legal necessaities are no impediment the court entertaining even an informal
communication as a proceeding for “Habeas Corpus”.
WHEN CAN THE WRITARE ISSUE:-1. The
applicant or the person for whom the application is made must be in the
custody. 2. The application of Habeas Corpus ordinarily should be by the
husband or wife or son of detenu. 3. All the formalities relating to arrest and
detention was based on mala-fides e.g. long delay in communication of the
grounds of arrest. 4. The order of arrest must be defective in substance. 5.
Vague and indefinite grounds of detention can also be one of the good grounds
for getting a writ of Habeas Corpus issued. 6. Order of detention is tainted
with irregularity.
WHEN
THE WRIT OF HABEAS CORPUS CANNOT ISSUED
If
the application is made to High Court and place where the person is detained is
outside the jurisdictional limits of that High court.
I)
When during the
pendency of writ petition the person in question is released.
II)
When detention is in
execution of any sentence on indictment of a criminal charge.
III) When
a person is detained under a preventive detention law.
2. WRIT OF MANDAMUS:- Writ
of Mandamus means, “ The writ of mandamus is a high prerogative writ of a most
extensive remedial nature and is in the form of a command issuing from the High
Court of Justice, directed to any person, corporation or inferior court
requiring him or them to do some particular things therein specified which
appertains to his or their office and is in the nature of a public duty.”
IN WRIT OF MANDAMUS
THERE MAY BE COMMAND
The writ of mandamus to do a particular thing or to
abstain from doing a particular thing i.e. the command may be either positive
or negative. It lies in respect of rights and duties of a purely moral
character. Where there is no duty but only a power to do a thing mandamus will
not lie to enforce the exercise of the power unless the power is coupled with a
duty to exercise it.
WHEN
THE WRIT IS GRANTED:- The writ of mandamus is granted to a person
whose rights have been infringed, in the following situations:-
1. The
petitioner has a legal right.
2. That
legal right has been infringed.
3. That
the reason of infringement was the non performance of the corresponding duty by
the public authority.
4. The
petitioner has demanded the performance of that legal duty by that public
authority and the authority has refused to act.
5. The
duty sought to be enforced must be of a public nature, i.e. created by some
statute and not of a private nature.
WHEN
WRIT OF MANDAMUS CANNOT BE LIED:- The writ of
mandamus does not lie in the following circumstances:-
1.When
the duty is to do ministerial work. 2 When the duty is merely discretionary.
3.To enforce contractual obligation. A Pb.Engg.College v/s Sanjay Gulati-1983.
3.
WRIT OF PROHIBITION:- A writ of Prohibition
is a judicial writ issued by a court of Superior jurisdiction directing an
inferior court for the purpose of preventing the inferior court from usuriping
a jurisdjiction with which it is not legally vested or to compel courts
entrusted with judicial duties to keep within the limits of their
jurisdiction. Thus the writ of
prohibition lies only against judicial and quasi-judicial and quasi-judicial
authorities. Refer a case of A.G.Gubert v/s Registrar High Court Allahabad-1959
in this regard.
WHEN
THE WRIT CAN BE ISSUED:- The writ of Prohibition
can only be issued when the following situations arise:-
a. When
both excess of jurisdiction and absence of jurisdiction, violation of natural
justice, fraud, contravention of the laws of the land.
b. Writ
of Prohibition can be issued to a judicial or quasi-judicial body which is
inferior to the issuing court.
Here
it is pertinent to mention here that the existence of an alternative remedy is
no bar to the issue of prohibition.
3. A WRIT OF CERTIORARI:- It
is a command or order by the superior court to an inferior court or tribunal to
transmit a record or cause or matter pending before them to the superior court
not to proceed with the case which is not within its jurisdiction and also to
quash any order made by the court in such a case. If the order of inferior
court is found to be without jurisdiction or against the principles of natural
justice, it will be quashed as held in the case of Champalal v/s The
commissioner of Income Tax-1970.
WHO MAY APPLY:- Any
person whose legal right has been violated can apply for the issue of this
writ. Any person may on behalf of a
group of persons or society or persons at a large may apply.
GROUNDS ON WHICH WRIT
IS ISSUED:-When the following circumstances or arise the
writ of Certiorari can be granted:-
1. The
act, order or judgment in respect of which the writ is sought to be issued
should be the act, order or judgment of an inferior court or statutory body
exercising judicial or quasi-judicial functions.
2. Such
courts or body must have acted in absence or in excess of the jurisdiction
vested in it the principles of natural justice so as to render such act order
or judgment invalid.
3. Where
there is violation of the principles of natural justice so as to render such
act order or judgment invalid.
4. When
there is an error apparent on the face of record.
As it has been held in
the case of Gujrat Steel Tubes v/s Its
Mazdoor Sabha -1980. As held by the court that every order cannot be
corrected merely because it is wrong. It
can be quashed if it is vitiated by the fundamental flow of gross miscarriage
of justice.
The
grounds mentioned above are sufficient to quash the orders are self
explanatory.
5. WRIT OF QUO-WARRANTO:- A
writ of Quo-Warranto is issues by the court seeks from the person to whom it is
issued information as to the warrant or authority by which the said person
supports his right to an office franchise or liberty.
It lies against a
person who claims or usurps an office franchise or liberty with respect to
which information is sought so that such person’s right to the same may be
determined in the light of the authority or warranto cited by such person in
support thereof. In case of D.C.Jain v/s
University of Jodhpur-1977:
WHEN
THE WRIT OF QUO-WARRANTO IS ISSUED:- The
writ of quo-warranto can be issued when there is:-
1. When
an illegal usurpation of public office by an unauthorized person.
2.
When the public office
and not a private office is of a substantive nature.
3. The
person proceed against has been in actual possession and is the user of
particular office in question.
COMPARISION
OF THE JURISDICTION OF THE H. C. & SUPREME COURT
I) The
right guaranteed by article 32 can be exercised for the enforcement of
fundamental rights. It can be invoked only for the enforcement of fundamental
rights and no for other purpose.
II) The
power of High Court to issue writs cannot be in derogation of Supreme Court
under Art. 226. An order under art.32 will supersede the orders of the High
Court previously passed.
III) An
application under Art. 32 may always be made first to the Supreme Court since
art. 32 is itself a fundamental right. There is no need to resort to Art. 226
before approaching the Supreme Court under Art. 32.
IV) Under
art. 226 the jurisdiction of the High court to issue writ is limited to its
territorial jurisdiction i.e. within state whereas Supreme Court can issue the
writs against any authority throughout the territory of India.
3. Procedure of removal
of Judges of the Supreme Court with the help of decided cases.
PROCEDURE
OF REMOVAL OF JUDGES:- A judge may be removed
from his office by an order of the President only on grounds of proved
misbehavior or incapacity. The order of the President can only be passed after
it has been addressed to both Houses of Parliament in the same session. The
address must be supported by a majority of total membership of that House and
also by a majority of not less than two thirds of the members of that House
present and voting under article 124
clause 4 of the constitution of India.
The procedure of the presentation of an address for investigation and
proof for misbehavior or incapacity of a Judge will be determined by Parliament
by law on the basis of provisions laid down in article 124(5) of the constitution. The security of tenure of the
Supreme Court Judge has been ensured by this provision of the Constitution.
A very important judgement in the case of K. Veeraswami
v/s Union Of India-1991, It was held that a Judge of the Supreme Court and
High court can be prosecuted and convicted for criminal misconduct.
IMPEACHMENT
OF JUSTICE V. RAMASWAMI:- Mr. V.Ramaswami was
a sitting Judge of Supreme Court of India. He was appointed as a Judge of
Madras High Court during 1987. He was transferred to Punjab & Haryana High
Court as Chief Justice. He was charged with having exceeded limits on telephone
expenses and misuse of official cars.
Motion sponsored by 108 MP’s of Ninth Lok Sabha for his impeachment.
The committee was constituted for
enquiry and Mr. Ramaswami challenged the findings of Enquiry committee. The
Supreme Court held that he has no right to challenge the findings of the
Inquiry Committee. The impeachment
however was defeated in the Lok Sabha as it failed to get support of the
two-third of the members present and voting.
Essentially to keep judiciary independent of the
executive. The requirement of two-third
majority in Parliament could not have been conceived to provide safeguard to a
Judge whose conduct was under a cloud. The biggest victim of his conduct has
been the Judiciary.
FORCED
RESIGNATION – NOT PROVIDED IN THE CONSTITUTION: AFFECTS THE INDEPENDENCE OF THE
JUDICIARY.
In a Landmark judgment in C.Ravi Chandra Iyer v/s Justice A.M.Bhattacharya -1995, The Supreme
Court held that only the Chief Justice of India considered to be the first
among judges who can take action against an High Court Judge or Chief Justice
who has been observed bad conduct. The
division bench of judges gave a legal sanction to an inhouse procedure by
judiciary only to be adopted by the Chief justice of India for taking action
against a High Court Judge of chief.
The
court under article 217 (1) provided the procedure for removal of a Judge from
his office has been laid down no other procedure can be adopted. The supreme
court held that the resolution passed by Bar Council and Bar Association
against the Chief Justice of Bombay, alleging bad conduct and pressurize or
coercing him to resign.
Highlighting
the importance of judicial activism of
the Apex court and High court Sh. K.
Ramaswamy Justice observed that, The judge cannot retain his passive role
when he administers the law under the constitution to give effect to the
constitutional ideals.
The Judge must act
independently if he is to perform the function as expected of him and he must
feel sure that such action of his will not lead to his downfall.
4. Discuss the law
relating to transfer of judges from one High Court to another. Can such orders
of transfer be judicially reviewed?
INTRODUCTION:
- Provisions made in article 124 of the constitution of India that the President of
India is required to consult legal experts regarding transfer of Judge from one
High Court to another. The President however has a right to differ from them and
take a contrary view. Consultation does not mean concurrence and the President
is not bound by it.
Definition
of Article 222:-The President may after
consultation with the Chief Justice of India transfer a judge from one High
Court to any other High Court.
When a Judge has been transferred he shall during
the period he serves after the commencement of the constitution Act-1963 as a Judge of the other High Court be
entitled to receive compensatory allowance in addition to his salary. Such
compensatory allowance as may be determined by Parliament by law or President
my fix.
1.
In
S.P. Gupta v/s Union of India-1982, a
popular case regarding transfers of Judges. The Supreme Court agreed with the
meaning of the term consultation as explained by the majority in Sankalchand
Sheth’s case-1977. However the only ground on which the decision of
the government can be challenged is that it is based on mala fide and
irrelevant considerations.
It means that the ultimate power to transfer or
appoint judges is vested in the Executive from whose dominance and
subordination was sought to be protected. The Supreme Court had used its power
by ruling that constitution functionaries had merely a consultative role and
that power of transfer and appointment of judges is solely and exclusively
vested in the Central Government.
It
is submitted that the majority judgment
of Supreme Court in the judge’s transfer was bound to have an adverse affect on
the independence and impartiality of the Judiciary. Bhagwati, J., has therefore
in his judgment suggested for the appointment of a Judicial Committee for
recommendations in this regard.
In historic judgment in S.C. Advocate-on –Record Association v/s Union of India-1993,
popularly known as Judges Transfer case a nine judge bench of the Supreme Court
by a 7/2 majority overruled its
earlier judgment in the above case and held that in the matter of appointment
of the Judges of the Supreme Court and the High Court’s the Chief Justice of
India should have primacy.
The matter was brought before the court through PIL writ petition filed
by an advocate of the Supreme Court seeking relief of filling up vacancies in
the higher judiciary. The court laid down detailed guidelines governing
appointment and transfer of Judges and held that the greatest significance
should be attached to the view of the Chief Justice.
That
no appointment or transfer of any judge of the Supreme Court or a High Court
can be made unless it is conformity with the opinion of the Chief Justice of
India. Only in exceptional cases and for
strong reasons the names recommended by the Chief Justice may not be considered
for transfer.
Can such orders of transfer be judiciary
reviewed:- Sole opinion of Chief Justice without following consultation
process, not binding on government it can be reviewed judiciary. In re Presidential Reference-1999, a nine
judge’s bench of Supreme Court has held that the recommendations made by the
Chief Justice on the transfer of judges of High Courts without following the
consultation process are not binding on Government. The court gave its opinion
on the nine questions raised by the President under Art.143, showing controversy over the recommendations by CJI. The
court held that the sole individual opinion of CJ does not constitute
consultation of within the meaning of article. Chief Justice should consult collegiums of four senior most judges
of the S.C.; he should not send the recommendation to the govt. The collegiums must include the successor
Chief Justice. Collegiums will send his recommendations in writing to the
Govt., for further action.
5.
Explain in detail the Powers of High Court.
INTRODUCTION:
- Under article 227 every High Court has
the following powers in their jurisdiction. Article 225(a) gives jurisdiction
to High Court (b) the law administered in the existing High Court. (c) The
powers of the Judges in relation to the administration of justice in the court,
(d) the power to make rule of the High Court shall be the same as immediately
before the commencement of this constitution. The powers of the High Courts can be changed both by the Union Parliament and the State
Legislatures.
POWER
OF HIGH COURTS:- There are following
powers of the High Court:-
1. Power of
superintendence over all courts: - Art. 227 of the constitution provide
the power of superintendence conferred on High Court by this article is a very
wide power. The High Court has the power of superintendence over all courts and
tribunals through- out the territory in relation to exercises his jurisdiction
powers. For this purpose High Court may call returns from, to make & issue
general rules and prescribed forms for regulating the work and Accounts, to
setup the fees to be given to the sheriff, clerks, attorneys, advocates and
pleaders. However this power does not extend over any Court or Tribunal constituted
by law relating to the Armed Forces.
2.
Power
under article 226: This power is wider
than the power conferred on the High Court to control the inferior courts through
writs under article 226. It is not confined only to administrative
superintendence but also judicial superintendence over all subordinate courts
within its jurisdiction as held in case of Waryam
Singh v/s Amar Nath-1954.
3.
To
keep the inferior courts within their limits:- The
power of superintendence conferred on the High court by article 227 being extraordinary to be exercised most sparingly and
only in appropriate cases in order to keep subordinate courts within the bounds
of their authority and not for correcting mere error of facts however erroneous
those may be as held in a case of Waryam
singh v/s Amarnath-1954.
4. Transfer of certain
cases to High Courts:-Under article 228 the
High Court has power o withdraw a case from a subordinate court, if it is
satisfied that a case pending in a subordinate court involves a substantial
question of law as to the interpretation of the Constitution. It may then
either dispose of the case itself or may determine the said question of law and
return the case to subordinate court with a copy of its judgment. The
subordinate court will then decide the case in conformity with the High Court’s
judgment.
5.
To
take disciplinary action: - Art. 235, the High Court has disciplinary jurisdiction over
subordinate court. It has been held that the Government had no jurisdiction to
take disciplinary action against a District Judge. It is the High Court alone which is competent
to exercise his disciplinary power against a judge of the inferior court as
held in a case of State of Haryana v/s
Inder Parkash-1976 and State of West
Bengal v/s Nripendra nath Banerjee-1966. It was held & the High Court
quashed an order of the government for compulsory retiring a senior subordinate
judge. It was also held that the transfer of the District Judge was also beyond
the power of the Governor and had to be made by High Court the power vested in
it by article 235 as held in a case
of State of Assam v/s Ranga
Mohammed-1967.
6. CPC amendment does not
affect High Court’s Power:- In a case of Surya Dev Rai v/s Ram Chandra Rai-1976, it
was held that what was the impact of amendment in section 115 of CPC brought
about on the power and jurisdiction of the High court. The Supreme Court as
held that the amendment in sec.115 of the CPC does not affect the jurisdiction
and the powers of the High Court under article 226 and 227. The judgments
passed by the subordinate courts are open to challenge and continue to be
subject to certiorari and supervisory jurisdiction of High Court.
7. Power to issue orders
of writ
:- Article 226 provides that
notwithstanding anything in Article 32
every High Court shall have the power throughout the territorial limits in
relation to which it exercises jurisdiction to issue to any person or authority
including the appropriate cases any government within those territories
directions orders of writ in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari or any of them
for the enforcement of fundamental rights but also other legal rights as is
clear from the words any other purpose. In a landmark judgment in L. Chandra Kumar v/s Union of India-1997,
court held that the power of judiciary over legislative action vested in the
High Court’s under article 226.
8. Interim Relief: -
In 44th. amendment Act-1978,
article 226 and added a new clause
(3) for regulating the procedure regarding the power of the High Court to issue
interim orders which are passed against a party without:
i)
Furnishing
him the copies of such petition.
ii)
Without
giving him an opportunity of being heard.
However
if any party makes an application to the High Court for the vacation of such
order the High Court shall be bound to dispose of such an application within
two weeks. It the High Court fails to dispose of the application within the
period of two weeks the interim order shall on the expiry of the said period
stand automatically vacated. The power
to issue interlocutory order under art.226 should be used with circumspection.
6.
Write a critical note on the Power of Supreme Court to punish for its contempt.
Can S. Court punish for contempt of courts subordinate to it?
INTRODUCTION:- Critical Note on the Power of
Supreme Court to Punish for its Contempt:-Supreme
Court shall have all the powers of such a court including the power to punish
for contempt of itself under article 129
of the constitution.
1.
COURT
OF RECORD: A court of record is a court whose records are
admitted to be of evidentiary value and they are not to be questioned when they
are produced before the court. Once a court is made a Court of Record, its
power to punish for contempt necessarily follows from that position. Contempt
of Courts Act-1971 defines the powers of courts for punishing contempt of courts
and regulates their procedure as in the, civil
contempt: means willful disobedience to any judgment, decree, direction,
order, writ or other process of a court. Criminal
contempt:-Publication written, spoken or by words or by visible
representation of any matter or doing of any act of scandalizes, prejudices or
interferes or to interfere or to obstruct administration of justice. Case Mohd.Aslam v/s Union of India- 1994.
In
Delhi Judicial Service Assn. v/s State of Gujrat-1991: It
has been held that under Art. 129 the Supreme Court has power to punish a
person for the contempt of itself as well as of its subordinate courts.
2.
Ayodhya Case C.M of U.P. punished for Contempt: - In a case of Mohd.Aslam v/s
Union of India-1994, the Supreme Court held
that the C.M. of Uttar Pradesh Mr. Kalyan Singh was guilty of Contempt of Court
for violating the order of the court not to allow a permanent structure on the
disputed land. The court awarded a token sentence of one day and a fine of
Rs.2000/-.
3. Manipur
Assembly Speaker Borobabu’s case:-The Supreme Court directed the Union
government to produce before the court Manipur speaker sh. Borobabu who had
committed contempt of court by violating the order. The Judge said that it is
our constitutional duty which required us to make this order to uphold the
Majesty of law and justify the confidence of the people that no one in this
country is above than law. The contempt proceedings were dropped against him
when he appeared before the court and tendered an unconditional apology.
4. In an important Judgment in the case of Hindustan Times-1994: The Supreme Court
held that neither the Supreme Court nor the High Court has power to direct
dispossession of any one in a contempt. Under article 215 court punish for
contempt of court includes all necessary and incidental powers to effectuate
that jurisdiction.
5. The court cannot invest itself with the
disciplinary jurisdiction of the Bar Council of India and State Bar Council to
punish an advocate for contempt of the Court. This power is vested in the
Disciplinary Committee of the Bar Council under the Advocate’s Act. A complaint
of professional misconduct is required to be tried by the Disciplinary
Committee of Bar Council.
Can Supreme Court punish for contempt of
courts subordinate:- In re Vinay Chandra mishra -1995, Supreme Court has
examined the scope and extent of the power of contempt in detail and held that
under article 129, 215 and 142 of the constitution it has power suo motu to
take cognizance of contempt proceedings against the contemnor. The Supreme
Court not only with the power to punish for contempt of itself but also of
lower courts and tribunals in its capacity as the highest court of record and
also charged both the appellate and superintending power over lower courts and
tribunals as detailed in the constitution.
Similarly a Senior IPS Officer Mr. M.S.Ahlawat was
sentenced to one year’s rigorous imprisonment and punishment for criminal
contempt for fabrication and forgery of document in connection with a case of
wrongful confinement of two minor boys.
Similarly in another case a senior IAS officer of
Karnataka, Mr. Vasudevan was sent to jail for contempt of court.
It is ethically submitted that the object for
vesting such a power in the Court was to uphold the majesty of law, the rule of
law which is the foundation of democratic society. The judiciary is the
guardian of the rule of law. Judiciary has special function to perform and to
see that all individuals and institutions including the executive, legislative
act within the framework of not only law but also the fundamental law of the
land.
CONCLUSION:-
In a number of cases the Supreme Court
has exercised its power of contempt to punish erring bureaucrats who were
either found guilty of disobeying certain Court’s orders for enforcing
fundamental rights of citizens or were charged with corruption. In 1995 or the first time since independence
a senior IAs officer was convicted for contempt of courts and sentenced to
imprisonment by the highest Court. The
Senior IAS officer of Manipur who was found guilty under the Prevention of
Corruption Act-1947, for awarding a contract on exorbitant rates to a person
who was blacklisted by him (refer a Hindustan Times of Oct.15, l995).
UNIT-II
7.
Discuss the relationship between President of India and his Council of Minister
in India. Does President of India have any discretionary powers? Ans:- Relationship between president council
of ministers:- There shall be a President of India, the executive
powers of the Union shall be vested in the President and shall be exercised by
him either directly or through officers subordinate to him in accordance with
the Constitution of India. Without prejudice to the generality of the
provisions laid down in the Constitution the supreme command of the Defence
Forces of the Union shall be vested in the President and to exercise of these
powers shall be regulated by law.
However the President of India shall prevent the
Parliament from conferring by law functions on authorities other than the
President, and be deemed to transfer to the President any functions conferred
by any existing law on the government of any State or other authority.
The
Council of Ministers:- Article 74 of the
Constitution of India provides that, “There
shall be a Council of Ministers with the Prime Minister as its head to aid and
advice the President in the exercise of his functions.” The Prime Minister
shall be appointed by the President and other ministers shall be appointed by
President on the advice of the Prime Minister. The total strength of the ministers
shall not exceed 15 per cent of the total number of members of the House of
People.
1. Before
a Minister enters his office the President shall administer to him the oath of
office and secrecy as provided under article 75(4) of the constitution. The Minister
shall hold office during the pleasure of the Parliament.
2. The
President to appoint a Council of Ministers and he must exercise his functions
with the aid and advice of the Ministers.
3. The
relation between the President and the Council of Minister is confidential because article 74(2) of the
constitution provides that the nature of advice tendered by Ministers shall not
be enquired into by the courts.
4. The
Council of Ministers consists of three categories of Ministers, i) Minister of Cabinet rank ii) Minister of
state iii) Deputy Minister.
5. The
Cabinet is the smaller body of Council of Ministers. The council of ministers
shall be collectively responsible to the House of the People.
6. That
in case of a 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.
Does President of India
have any discretionary powers?
Yes
the President of India may use his
discretionary powers when:-
1. In case of multiple party systems as it prevails
in India, if none is in a position to gain required majority and a coalition
government is to be formed, the President can exercise a little discretion and
select the leader of any party who in his opinion can form a stable ministry.
However it has been suggested that in such situation the President must keep
the certain conventions before finalizing his action in this regard.
2. Mr. Charan
Singh: The President invited the leader of opposition Mr.Y. B. Chavan who
had moved the no confidence motion to form the Govt. After four day of hectic
activities Mr. Chavan informed the President that he was not able to form the
government and up-to now the action of the President was not subject to any
criticism. Thereafter the President adopted an unusual course and asked Mr.
Charan Singh the leader of alliance and Mr. Desai the leader of largest single
party to submit the list of supporters, Mr.Singh showed a list of 262 whereas
Mr.Desai list contained only 236 members. It was clear that Mr. Singh did not
have an absolute majority in the House which should be of 270. On the ground
that Mr. Singh had the supporter of larger member of members than that of
Mr.Desai, The President invited him to form an alternative government but since
the President knew that Mr. Singh had no absolute majority he asked him to seek
a vote of confidence in the House within three weeks time.
3) In Setal
Parsad Sexena v/s Union of India-1985, it was held that the continuance of
Shri Charan Singh as a caretaker Prime Minister ever after he had failed to
seek a mandate of the Lok Sabha three weeks after assuming the office of the
Prime Minister as directed by the President. The Janata Party was still the
largest single party in the House consisting of 205 members.
4) The President did not follow the convention of
calling the leader of the opposition. The President had said that he did not
want to encourage defections by calling upon Mr.Jagjivan Ram as a leader of the
party of 205 members. This appears to be fantastic because he made a great
defector Mr.Charan Singh as Prime Minister.
5) Thus it is clear that though in the above
circumstances the President can exercise his discretion in appointing the Prime
Minister but it will certainly be better to lay down certain conventions in
this matter so as to avoid the situation created by the unconstitutional action
of the President.
8.
What are the parliamentary Privileges? What privileges given to the legislative
chambers, their committees and members in India.
PARLIAMENTARY
PRIVILEGES:-The constitutional provisions
regarding privileges of the State Legislature and Parliament are identical.
While the article 105 deals with the
privileges of Parliament whereas Act 194
deals with the privileges of State Legislature. There are two privileges:-
1.Freedom
of Speech :- That there shall be freedom of
speech in parliament and that no member of parliament shall be liable to any
proceedings in any court in respect of anything said or any vote given by him
in Parliament or any committee thereof under the article 105 of the constitution.
This act gives absolute immunity from courts for anything said within
the four walls of the House and if a member repeats or publishes a defamatory
speech made by him within the House, he does so, on his own responsibility and
risk and held for prosecution under
Sec.500 IPC.
Art.121 prohibits any
discussion in Parliament with respect to the conduct of a Judge of the Supreme
Court or a High Court in discharge of his duties. Under rule 349 to 356 of Lok
Sabha use of unparliamentarily language or unparliamentarily conduct of a
member is prohibited
2.
Right of Publication of its Proceedings:
- That no Member of Parliament shall be liable to any proceeding in any court
in respect of anything said or any vote given by him in Parliament or any
committee thereof and no person shall be liable in respect of publication by or
under the authority of either on the basis of provisions laid down in article 105(2). In a case of Surendra v/s Nebakrishna-1958, who was
an editor of a newspaper, was held guilty of committing contempt of court for
publishing a statement of the House. It was held that there were many
advantages to the public which has the deepest interest in knowing what passes
in Parliament.
The object of the protection is to enable the members to speak their
mind in Parliament freely and fearlessly. The court held that the MP’s who had
taken bribe and voted in Parliament against no confidence motion brought
against the Narsimba Rao government are entitled to the protection of Art.
105(2). The Parliamentary Proceedings Act-1956 was passed which provides that
no person shall be liable to any proceeding civil or criminal in any court in
respect of the publication of the report of the proceedings of either House of
Parliament unless it is proved that publication of such proceeding expressly
ordered to be expunged by the speaker.
OTHER
PRIVILEGES:- On
the basis of provisions laid down in article 105(3) of the constitution of India
that the privileges of the House of Parliament and its members were to be those
which were enjoyed by the members of the House of Commons in England on
26.01.l950. This article stands amended
during 1978 in its 44th Amendment Act. This amendment retained all
the existing privileges which were enjoyed by the members of Legislative in
India. This means that the privileges of each House of Parliament and State
Legislatures will now be same as existed immediately before coming into force
of the 44th. Amendment. New
Privileges however can be defined by law and made by Parliament are as under:- i)Freedom from Arrest:- A member of the
Parliament cannot be arrested or imprisoned on a civil proceeding within a
period of 40 days before and 40days after the session of the Parliament. This
privilege is available against civil arrest and does not extend to arrest or
imprisonment on a criminal charge for contempt of court or to preventive
detention. Case of Smt. Indira Gandhi
v/s Raj Narain-1975. Ii) Right to exclude strangers from its proceedings:-In
modern times secret sessions are held only on exceptional occasions. Voters
must be kept informed about the working of their representatives in the
Legislature. Iii) Right to prohibit to
publication of its Reports and Proceedings: In a famous Searchlight case-1959, it was held by
the court that publication of expunged portion of speech constituted a breach
of the privilege of the House. Iv)Right
to regulate Internal Procedings:-In a case of S.M.Sharma v/s Sri Krishna Sinha-1959,
it was held by the court that the validity of the proceedings inside the
Legislature of a State cannot be called in question on the allegation that the
procedure laid down by law has not been strictly followed. The House has
exclusive right to regulate its own internal proceedings under article 122. V)Right to punish Members or
Outsiders for contempt:- Each House has the power to punish its members for
“Contempt of privilege.” A member may be suspended or expelled from the House
or may be sentenced to jail. Famous example of Mrs. Indira Gandhi was expelled
from her membership and she was sentenced to jail, prorogued for committing
contempt of Parliament while she was PM. Vi)
Privileges and Fundamental Rights:-As provided in article 19(1) guarantees for freedom of speech and expression to
every citizen of India but this right is subject to reasonable restrictions
under art. 19(2), whereas in art.
105 is an independent right and is not subject to any restrictions under Art.19 (1). Thus it is clear that the
freedom of speech under art.105 is different from the freedom of speech under
article-19, which is subject to restrictions.
9.
What do you understand from the term
Impeachment of the President. Discuss various steps required to be taken for
impeachment of President?
INTRODUCTION: - The President of India can be
removed from the office for violation of the constitution by impeachment. Such
a motion of impeachment can be initiated by any House of Parliament In such a
case one fourth of the members, of the house, intending to move such a motion
have to serve a fourteen days notice in writing. After the completion of the
stipulated period the motion is discussed and put to vote.
If two-thirds of
the members support the motion that it is passed for consideration of the other
House. The other House on receiving the motion investigates the changes. The
President is allowed the opportunity to present his defence either in person or
through his nominee. If the House despite the defence supports the motion by
two-thirds majority the President stands impeached.
The President
of India is entitled to certain legal immunity during his tenure. He is not
answerable to any court of law while discharging his responsibilities. He
cannot be arrested or imprisoned in connection with any civil or criminal case.
However civil suits may be instituted against him by serving at least two
months notice.
DEFINITION OF IMPEACHMENT: - Impeachment is the first of two stages in a specific
process for a legislative body to remove a Government official without that
official's agreement. The second stage is conviction.
Impeachment is so rare that the term can
be misunderstood. A typical misconception is to confuse it with involuntary
removal from office. In fact, it is only a legal statement of charges,
paralleling an indictment in criminal law. An official who is impeached faces a
second legislative vote (whether by the same body or another), which determines
conviction, or failure to convict, on the charges embodied by the impeachment.
Most Constitutions require a supermajority to convict. The word
"impeachment" derives from Latin roots expressing the idea of
becoming caught or entrapped, and has analogues in the modern French verb to
prevent and the modern English impede.
The process should not be confused with
a recall election. A recall election is usually initiated by voters and can be
based on "political charges", for example mismanagement, whereas
impeachment is initiated by a constitutional body (usually a legislative body)
and is usually based, but not always, on indictable offences. The process of
removing the official is also different.
Impeachment is a British invention.
Following the British example, the Constitutions of Virginia (1776) and
Massachusetts (1780) and other States thereafter adopted the impeachment
doctrine. In private organizations, a motion to impeach can be used to prefer
charges.
PROCEDURE OF IMPEACHMENT OF PRESIDENT OF
INDIA
Under Article 61, (1) When a President is to be
impeached for violation of the Constitution, the charge shall be preferred by
either House of Parliament.
(2)
No such charge shall be preferred unless-
(a)
the proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days' notice in writing, signed by not less than
1/4th of the total number of members of the House, has been given of
their intention to move the resolution, and
(b)
Such resolution has been passed by a majority of not less than 2/3rd
of the total membership of the House.
(3)
When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and
the President shall have the right to appear and to be represented at such
investigation.
(4)
If as a result of the investigation a resolution is passed by a majority of not
less than 2/3rd of the total membership of the House by which the
charge was investigated or caused to be investigated, declaring that the charge
preferred against the President has been sustained, such resolution shall have
the effect of removing the President from his office as from the date on which
the resolution is so passed."
CONCLUSION:- The word 'Impeachment' is an origin of British
convention which means to remove a Government official without any official
agreement and after the impeachment conviction has been provided to that
official. In India, it is a quasi-judicial procedure and President can only be
impeached on the ground of violation of the Constitution.
UNIT-III
10.
Discuss how the legislative Powers and Relations between the Union and the
States are distributed under the constitution?
INTRODUCTION:-
The distribution of powers is an essential feature of federalism. The object
for which a federal State is formed involves a division of authority between
the National Government and the separate States. In fact the basic principle of
federation is that the legislative, executive and financial authority is
divided between the Centre and State not by any law passed by the Centre but by
Constitution itself. This is what the Indian Constitution does.
LEGISLATIVE RELATIONS:- The
Constitution of India makes two-fold distribution of legislative powers:-
1. With
respect to Territory. 2. With respect of
subject-matter.
Territorial
Jurisdiction:-
Article 245 of the constitution provides that, Parliament may make laws
for the whole or any part of the territory of India. Law made by the parliament
shall not be deemed to be invalid on the ground that it has extra-territorial operation
i.e. takes effect outside the territory of India. Case of A.H.Wadia v/s Income tax Commissioner Bombay-1949, court held that
in the case of sovereign Legislature question of extra-territoriality of any
enactment can never be raised in the municipal court as a ground for
challenging its validity.”
Jurisdiction with
respect of subject-matter:- The constitution of India divides the
Legislative powers between the Union & States in three lists :-
i)
Union
List: - This list consists of 97 subjects. The
subjects mentioned in the Union list are of national importance i.e. defence,
foreign affairs, banking, currency and coinage, Union duties and taxes.
ii)
State
List:- It consists 66 subjects but out of 66
four have been deleted by constitutional amendments. These are of local
importance such as public order and police, local government, public health and
sanitation agriculture forest fisheries education state taxes and duties. The
state has the exclusive power to make laws on the above subjects.
iii) Concurrent List: - This
list contains 47 subjects. Some the new entries have also been made by
constitutional amendments. Both centre and state can make laws on the subjects
mentioned in this list. In case of any conflict between state and centre, the
central law will prevail.
iv)
i)
Legislative Power is plenary:-The power of the
Legislative under article 245 to enact laws is a plenary power subject to its
legislative competence and other constitutional limitations. The power to make
law includes the power to give effect to it prospectively as well as
retrospectively. The legislature has the power to alter the existing law and
has power to validate a law retrospectively subject to constitutional
limitations an ancillary power to legislate on the particular subject, as held
in the case of Govt. of A.P.v/s
Hindustan Machine Tools-1975.
iii)
Power
of legislation declaring earlier decision invalid unconstitutional:-In the case
of State of Haryana v/s Karnal Co-Operative Farmer’s Society-1993,
it has been held by the court that legislature has power to render ineffective
the earlier judicial decisions by removing or altering or neutralizing the
legal basis in un amended law on which such decisions were founded but it does
not have the power to render ineffective the earlier judicial decisions.
DISTRIBUTION
OF LEGISLATIVE POWERS:- It has pointed out that
the distribution of legislative powers between the Centre and the States. The nature of distribution varies according
to the local and political background in each country. In American constitution
enumerates the powers of the Central Government and leaving the residuary power
to the States.
1.
The present
constitution adopts the method followed by the Government of India Act 1935 and
divides the powers between the union and States in three lists: - i) The Union List: consists of 97 subjects. The
subjects are defence, foreign affairs, banking currency and coinage, union
duties and taxes. Ii) State List: it
consists 66 subjects but out of 66 four have been deleted by amendments. These
are local Government, Public health and sanitation, agriculture, forest,
fisheries and education.iii) The
Concurrent List: it contains 47 subjects some of the new entries have also
been made by amendment. Both centre and state make laws on the subjects
mentioned in these lists, In case of any conflict the law made by Centre will
be prevailed. In a case of Union of
India v/s HS.Dhillon-1972.
2. The Residuary Powers:
- Art. 248 of the constitution vests
the residuary powers in the Parliament. It says that the exclusive power to
make any law with respect to any matter not enumerated in the concurrent list.
According to it Parliament has exclusive power to make laws with respect to any
matter not mentioned in the state list or the concurrent list including any tax
not mentioned in either of three lists. Thus Indian Constitution is totally differing
from USA, Switzerland and Australia
where residuary powers are vested in the States. This reflects the leanings of
the constitution makes towards a strong centre.
11.
Discuss the scope and extent of the freedom of trade, commerce and intercourse
under the constitution of India.
INTRODUCTION:
- That the trade, commerce and intercourse
throughout the territory of India shall be free. The freedom is guaranteed by the provisions made in art301 in widest forms and applies to
all forms of trade, commerce and intercourse. It is subject to restrictions
specified in article of the constitution. The word ‘trade’ means buying or
selling of goods while the terms commerce includes all forms of transportation
such as by land, air or water. Thus the words ‘trade, commerce and intercourse
covered all kinds of activities which are likely to come under the nature of
commerce.
DEFINITION
OF TRADE, COMMERCE AND INTERCOURSE:- Article 301
of the constitution says, “Trade and commerce and intercourse among the States
whether by means of internal carriage or ocean navigation shall be absolutely
free.” The word absolutely free faces
many difficulties so that is why in India the Constitution itself lays down
restrictions on article 301. It is
also mentioned here that the word ‘free’
in this article does not mean freedom from laws or regulations.
The
object of Art.301:- The object of art.301 is the free movement and
exchange of goods throughout the territory of India which is essential in the
interest of economic unity of India. A case of Atibari Tea Co.Ltd., v/s State of Assam-1961.
In
case of State of Mysore v/s Sanjeeviah-1967,
the court held that the rule void as it was not a regulatory but restrictive
measure which infringed the right guaranteed under article 301.
1.
Power of Parliament t impose restrictions on trade, commerce and intercourse:- Parliament
may by law impose such restrictions on the freedom of trade, commerce and
intercourse between one State and another or within any part of the territory
of India as may required in the interest of pubic under article 302. A leading case of Suraj
Mal Roop Chand and Co., v/s State of Rajasthan-1967.
2.
Restrictions on the legislative powers of the Union and States with regard to
Trade & Commerce: - In art.302 neither
the Parliament nor the legislature of a State shall have power to make any law,
giving or authorizing the giving of any preference to one State over another or
making of any discrimination between states by virtue of any entry relating to
trade and commerce.
3.
Restricions on trade, commerce and intercourse among States:
- Art.304, (a) impose restrictions on goods imported from other States any tax
to which similar goods manufactured or produced in that state. (b) Impose reasonable restrictions on
the freedom of trade, commerce or intercourse with or within state as may be
required in the interest of public. A case of Automobile Transport Ltd., v/s State of Rajasthan-1962, provided
that no amendment for the purposes of imposing reasonable restrictions shall be
introduced in the legislature without the approval of the President.
4.
Saving of existing laws and laws providing for State monopolies:
- Article 305 saves existing laws
and laws providing for State monopolies in so far as the President may by order
or directions as done in the case of Saghir
Ahmad v/s State of U.P.-1964, it appears from the judgment of the Court
that in spite of such amendment a law introducing such State monopolies might
have to be justified before the courts as being in the public interest or
amounting to a reasonable restrictions on trade & commerce under article 306 also.
5.
Appointment of authority for carrying out the purposes of article-301:- As
per provisions Parliament may by law appoint such authority as it consider
appropriate for carrying out the purposes of article 301, 302, 303 and 304 and
confer on the authority so appointed such powers and such duties as it thinks
necessary.
CONCLUSION:-
Keeping in view the facts mentioned
above it is revealed that in all Federations an attempt is made through
constitutional provisions to create and preserve a national economic fabric to
remove and prevent local barriers to economic activity. To remove the hurdles
in the way of Inter-State trade and commerce, Govt., should make the country as
one single economic unit so that economic resources of all the various units
may be utilized to the common advantage of all.
12.
Explain the repugnancy between Union Law and State Law. What tests have been
laid down by the Supreme Court for determining the repugnancy between Union Law
& State Law?
INTRODUCTION:-
The repugnancy between Union Law and State Law applies where there is
inconsistency between a Central Law and a State Law relating to a subject
mentioned in Concurrent List. A similar position described in the case of M. Karunanidhi v/s Union of India-1979,
the court reviewed all its earlier decisions and summarized the test of
repugnancy.
DEFINITION:- Article
254 of the Constitution of India
says that if any provision of law made by the Legislature of the State in
repugnant to any provision of a law made by Parliament which is competent to
enact or to any provision of the existing law with respect to one of the
matters enumerated in the Concurrent List, then the law made by the Parliament
whether passed before or after the law made by legislature of such stage or as
the case may be the existing law shall prevail and the law made by the
legislature of the State shall to the extent of the repugnancy be void.
Repugnancy
how arises between the two statutes:
- It arises in the following situations:-
i)
It must be shown that
there is clear and direct inconsistency between the two enactments i.e. central
Act and State Act, which is irreconcilable so that they cannot stand together
or operate in the same field.
ii)
There can be no repeal
by implication unless the inconsistency appears on the face of two statutes.
iii)
Where two statutes
occupy a particular field but there is a room or possibility of both the
statutes operating in the same field without coming into collusion with each
other, no repugnancy results.
iv)
Where there is no
inconsistency but a statute occupying the same field seeks to create distinct
and separate offences, no question of repugnancy arises and both the statutes
continue to operate in the same field.
Tests
which have been laid down by the Supreme Court for determining the repugnancy
between Union Law & State Law:-
1. In M. Karunidhi’s case, The Supreme Court held that state act was
not repugnant to the Central Acts and therefore it did not repeal the Central
Act which continued to be in operation even after the repeal of the State Act
and can be invoked for the purpose of prosecuting the appellant. The State Act
creates distinct and separate offences with different ingredients and different
punishments and does not in any way collide with central Acts.
2. In Deep Chand v/s State of U.P.-1959, the validity of the U.P.
Transport services Act was involved. The State Government was authorized to
make the scheme for Nationalization of Motor Transport in the State. The
existing law did not contain any provision for the Nationalization of Motor
Transport. The Parliament with a view to introduce a uniform law amended M.V.
Act and added a new provision enabling the State Govt. to frame rules of
nationalization of Motor Transport. The court held that since both the Union
Law and the State Law occupied the same field, the State Law was void to the
extent of repugnancy to the Union Law.
3.
In Zaverbhai v/s State of Bombay-1954,
The Parliament enacted the Essential Supplies Act for regulating production,
supply and distribution of essential commodities. A contravention of any
provision of the above act was punishable with imprisonment up-to three years
or fine or both. On considering the punishment inadequate, the Bombay
Legislature passed an Act enhancing the punishment provided under the central
law. The assent of the President received and thus prevailed over the Central
Law. However later on the Parliament amended its act. It was held by the Supreme Court that both
occupied the same field, the State law become void as being repugnant to the
Central Law.
CONCLUSION:-
Where a law made by the legislature
of a State with respect to one of the matters enumerated in the concurrent list
contains any provision repugnant to the provisions of any earlier law made by
Parliament or an existing law with respect to that matter then the law so made
by the legislature of the State shall if it has been reserved for the
consideration of the President and has received his assent prevail in that
state.
From the gist of the above decisions, taken by
the Supreme Court it is revealed that the Supreme Court has done an important
role and judged the case impartial way by giving correct nature of justice.
13. Explain Doctrine of
Pleasure with decided cases of Law.
INRODUCTION:
- According to common law a civil servant
holds his office during the pleasure of Crown. This means his services can be
terminated at any time by the Crown without assigning any reason. Even if there
is a contract of employment between the Crown. The Crown is not bound by it. In
other words if a civil servant is dismissed from service he cannot claim
arrears of salary or damages for premature termination of his services. The
doctrine of pleasure is based on the public policy.
DEFINITION:
- Article 310 of the Indian Constitution
incorporates the Common Law doctrine of pleasure. It expressly provides that all person who are
members of the Defence services or Civil Service of Union or members of the
State Services hold office during the pleasure of the President and the Governor
respectively. It pertinent to quote here that the English law has not been
fully adopted in this article.
A civil
servant in India could always sue the crown for arrears of salary as has been
done in a case State of Bihar v/s Abdul
Majid-1954, the rule is qualified by the opening words of Art.310 itself places restrictions and
limitations on the exercise of the pleasure and is further limited by Art.311 (2).The services of the
permanent govt. employee cannot be terminated except in accordance with the
rules made under Art. 309 subject to
the procedure laid down in art.311 (2)
of the constitution and Fundamental Rights.
The above doctrine of pleasure is invoked by the Government in the
public interest after attaining the age of 50 years by the Govt. servant or has
completed 25 years of service. This is constitutionally permissible as
compulsory termination of service. It does not amount to dismissal or removal
by way of punishment. However the Govt. reserves its right under rule to
compulsory retire a Govt. servant even against his wish.
There is a corresponding right of the Government servant under financial
rules to voluntarily retire from service by giving three months notice. There
is no condition of acceptance of the request for voluntary retirement by the
Govt., when an employee exercises his right under financial rules as held in
the case of Dinesh Chandra v/s State of
Assam-1978.
Similarly under article 310
the government has the power to abolish a post.
However such an action whether executive or legislative is always
subject to judicial review. The question whether a person whose services are
terminated as a result of the abolition of post should be rehabilitated by
giving alternative employment is matter of policy on which the court has not
voice as held in the case of K.
Rajendran v/s State of Tamil Nadu-1982.
RESTRICTION ON DOCTRINE OF
PLEASURE
The constitution of India laid down certain
limitations on the exercise of doctrine of Pleasure, some of them are as
under:-
1.
The pleasure of the
President or the Governor is controlled by the provisions of Article 31, so the
field covered by article 311 is
excluded from the operation of the doctrine of pleasure as held in the case of Motiram v/s North Eastern Frontier
Railway-1964, it was held that the pleasure must be exercised in accordance
with the procedural safeguards provided in article
311.
2. It
ought to be mentioned here that the tenure of the Judges of Supreme Court, High
Court, Auditor General of India, Chief Election Commissioner and members of the
Public Service Commission are not dependent on the pleasure of the President or
the Governor. These posts are expressly excluded from the operation of the
doctrine of pleasure.
3.
The doctrine of
pleasure is subject to the fundamental rights as held in a case of Union of India v/s P.D. More-1962.
14. Explain the
Doctrine of Pith & Substance. Also
about Interstate Council.
INTRODUCTION:-
Within their respective spheres the
Union & State Legislature are made supreme and they should not encroach
into the sphere reserved to the other.
If a law passed by one encroaches upon the field assigned to the other
the court will apply the doctrine of pith and substance to determine whether
the legislature concerned was competent to make it.
Definition:-
Pith and substance of law i.e. the true object of the legislation or a statute
relates to a matter with the competence of legislature which enacted it. It
should be held to be intra-virus even though it incidentally trench on matter
not within the competence of the legislation. In order to ascertain true
character of the legislation one must have regard to the enactment as a whole
to its object and to the scope and effect of its provisions as held in a case
of A.S.Krishna v/s State of Madras-1957.
1.
The Privy Council
applied the doctrine in Profula Kumar
Mukerjee v/s Bank of Khulna-1947, in this case the validity of the Bengal
Money Lenders Act-1946. The court held that the Bengal Money Lenders act was
in, ‘pith and substance’ a law in respect of money lending and money lenders a
state subject and was valid even though it trenched incidentally on Promissory
Note.”
2.
In a case of State of Bombay v/s F.N. Balsara-1951,
the Bombay Prohibition Act, which prohibited sale and possession of liquors in
the state, was challenged on the ground that it incidentally encroached upon
import and export of liquors across custom frontier. The court held that the act
valid because the pith and substance of the act fell under the State List not
under the Union list even though the Act incidentally encroached upon the Union
Powers of Legislation.
3. A case of Ishwari
Khetal Sugar Mills v/s State of U.P.-1980, U.P.Sugar
Undertaking Act-1971 was challenged on the ground that the State Legislature
had no competence to enact the impugned law on the ground that it fell under
Parliament legislative power. The court however rejected these contentions and
held that there was no conflict between that state Act and the Central Act
under Industries Act, 1951, the act being Pith
and substance.
INTER-STATE
COUNCIL
INTRODUCTION:-
The main object behind this provision is to establish regular recognized
machinery for inter-government consultation and inter-state relations so that
departments or institution of co-ordination and research are to be maintained
in such matters as agriculture, forestry, irrigation, education and public
health. Inter-State council gives opportunity to the States to express their
views freely on common matter and enable the Centre to understand the feelings
of the States.
DEFINITION:-
The President of India has exercised
this power by consulting the Centre Council of Health and Central Council of
Local Self-Government and The State
Re-Organization Act, has set up five Zonal Councils. The Zonal Councils
consists Union Home Minister as ex-officio-Chairman, Chief Minister of the
State and two other ministers nominated by the Governor of the member state and
one person as advisor from Planning Commission and Chief Secretary of the
State. These councils have been established for the promotion of Co-operation
and for making the efforts to solve common problems of the member states.
Establishment
of Inter-State Council: - The President of
India in exercise of his powers under article 263 has constituted the
Inter-State Council on May 28, 1990. The Prime Minister shall be the Chairman
of the Inter-State Council and preside over its meeting. In his absence he may
nominate any Union Minister of Cabinet Rank to preside over the meeting.
Procedure
of the Council: - The council shall in the
conduct of its business observe the following procedure: - 1.The council shall
adopt guidelines for identifying and selecting issues to be brought before it.
2. Council may meet thrice in a year at time and place as Chairman decides
& will hold under camera. 3. The members and the Chairman shall form
questions to be discussed in the meeting. 4. The council however may observe
such other procedure as it may with the approval of the Central Government from
time to time.
Duties
of the Council: - The council shall be a
recommendatory body and it shall perform the following duties:-1.Investigate
and discuss subjects of common interest. 2. Make recommendations for the better
co-ordination of policy and actions on such subjects. 3. Delibrate on such
matters of general interest to the States referred by the Chairman to the
Council.
UNIT-IV
15.
Discuss the procedure of amendment of the Constitution. Can Parliament amend
the basic structure of Indian Constitution? Refer to case law.
INTRODUCTION:
- Amendment of the constitution n is made
with a view to overcome the difficulties which may encounter in future in
working of the Constitution. No generation has monopoly of wisdom not has it a
right to place fetters on future generations to mould the machinery of
government according to their requirements. If no provisions were made for the
amendment of the Constitution, the people would have recourse to extra
constitutional method like revolution to change the Constitution as it has been
done in the case of Keshwanand Bharti
v/s State of Kerla-1973.
PROCEDURE
OF AMENDMENT OF CONSTITUTION:- It is pertinent to
mention here that the machinery of amendment should be like a safety valve, so
devised as neither to operate the machine with two great facilities nor to
require, in order to set in motion an accumulation of force sufficient to
explode it. Thus we can safely say that the Indian federation will not suffer
from the fault of rigidity of legislation because it has the features of his
flexibility. In Art. 368 it laid down
that bill o amend the constitution may be introduced in either of House of
Parliament. It must be passed by each House by a majority of the total
membership to that House present and voting. When the bill is passed by both
Houses it shall be presented to President for his assent and after the assent
of the President the bill the constitution stand amended. For the purpose of
amendment the various articles of the constitution are divided into three
categories:-
1.
Amendment
by simple Majority:- Articles that can be
amended by the Parliament by a simple majority as that required for passing of
any ordinary law. The amendments contemplated in Articles 5, 169 and 239A can
be made by simple majority. These
articles are specifically excluded from the purview of the procedure prescribed
in article 368.
2.
Amendment
by special majority: - The article 368 also
provides some articles which can be amended by a special majority. All
constitutional amendments except article 5, 169 and 239A come within this
category and must be effected by 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:-
Articles which require in addition to the special majority ratification by not
less than ½ of the State Legislature. The states are given an important voice
in the amendments of these matters. These are fundamental matters where states
have power under the constitution. The
following provisions require ratification by the States:-
i)
Election of President
under art. 54 and 55.
ii)
Extent of Executive
powers of Union & States articles 73, 162.
iii)
Articles dealing with
judiciary Supreme Court, High Courts in the States and Union Territories i.e.
124 to 147, 214 to 231 and 241.
iv)
Distribution of
Legislative powers between the Centre and State 245 to 255.
v)
Article of 368 also.
Can
Parliament amend the basic structure of Indian Constitution
1. In Golak
Nath v/s State of Punab-1971 & Shankri Parsad v/s Sajjan singh cases,
the court held that Parliament had no power from the date of decision to amend
Part III of the constitution so as to take away or abridge the fundamental
rights.
2. In Keshavanand
Bharti v/s State of Kerla-1973, the petitioner contended that the amending
power was wide but not unlimited u/a368, the court by majority overruled the Golak nath case but held that under article 368, Parliament is not
empowered to amend the basic structure or framework of the constitution.
3.
As regards the scope of amending power contained in Art.368 the six Judges held that there are implied limitations on
the amending power of Parliament and art.368
does not confer power to amend the constitution so as to damage or destroy the
essential elements or basic features of the constitution.
4. In Minerva Mills v/s
Union of India-1980, Supreme Court by 4 to
1 majority struck down clause 4 and 5 of article 368 on the ground that these
clauses destroyed the essential feature of the basic structure of constitution.
Question No.16: Write notes on Financial Emergency & Election of
Panchayat.
FINANCIAL
EMERGENCY:- INTRODUCTION: - . Sometimes such a
critical situations arisen whereby the financial position or the creditability
of India becomes worst and to tackle such situations if the President of India
satisfied himself that the time has come whereby he may by a proclamation make a declaration
to this effect.
WHAT
IS FINANCIAL EMERGENCY:- Article 360 of the constitution of India provides that if the
President of India is satisfied that situation has arisen whereby the financial
stability or credit of India or part of the territory thereof is threatened, he
may by a proclamation make a declaration of Financial Emergency in the State.
The 44th.
Amendment the article 360 makes self-contained with the following:-
1. That
the proclamation of financial emergency shall cease to be in operation at the
expiry of two months unless it has been approved by both Houses of Parliament.
2.
That such a proclamation
may be revoked or varied by the President by a subsequent proclamation.
3.
That if the Lok Sabha
is dissolved during the period of two months and resolution is approved by the
Rajya Sabha but not by the Lok Sabha the proclamation shall cease to operate at
the expiry of 30 days, from the date on which the new Lok Sabha sits.
4.
During the period when
such proclamation is in operation the executive authority of the Union shall
extend to the giving directions to any State to observe such canons of
financial propriety.
5.
Any such direction may
include a provision for the reduction of salaries and allowances of all or any
class of persons serving in a State including the Judges of the Supreme Court
and High Courts.
6. It
may also require that all Money or Financial Bills are to be reserved for the
consideration of the President after they are passed by Legislature of State.
CONCLUSION:
The constitution of India is unique in
respect that it contains a complete scheme for speedy re-adjustment of the
peace-time government machinery in movements of national peril. These
provisions may appear to be particularly in a constitution which professes to
be built upon a large building of fundamental rights and democracy. India had
her in glorious days whenever central power grew weak, the constitution guard’s
stands against the forces of disintegration.
ELECTION
OF PANCHAYAT
INTRODUCTION:-
The constitution of India in its provisions has laid down directions for the
preparation of electoral rolls and to conduct of all elections to the
Panchayats shall be vested in a State Election Commission consisting of State
Election Commissioner to be appointed by the Governor subject to conditions
laid down in the law.
PROVISIONS AND PROCESS OF PANCHAYAT
ELECTION
Article
243K provides that superintendence direction
and control of the preparation of electoral rolls for and the conduct of all
elections to the Panchayats shall be vested in a State Election Commission
consisting of a State Election Commissioner to be appointed by the Governor of
the State.
1. The
above instructions are subject to the provisions of any law made by the
Legislature of a State, the conditions of service and tenure of office of the
state Election Commissioner shall be such as the Governor may by rule
determine.
2. The
state Legislature may subject to the provisions of the Constitution by law make
provision with respect to all matters relating to or in connection with
elections to the Panchayat.
3. The
Governor of State shall when so requested by the Election Commission to provide
staff as may be necessary for the discharge of its functions.
4. Election in Union
Territories: - The President may however by
public notification direct that the provisions of shall apply to any Union
territory.
5. Continuance of existing
laws and Panchayats:- All the Panchayats
existing immediately before such government shall continue till the expiration
of third duration unless sooner dissolved by resolution passed by the
legislature Assembly of that State.
6. Courts not to interfere
in electoral matters:-Article 243-O bars
the interference by Courts in electoral matters of panchayats. It provides that
anything in this constitution the validity of any law relating to determination
of constituencies or the allotment of seats to such constituencies made under
Article 243K shall not be called in question in any court.
17. Discuss the various
grounds of proclamation of Emergency in India. Also explain the consequences of
such proclamation.
INTRODUCTION:
- Proclamation of emergency can be made
even before the actual occurrences of the event contemplated in the
constitution have taken place. One of the chief characteristic of the Indian
Constitution is the way in which the normal federal constitution can be adopted
to emergency situation. It is the merit of the constitution that it visualizes
the circumstances when the strict application of the federal principles might
destroy the basic assumptions on which constitution built.
Types
of Emergency:- The constitution of India
provides for three types of emergency:-
1.
National
Emergency: due to war, external aggression or
armed rebellion under Article 352 of the constitution.
2.
State
Emergency: due to failure of constitutional
machinery in the States under article 356 of the constitution.
3.
Financial
Emergency: provided under article 360 of the
constitution.
1.
NATIONAL EMERGENCY: - Article 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 by 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.
2.
The President shall not issue a Proclamation unless the decision of the Union
cabinet i.e. Council consisting of Prime Minister and other ministers of
cabinet rank to suggest that such proclamation may be issued.
3.
This means that the emergency can be declared only on concurrence of the
cabinet and not merely on the advice of the Prime Minister as was done by Mrs
Indira Gandhi in June, 1975.
4.
The Proclamation of Emergency must be laid down before each House and it shall
cease to be in operation at the expiration of one month.
5.
The Proclamation of Emergency once approved by Parliament shall remain in force
for a period of six months from the date of passing of the resolution.
Grounds:-a. Threatened
either by war or external aggression b. armed
rebellion.
Effects
of Proclamation of Emergency:-1.Extension of
Centre’s Power (353) the executive power of the Union extends to giving of
directions to any State. 2.
Parliament empowered to legislate on the State subjects under art. 353(b):Union
Parliament is empowered to make laws with respect to any of the matters in
State List. 3. Centre empowered to
alter distribution of revenue between Union & State354:Every such order is
to be laid before each House of Parliament till cease of emergency.4.Suspension of Fundamental Rights
guaranteed by Art.19: Six fundamental rights under art.358 shall remain
suspended during emergency period.5.Extension
of life of Lok Sabha: during emergency the President may extend the normal life
of Lok Sabha by a year each time.
STATE
EMERGENCY:-Art.356says
that if the President on receipt of a report from the Governor of a state or
otherwise satisfied that a situation has arisen in which Govt. of the state
cannot be carried on in accordance with the provisions of constitution, he may issue a Proclamation which results
that:1.President may assume all powers vested in or exercisable by the Governor
or to anybody or authority in the state.2.That the powers of the legislature of
the state shall be exercised by the Parliament. In 1959 President Rule imposed in Kerla in Peculiar circumstances. In
1967 in Haryana and in 1975 in
Nagaland the President Rule was imposed. In1976
in Gujrat. Nine Assemblies Dissolution in 1977
and similarly in 1980 also and
were asked to obtain fresh mandate. President Rule in Goa in 1998 due to defection of 10 MLA’s from
Congress Party. President Rule in Bihar in 1999, revoked and not approved by
Parliament because of two successive massacres of Dalits. President Rule in Bihar in 2005, as no party had the
required majority of 122MLA’s in 243 member Assembly. President Rule in Karnataka-2007, in Nagaland in 2008, in Jharkhan
in 2009 and in Meghalaya in 2009.
FINANCIAL
EMERGENCY:- Article
360 provides that if the President is satisfied that the situation as
arisen whereby the financial stability or credit of India or part of the
territory thereof threatened he may by a Proclamation make a declaration to
that effect. 44th. amendment makes art.360 self-contained; it provides that the
proclamation of financial emergency shall
cease to be in operation at the expiry of two months unless it has been
approved by both Houses of Parliament. Such a proclamation is revoked or
varied by the President by a subsequent proclamation but if the Lok Sabha is
dissolved during two months then it will approve by Rajya Sabha but not by the
Lok Sabha the proclamation shall cease to operate at the expiry of 30 days from
the date on which new lok Sabha sits. During the period of Financial Emergency
executive of Union shall extend to giving direction to any State. Any sch
directions may include a provision for the reduction of salaries of any class
of persons serving in State including the Judges of S.Court and High Courts.
All Money or finance bills are to be considered by President after these are
passed by the Legislature of State.
The duration of a proclamation of financial
emergency will be in operation for two months and unless approved by President
it shall cease to operate at the expiry of two month’s period. Our constitution
is unique in respect of speedy re-adjustment of the peace-time. Constitution
which professes to be built upon an edifice of fundamental rights and democracy.
UNIT – V
Doctrine
of Pith & Substance
Definition:-
Pith and substance of law i.e. the true object of the legislation or a statute
relates to a matter with the competence of legislature which enacted it. It
should be held to be intra-virus even though it incidentally trench on matter
not within the competence of the legislation. In order to ascertain true
character of the legislation one must have regard to the enactment as a whole
to its object and to the scope and effect of its provisions as held in a case
of A.S.Krishna v/s State of Madras-1957.
1.
The Privy Council
applied the doctrine in Profula Kumar
Mukerjee v/s Bank of Khulna-1947, in this case the validity of the Bengal
Money Lenders Act-1946. The court held that the Bengal Money Lenders act was
in, ‘pith and substance’ a law in respect of money lending and money lenders a
state subject and was valid even though it trenched incidentally on Promissory
Note.”
2.
In a case of State of Bombay v/s F.N. Balsara-1951,
the Bombay Prohibition Act, which prohibited sale and possession of liquors in
the state, was challenged on the ground that it incidentally encroached upon
import and export of liquors across custom frontier. The court held that the
act valid because the pith and substance of the act fell under the State List
not under the Union list even though the Act incidentally encroached upon the
Union Powers of Legislation.
3. A case of Ishwari
Khetal Sugar Mills v/s State of U.P.-1980, U.P.Sugar
Undertaking Act-1971 was challenged on the ground that the State Legislature
had no competence to enact the impugned law on the ground that it fell under
Parliament legislative power. The court however rejected these contentions and
held that there was no conflict between that state Act and the Central Act
under Industries Act, 1951, the act being Pith
and substance.
Ordinance
Making Power
(Under article: 123)
i)
The President can also promulgate
ordinances during the recess of the Parliament. Ordinance is an emergent legislation.
If legislation is warranted at a time when the legislature is not in session,
the President on the request of the executive can issue an ordinance having the
force and effect of an Act.
ii)
However every such ordinance must be laid
before both the Houses of Parliament and shall cease to operate, on the expiry
of six weeks from the date of is reassembly, unless approved by the Parliament.
The ordinance also becomes in operative if before the expiry of six weeks a
resolution is passed by Parliament against it.
iii)
The ordinance may be withdrawn by the
President at any time. Over and above the President of India have the powers to
constitute the Parliament partially by virtue of his powers to nominate members
to both the Houses of the Parliament.
iv)
The ordinance making power of the
President is co-extensive with the legislative power of the Parliament.
v)
The validity of the ordinance making
power of the President had been challenged in a number of cases and the court
has upheld is constitutionally in its decisions. In a case of S.K.Garg v/s
Union of India-1981.
vi)
Ordinance making power is to enable the
executive o deal with the unforeseen or urgent matters which might well include
a situation created by a law being decared void by a court of Law. In a case
vii)
of A.K.Roy v/s Union of India-1982, it
was held that the ordinance was valid and not violative of Art.14
DOCTRINE
OF PLEASURE.
INRODUCTION:
- According to common law a civil servant
holds his office during the pleasure of Crown. This means his services can be
terminated at any time by the Crown without assigning any reason. Even if there
is a contract of employment between the Crown. The Crown is not bound by it. In
other words if a civil servant is dismissed from service he cannot claim
arrears of salary or damages for premature termination of his services. The
doctrine of pleasure is based on the public policy.
DEFINITION:
- Article 310 of the Indian Constitution
incorporates the Common Law doctrine of pleasure. It expressly provides that all person who are
members of the Defence services or Civil Service of Union or members of the
State Services hold office during the pleasure of the President and the
Governor respectively. It pertinent to quote here that the English law has not
been fully adopted in this article.
A civil
servant in India could always sue the crown for arrears of salary as has been
done in a case State of Bihar v/s Abdul
Majid-1954, the rule is qualified by the opening words of Art.310 itself places restrictions and
limitations on the exercise of the pleasure and is further limited by Art.311 (2).The services of the
permanent govt. employee cannot be terminated except in accordance with the
rules made under Art. 309 subject to
the procedure laid down in art.311 (2)
of the constitution and Fundamental Rights.
The above doctrine of pleasure is invoked by the Government in the
public interest after attaining the age of 50 years by the Govt. servant or has
completed 25 years of service. This is constitutionally permissible as
compulsory termination of service. It does not amount to dismissal or removal
by way of punishment. However the Govt. reserves its right under rule to
compulsory retire a Govt. servant even against his wish.
There is a corresponding right of the Government servant under financial
rules to voluntarily retire from service by giving three months notice. There
is no condition of acceptance of the request for voluntary retirement by the
Govt., when an employee exercises his right under financial rules as held in
the case of Dinesh Chandra v/s State of
Assam-1978.
Similarly under article 310
the government has the power to abolish a post.
However such an action whether executive or legislative is always
subject to judicial review. The question whether a person whose services are
terminated as a result of the abolition of post should be rehabilitated by
giving alternative employment is matter of policy on which the court has not
voice as held in the case of K.
Rajendran v/s State of Tamil Nadu-1982.
PARLIAMENTARY
PRIVILEGES
The constitutional provisions regarding privileges
of the State Legislature and Parliament are identical. While the article 105 deals with the privileges
of Parliament whereas Act 194 deals
with the privileges of State Legislature. There are two privileges:-
1.Freedom
of Speech :- That there shall be freedom of
speech in parliament and that no member of parliament shall be liable to any
proceedings in any court in respect of anything said or any vote given by him
in Parliament or any committee thereof under the article 105 of the constitution.
This act gives absolute immunity from courts for anything said within
the four walls of the House and if a member repeats or publishes a defamatory
speech made by him within the House, he does so, on his own responsibility and
risk and held for prosecution under
Sec.500 IPC.
Art.121 prohibits any
discussion in Parliament with respect to the conduct of a Judge of the Supreme
Court or a High Court in discharge of his duties. Under rule 349 to 356 of Lok
Sabha use of unparliamentarily language or unparliamentarily conduct of a
member is prohibited
2.
Right of Publication of its Proceedings:
- That no Member of Parliament shall be liable to any proceeding in any court
in respect of anything said or any vote given by him in Parliament or any
committee thereof and no person shall be liable in respect of publication by or
under the authority of either on the basis of provisions laid down in article 105(2). In a case of Surendra v/s Nebakrishna-1958, who was
an editor of a newspaper, was held guilty of committing contempt of court for
publishing a statement of the House. It was held that there were many
advantages to the public which has the deepest interest in knowing what passes
in Parliament.
The object of the protection is to enable the members to speak their
mind in Parliament freely and fearlessly. The court held that the MP’s who had
taken bribe and voted in Parliament against no confidence motion brought
against the Narsimba Rao government are entitled to the protection of Art.
105(2). The Parliamentary Proceedings Act-1956 was passed which provides that
no person shall be liable to any proceeding civil or criminal in any court in
respect of the publication of the report of the proceedings of either House of
Parliament unless it is proved that publication of such proceeding expressly
ordered to be expunged by the speaker.
WHAT
IS POSITION OF PRESIDENT INDIA.
Introduction:
- The President of India is the head
of state of the Republic
of India. The President is the formal head
of the executive,
legislature and judiciary of India and is the commander-in-chief of the Indian
Armed Forces. The Indian President has to appoint the Prime Minister of India.
The President also appoints the Council of Ministers and with the Prime
Minister’s advice he/she distributes the portfolios to the Council of
Ministers. The President is also accountable to make a wide range of
appointments. The president can assign governors of States, Attorney General,
Chief Justice, Chief Election Commissioner, Ambassadors and High Commissioners
to other countries.The followings are the powers of President:-
The Executive powers:
- Art
53 of the constitution lies down that the executive power of the union shall be
vested in the President.
Legislative
powers:- The
President of India is an integral part of the Union Parliament. The Parliament
cannot function without involving him. Because he alone can summon and prorogue
the Houses of Parliament.
Military
Powers:-i)
The constitution vests the Supreme Command of the Defence Force in the
President of India. As such he makes all important appointments in the Defence
Force including the Chief of the three wings the Armed Force, the Air Force and
the Naval Force.
5.
Diplomatic Powers:- The President enjoys wide diplomatic powers or
powers over foreign or external affairs.
6. Judicial Powers:-
The President of India as head of the executive enjoys some judicial powers. He
can grant pardons, reprieves or
respites or remission of punishment. He can suspend, remit or commute the
sentence of any person convicted of any offence in cases where the punishment
is by a court martial or death sentence.
Financial
Powers:- i) With regard to his powers in the field of finance the constitution
provides that all money bills will need his consent. ii) He is empowered to
order for the presentation of the report of the Auditor General of India
relating to the accounts of the Government of India. Sometimes some awkward
situations may demand very tough action or the part of the chief executive. v) The President of India has been given some
extraordinary powers to deal with such emergent situation.
7. Emergency powers: -
i)
The makers of the Indian constitution were influenced by the relevant
provisions of the Government India Act, 1935 ii) In the Constitution
There are 3types of emergencies: National, State &
Financial emergencies.
PARDONING POWER OF
PRESIDENT OF INDIA
Under Article 72, President of India has power
to grant pardons reprieves, respites, or remission of Punishment or to suspend,
remit or commute the sentence of any person convicted of any offence i.e. By
Court Martial or by an offence against any law relating to a matter to which
the executive power of the Union extends or in all the cases in which the
sentence is one of death.
The object of
conferring the judicial power on t he President is to correct possible judicial
errors for no human system of judicial administration can be free from
imperfection. A pardon completely absolves the offender from all sentences and
punishments and disqualifications and places him in the same position as if he
had never committed the offence.
Commutation means
exchange of one thing for another. Hiere
it means substitution of one form of punishment for another of a lighter
character such as for rigorous imprisonment to simple imprisonment. Remission
means reduction of the amount of sentence without changing its character for
example sentence of one year may be remitted to six months. Respite means
awarding a lesser punishment on some special grounds like the pregnancy of a
woman offender. Reprieve means temporary suspension of death sentence e.g.
pending a proceeding for pardon or commutation.
In the
case of Nanawati’s -1961, The
Supreme Court held that in view of the language of article 72 and 161 which was
similar to that used in sec. 295 of the Act-1935 therefore the pardoning power
can be exercised before, during or after trial. In Maru ram v/s Union of India-1981, the power to pardon is exercised
by the President on the advice of the Council of Minister.
ADVISORY JURISDICTION OF SUPREME COURT
Article 143 of the constitution provides that if at any time it appears
to the President that a question of law or fact has arisen or is likely to
arise and a question of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it he may refer the
question for the Advisory opinion of the Court and the Court may after such
hearing as it thinks fit report to the President.
Under the rule the President refers to the Supreme Court the matters which are excluded from its
jurisdiction under the provision to Art. 131 the court shall bound to give its
opinion.
The Supreme Court of India like the Canadian Supreme Court exercises the
powers to give advisory opinion to the President. The Government of India Act, 1935 empowered
the Governor-General to consult the Court. There are number of cases which have
been sent to the Supreme Court for his advisory opinion, however some of the
important cases are under:-
i)
Delhi Law
Act-1951.
ii)
In Re Kerala
Education Bill.
iii)
In Re Berubari
case.
iv)
In Re
Presidential Bill in 1974
v)
In Re Special
Court Bill 1978.
vi)
Ayodhya Dispute
case.
INDEPENDENCE
OF JUDICIARY
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 essential
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.
For this issue the constitution has made the following provisions to ensure
independence of judiciary.
1.
Security of Tenure:
- The judges of the Supreme Court have security of tenure and they cannot remove
from office except by an order of the President by adopting the set procedure
laid down in the constitution.
2. Salary of Judges
fixed not subject to vote of Legislature:
- The salary and allowances of the judges of the Supreme Court are fixed by the
constitution and being paid from Consolidated Fund of India. Salary cannot be
altered.
3. Parliament can
extend but cannot curtain the jurisdiction and power of the Supreme Court:- To work more effectively the Parliament may enhance
the jurisdiction of the Supreme Court in civil cases, here the point to be
noted that in all the provisions the Parliament an exceed, but cannot curtail
the jurisdiction and power of the Supreme Court under article 138.
4. No discussion in
Legislature on the conduct of Judges:-
Neither in Parliament not 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 under article121.
5. Power to punish
for its contempt:- The supreme
Court and the High Court have the power to punish any person for its contempt
under article 129 and 215, this power is very essential for maintaining the
impartiality and independence of the Judiciary.
6. Separation of
judiciary from executive:- States have
been directed by the constitution through article 50 to take steps to separate
the judiciary from the executive in the interest of public service of the
State.
7. Judges of the
Supreme Court are appointed by the Executive with the consultation of Legal
experts:-Executive cannot appoint the Judges
without the consultation of the Judges of the Supreme Court as provided in Art.
124(2).
8.
Prohibition on practice after retirement:- Under article 124(7) of the constitution a retired
Judge of the supreme Court is prohibited to appear and plead in any court or
before any authority within the territory of India.
ROLE OF
GOVERNOR OF STATE
The Governor being the executive head, all executive actions are taken
in his name. He is to act on the advice
of his Council of Ministers. The Governor is no doubt vested with considerable
powers but as a matter of convention he is not expected to exercise these
powers to the detriment of the State. He
is a constitutional Governor and is therefore the constitutional Head of the
State.
Appointment of a Governor: - The
Governor of a State is appointed by the President of India as provided in
article 155. He is neither elected by
the direct vote of the people nor by an indirect vote by a specially
constituted Electoral College as in the case with the President. He is a
nominee of the Central Government.
Tenure
and Removal of a Governor:- Article
156 of the Constitution says that the
Governor shall hold office during the pleasure of the President subject to this
rule. The tenure of the Governor is fixed for five years from the date on which
he enters upon his office. Governor is to exercise of pleasure of the
President. Thus it lies within the power of the President to terminate in his
discretion the term of Governor.
Role
of Governor: -1. Governor appoints Ministers and they hold
office during his pleasure as provided in article 164.
2.
The Governor has
a right of opening address, of addressing and sending messages to and of
summoning, proroguing and dissolving the Legislature, just as the President has
under article 174-176.
3.
He has the power
to cause the annual financial statement to be laid before the State Legislature
as in article 202 and making demands for grants and recommending Money Bills as
provided in article 207(1).
4.
He has the power
of making Ordinances during the recess of the Legislature and power of vetoing
State Bills.
5.
He has the power
to reserve the State Bills for the consideration of the President.
How the Impeachment of the
President is initiated?
Introduction:- The President of India can be
removed from the office for violation of the constitution by impeachment. Such
a motion of impeachment can be initiated by any House of Parliament In such a
case one fourth of the members, of the house, intending to move such a motion
have to serve a fourteen days notice in writing. After the completion of the
stipulated period the motion is discussed and put to vote.
If two-thirds of
the members support the motion that it is passed for consideration of the other
House. The other House on receiving the motion investigates the changes. The
President is allowed the opportunity to present his defence either in person or
through his nominee. If the House despite the defence supports the motion by
two-thirds majority the President stands impeached.
The President of
India is entitled to certain legal immunity during his tenure. He is not
answerable to any court of law while discharging his responsibilities. He
cannot be arrested or imprisoned in connection with any civil or criminal case.
However civil suits may be instituted against him by serving at least two
months notice.
Definition of Impeachment:- Impeachment is the first of two stages in a specific
process for a legislative body to remove a Government official without that
official's agreement. The second stage is conviction.
Impeachment is so rare that the term can
be misunderstood. A typical misconception is to confuse it with involuntary
removal from office. In fact, it is only a legal statement of charges,
paralleling an indictment in criminal law. An official who is impeached faces a
second legislative vote (whether by the same body or another), which determines
conviction, or failure to convict, on the charges embodied by the impeachment.
Most Constitutions require a supermajority to convict. The word
"impeachment" derives from Latin roots expressing the idea of
becoming caught or entrapped, and has analogues in the modern French verb
empêcher (to prevent) and the modern English impede .
The process should not be confused with
a recall election. A recall election is usually initiated by voters and can be
based on "political charges", for example mismanagement, whereas
impeachment is initiated by a constitutional body (usually a legislative body)
and is usually based, but not always, on indictable offences. The process of removing
the official is also different.
Impeachment is a British invention.
Following the British example, the Constitutions of Virginia (1776) and
Massachusetts (1780) and other States thereafter adopted the impeachment
doctrine. In private organizations, a motion to impeach can be used to prefer
charges.
Procedure for impeachment of the
President:- Under Article 61, (1) When a
President is to be impeached for violation of the Constitution, the charge
shall be preferred by either House of Parliament.
(2)
No such charge shall be preferred unless-
(a)
the proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days' notice in writing, signed by not less than
1/4th of the total number of members of the House, has been given of
their intention to move the resolution, and
(b)
Such resolution has been passed by a majority of not less than 2/3rd
of the total membership of the House.
(3)
When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and
the President shall have the right to appear and to be represented at such
investigation.
(4)
If as a result of the investigation a resolution is passed by a majority of not
less than 2/3rd of the total membership of the House by which the
charge was investigated or caused to be investigated, declaring that the charge
preferred against the President has been sustained, such resolution shall have
the effect of removing the President from his office as from the date on which
the resolution is so passed."
Conclusion:- The word 'Impeachment' is an origin of British
convention which means to remove a Government official without any official
agreement and after the impeachment conviction has been provided to that
official. In India, it is a quasi-judicial procedure and President can only be
impeached on the ground of violation of the Constitution.
1.
Qualification
and disqualification of the member of Rajya Sabha ?
Introduction:- The ‘Council
of States’ which is also known as Rajya Sabha, a nomenclature that was
announced by the chair in the House on the 23rd August, 1954 has its own
distinctive features. The origin of the second Chamber can be traced to the
Montague-Chelmsford Report of 1918. The Government of India Act, 1919 provided
for the creation of a ‘Council of State’ as a second chamber of the then
legislature with a restricted franchise which actually came into existence in
1921. The Governor-General was the ex-officio President of the then Council of
State. The Government of India Act, 1935, hardly made any changes in its
composition.
The Constituent Assembly, which first met on 9 December 1946, also
acted as the Central Legislature till 1950, when it was converted as ‘Provisional
Parliament’. During this period, the Central Legislature which was known
as Constituent Assembly (Legislative) and later Provisional Parliament was
unicameral till the first elections were held in 1952.
Extensive debate took place in the Constituent Asse
.mbly regarding the utility or otherwise of a Second Chamber in Independent
India and ultimately, it was decided to have a bicameral legislature for
independent India mainly because a federal system was considered to be most feasible
form of Government for such a vast country with immense diversities. A
single directly elected House, in fact, was considered inadequate to meet the
challenges before free India. A second chamber known as the ‘Council of
States’, therefore, was created with altogether different composition and
method of election from that of the directly elected House of the People.
It was conceived as another Chamber, with smaller membership than the Lok Sabha
(House of the People). It was meant to be the federal chamber i.e.,
a House elected by the elected members of Assemblies of the States and two
Union Territories in which States were not given equal
representation. Apart from the elected members, provision was also made
for the nomination of twelve members to the House by the President. The
minimum age of thirty years was fixed for membership as against twenty-five
years for the Lower House. The element of dignity and prestige was added
to the Council of State House by making the Vice-President of India ex-officio
Chairman of the Rajya Sabha who presides over its sittings.
Qualifications :- Article 84 of the Constitution lays
down the qualifications for membership of Parliament. A person to be
qualified for the membership of the Rajya Sabha should posses the following
qualifications:
1.
he must be a citizen of India
2.
he must be not less than 30 years of age;
3.
he must possess such other qualifications as may be
prescribed in Parliament.
Disqualifications :- Article 102 of the Constitution lays
down that a person shall be disqualified for being chosen a member of either
House of Parliament –
1.
if he holds any office of profit under the Government of
India or the Government of any State.
2.
if he is of unsound mind and stands so declared by a
competent court;
3.
if he is an undischarged insolvent;
4.
if he is not a citizen of India.
5.
if he is so disqualified by or under any law made by
Parliament.
A member nominated to the House by the President,
however, is allowed to join a political party if he/she does so within the first
six months of taking seat in the House.
A member shall not be disqualified on this account, if he
voluntarily leaves the membership of his political party after he is elected
Deputy Chairman, Rajya Sabha.
Process for Election/Nomination
Electoral College: The representatives of the States and
of the Union Territories in the Rajya Sabha are elected by the method of
indirect election. The representatives of each State and two Union
territories are elected by the elected members of the Legislative Assembly of
that State and by the members of the Electoral College for that Union
Territory.
Biennial/Bye-election:- Rajya Sabha is a permanent House and is
not subject to dissolution. However, one-third Members of Rajya Sabha
retire after every second year. A member who is elected for a full term
for a period of six years. A member elected in a bye-election remains
member for the remaining term of the member who had resigned or died or
disqualified to be member of the House under the Tenth Schedule.
Conclusion :- Rajya Sabha has played a constructive
and effective role in our politics. Its performance in the legislative
field and in influencing the Government policies has been quite
significant. Rajya Sabha has, in fact, worked in a spirit of cooperation
with Lok Sabha as per the Constitutional mandate. Rajya Sabha has
prevented hasty legislation and has served as dignified chamber representing
the federal principle. As a federal chamber, it has worked for the unity
and integrity of the nation and has reinforced the faith of the people in
parliamentary democracy.
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