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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

(An e-initiative by KCL)

NOTES

 

 

ON

Code

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105

Subject

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Constitutional Law of India

Course

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V

Class

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LL.B. 1st Yr

 Note : Only KCL students are authorized to download the notes

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Basic Structure of the Indian Constitution Q.1 A) Define “Preamble” Can it be Amended?

B) What is the basic structure theory. Discuss with the help of decided cases of the Supreme Court.

Basic structure of the Indian Constitution is an inherent organ of the Original Constitution. In various cases the court verdicts describes the Basis structure as follows.

Rule of Law – In Indra Nehru Gandhi v. Raj Nurayan AIR 1975 S.C. 2299- The S.C. while Interpreting Art 14 held that rule of Law is the Basic structure of the Indian Constitution.

Natural Justice – In Menka Gandhi v. Union Of India AIR 1978 S.C. 597 the Supreme Court held that Natural Justice is the Basic structure (feature) of the Indian Constitution.

Secularism – In S.R. Bommai v. union of India AIR 1994 the court held that Secularism is a Basic Structure of the Indian Constitution.

-Harmony between D.P.S.P and Fundamental right. In Minarua Millsv.Union of India AIR

1980 and Sanjeev Coke Mfg. Ltd. V.Bharat Cooking Ltd.1983.

The S.C. held that harmony between D.P.S.P. and fundamental right is the basic structure of the Indian Constitution.

In Kesvananda Bharti v.State of Kerala AIR 1973

A special bench of 13 judge declared the following as fundamental rights – According to C.J.Sikri

1.Supremacy of the Constitution

2.Republic and democratic form of Govt.

3.Secular character of the constitution.

4.Separation of power between three organ

5.Federal character of the constitution.

Judicial review. The judicial review was also known as the basic structure of the Indian Constitution.

In Indira Nehru Gandhi V.Raj Narayan AIR 1975 S.C 2299-

1.Rule of law

2. Judicial review

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

3.Democracy which implies free and fair election

4. Jurisdiction of Supreme Court U/A 32 is also Basic Structure of Indian Constitution.

In Bhim Singh v.Union of India (2010) 3 SCC 538

The S.C.held that separation of power is an essential feature of the Indian Constitution.

“Preamble” is taken from Australian Constitution.

We, The People of India, having Solemnly resolved to Constitute India into a Sovereign Socialist, Secular Democratic Republic and to secure to all its citizens.

Justice – Social, Economic and Political

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

Equality – of status and of opportunity and to promote among them all.

Fraternity assuring the dignity of the individuals and the unity and integrity of the Nation, In our Constituent Assembly this 26 Nov. 1949 do hereby Adopt, Enact and give to ourselves tthis Constitution.

By 42th Constitution Amendment Act 1976 three words Socialist, Secular and Integrity was inserted.

Whether – the Preamble is part of the Indian Constitution?

In re Berubari Case – the Supreme Court held that the Preamble is not a part of Indian Constitution it is a key to open the Mind of makers

In Kesavananda Bharti v.State of Kerala, AIR 1973 S.C. 1461

The Supreme Court rejected the above view and held that the preamble is the part of the Indian Constitution

In Kuldeep Nayyer v.Union of India (2006) 7 S.C.1 the nature of the preamble was discussed and held that preamble is a part of the Constitution.

Sovereign – the people have themselves adopted and enacted their constitution, the people are the ultimate master. Under the Constitution, India has an independent and sovereign character.

Socialist – Participation of every section of the country Police State every sphere – to fulfill the golden dream of constitution.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Social Welfare State – by enforcement of D.P.S.P. & fundamental right

Secularism all religion‟s should enjoy the equal respect In S.R.Bommai v.Union of India (1994) 3 Scc1. Secularism is a part of the basic structure of the Constitution.

In Aruna Roy V.Union of India (2002) the real meaning of secularism is Serva Dharma Sambhav. Meaning equal treatment and respect for all religions.

Democratic – Creation and existence of the Govt. at the will of the people for five years by adult sufferage.

Republic – The President will be reelected in between the public by independent elections not from a particular family.

Amendment – 2. In Kesavananda Bharti Case the Court held that as preamble is part of the Constitutions so it can be amended so for does not violates fundamental or basic structure of the Constitution – State of Kerala and others v. people Union Civil Liabilities and others (2009) VII

Sec 46 – S.C. held that preamble is a part of Indian Constitution.

Q.2 What is the Nature of Indian Constitution

“The Nature of the Indian Constitution”

The Constitution is of two kinds.

1.Unitary

2.Federal‟

Unitary:- In a Unitary Constitutions the powers of the Government are centralized in one Government v.z. the States or Provines are Subordinates to the Centre.

Federal:- In Federal Constitution, there is a division of Powers between the federal and the State Government and both are independent in their own spheres.

The American Constitution is universally regarded as an example of the Federal Constitution. It establishes dual polity or dual forms of Govt, the federal and State Govts. The existence of Co- ordinate authorities independent of each other is the gist of the federal Principle.

Jennings:- The Indian Constitution is a federation with a strong centralized tendency.

Prof K.C. Wheare:- The Indian Constitution is quasi-federal

“Essentral characteristics of a federal Constitution

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

1.A Written Constitution :- For a federal Constitution it is Mandatory that there should be a written Constitution.

2.Supremacy of Constitutions:- For a federal Constitution there should be supremacy of the Constitution. At the time of the exercise of power by three organs of the Govt. i.e. legislative, executive and Judiciary, all functions are Subordinated and Controlled by the Constitution.

3.Distribution of Powers:- Federalism means the distribution of powers of the State among a Number of Co-ordinate bodies each originating in and controlled by the Constitution

4.Rigidity:- Rigidity is one of the Basic essential of a federal Constitution. It highly depends on the Process of amendment. The liberal the process of amendment the Negation of the federal Character and Vice Versa.

5.The Authority of Courts:- There should be an independent judiciary having authority on other organs. In a federal Constitution the courts (judiciary) has the final power to interpret the Constitution. Finally it should say that the judiciary is the Guardian of the Constitution.

Indian Prospective – Some Modification

1.Appointment of Governors – (Art 155-156) The Governors of the States are appointed by the President of India. The Governor is the Constitutional head of the State and act on the advise of the Council of Ministers of the states. In some special cases the Governor send the Bill to the Prior Consent of the President.

2.Parliament power to legislate in the National interest- (Art 249) If the Rajya Sabha passes a resolution by 2/3 Majority that it is Necessary in the National Interest to make a law an any subject defined in the State list, the parliament is empowered to legislate on the same.

3.Parliament Power to Form New States and alter boundaries of existing States – (Art 3) –

The existence or Non-existence of the States depends truly on the sweet will or pleasure of the

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Union Govt. The parliament of India may forms New States, it may increase or decrease the area of any State on it may alter the boundaries or Name of any State.

4. Emergency Provisions – Emergency is of three kinds-

1.National Emergency – Art 352

Caused by war or external aggressive or armed rebellion.

2.State Emergency – Art 356

Caused by failure of Constitutional Machinery in State

3.Financial Emergency – Art 360

The Parliament in Case of emergency (any type) is empowered to makelaw with respect to any Matter enumerated in State List.

Conclusion : Finally if can be said that the Indian Constitution is neither Purely federal Nor purely Unitral but a Unique Combination of Both aspects.

Q.3 Define the Salient features of the Indian Constitution.

1.The lengthiest Constitution in the world:- The Indian Constitution is the lengthiest and the Most detailed of all the Written Constitution of the world. While the American Constitution originally consisted of only 7 Articles, the Australian Constitution originally had 128 Art. The

Indian Constitution originally consisted of 395 Art, 22 parts, 8 Schedules.

But after the Constitution 92nd Amendment Act, 2003 the Indian Constitution Consists of 444 Art, 26 parts, 12 Schedules. 94th Amendment Act the Indian Constitution 449 Art 26 part, 12 Schedules.

(1)Modern Constitution

(2)Preamble

(3)Sovereign, Democratic, Republic, Socialist,

(4)Welfare State, secular State, Responsible Govt.

(5)Fundamental right.

2. Parliament form of Govt.- The Constitution of India establishes a Parliamentary form of Govt. both at the centre and states. The President is the executive head of the State. The real executive power is vested in the Council of Minister where head is the Prime Minister.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

3.Unique blend of rigidity and Flexibility:- A written constitutions is generally said to be rigid. But Indian Constitution though written is flexible because none then 100 Amendment has been proposed and Maximum has been incorporated.

4.Fundamental right:- Fundamental right are defined under part III of the Indian Constitution, and these can be claimed against the state under some reasonable restriction. No law or executive action infringing a fundamental right can be regarded valid, Art 32/226 defines the Machinery to protect the Fundamental right, Fundamental right are Note absolute rights.

5.Adult Suffrage:- All man and woman above 18 year [amended by the 61st Constitutional (Amendment) Act 1989] (21 years) of age has been given the right to elect representatives for the legislature [center + state]

6.A Independent Judiciary:- Unless there is remedy there is no right, for this purpose an independent and impartial Judiciary with a power of Judicial review has been established under the constitution of India. It protects the rights of Citizens as well as Non Citizens.

7.Single Citizenship:- Though there is dual polity i.e. center and states but it provides for a

single Citizenship for the whole of India. The citizen of India. The American Constitution provides for dual Citizenship.

8.Directive Principles of State Policy:- D.P.S.P. Art 36 to 51 is defined in part IV of the Indian Constitution set out the aims and objectives to be taken up by the states in the governance of the Country. These are not justifiable.

9.Fundamental Duties (Art 51-A):- A chapter IV A was added in Constitutions by 42th constitution (Amendment) Act 1976 by which 10 Fundamental duties were added. By 86thConstitutional (Amendment) Act 2002. 11th duty was added.

10.A Federation with strong centralizing tendency:- the Most remarkable feature of the Indian constitution is that being a federal Constitution if acquires a unitary character during the time of emergency, during the emergency union Parliament is empowered to legislate on any subjects. Mentioned in the state list. The Central Government is empowered to give direction to states as

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

to the Manner in which it should exercise its executive powers, this combination of federal and unitary system is unique feature of the Indian Constitution.

A Secular State:- A secular state has no religion of its own as recognized religion of State. All religion should enjoy the equal respect, Aurna Roy Case - SERVA DHARMA SAMBHAV - Meaning equal treatment and respect for all religions. Secularism is also subject

Q.4 Fundamental Duties

(Art 51-A)

It was added by the 42nd Amendment Act 1976, originally 10 duties was introduced for citizen and the 11th (K) was introduced there after.

(a)1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the national Anthem

(b)2. To Cherish and follow the noble ideals which inspired our National Struggle for freedom.

(c)3. To uphold and Protect the Sovereignty – Unity and integrity of India.

(d)4. To defend the Country and render National Service when called upon to do so.

(e)5. To Promote harmony and the spirit of common brotherhood amongst all the people of India. Transcending, religious, linguistic and regional or Sectional diversities : to renounce Practices derogatory to the dignity of woman.

(f)6. To value and presence the rich heritage of our composite culture.

(g)7. To protect and improve the Natural, environment, Including forests, lakes, rivers and wild life, to have compassion for living creatures.

(h)8. To develop the Scientific temper, humanism and the spirit of inquiry and reform.

(i)9. To safeguard public property and to abjure violence.

(j)10. To strive towards excellence in all sphere of individual and collective activity. So that the nation constantly rises to higher levels of Endeavour and achievement.

(k)Who is Parent or Guardian to Provide opportunities for education to his child or as the case be ward between the age of six and fourteen years.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Q.5 Discuss the scope of freedom of speech and expression under Constitution is the right absolute? If not, what restrictions are placed on it? Discuss the test of reasonableness of restriction refer to case law.

Ans. Right to freedom Article (19 – 22) defined in Part IIIrd of the Indian Constitution, and Art 19-22 defined the personal liberty and called the back bone of the fundamental right.

Article 19(i) defines six freedom

(i)Freedom of speech and expression

(ii)Freedom of Assembly

(iii)Freedom to from Association

(iv)Freedom of Movement

(v)Freedom to reside and to settle

Art 300 A (Amended by 44th Constitution Amendment 1978) (vi) Freedom of Profession, occupation, trade or business.

These six freedom are however not absolute, the restriction on these freedom are provided in clause 2 to 6. These restrictions should be reasonable

(i)Security of the State

(ii)Friendly relation with foreign states

(iii)Public order [1st Amendment Act 1951]

(iv)Decency and Morality

(v)Contempt of Court

(vi)Defamation

(vii)Incitement to an offence [1st Amendment Act 1951

(viii)Sovereignty and Integrity of India [16th Amendment Act 1963]

19(1) (a) Meaning of freedom of speech and expression

The freedom of speech and expression, Guarantee, U/A 19(1) (a) means

the right to speak and to express one‟s opinions by words of mouth. Writing, printing, pictures or in any other manner. It include publication also, which includes inherent freedom of press. The liberty of circulation is vested in liberty of publication.

Right to know :- the fundamental right principally Principal involved here is the people‟s right to know.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

In Prabhu Datt Vs. Union of India AIR 1982 – Supreme Court held that right to know news and information about the functioning of the Govt., is included in the freedom of Press

In Union of India Vs. Association for Democratic Reforms AIR 2002 – Supreme Court held that people have right to know about the candidate before voting. Thus, the law preventing the Election Commission from asking for a candidates wealth. Assets, liabilities education and other such information is invalid.

In Tata Press Ltd. Vs. M.T.N.L. (1995) the Supreme Court held that commercial speech (Advertisement) is a part of freedom of speech and expression U/A 19(1) (a)

In Union of India V. Naveen Jindal AIR 2004 Supreme Court 1559

The Court held that „Flying National Flag‟ is fundamental Right U/A 19(1) (a)

Freedom of Silence – Right not to speak

In Bijoe emmanual Vs. State of Kerala (1986)

In Om Prakash Vs. State of U.P. (2004) the Court held that Prohibition of eggs selling Municipal limits is reasonable restriction U/A 19(6)

Freedom of the Press - the freedom of press defined in the Indian Constitution U/A 19(1) (a)

In Indian Express news paper Vs. Union of India (1985) the Court observed the expression

“freedom of the Press” has not been used in Art 19.

Pre-censorship Invalid – In Ramesh Thapper Vs. State of Madras (1950)

In express Newspaper Vs. Union of India (1958) the Supreme Court held that a law which imposes Pre-censorship or curtails circulation or prevents newspaper from being started or require the Govt. to seek Govt aid in order to survive was violative of Art 19 (1) (a)

In Sakal Chand Papers Ltd. Vs. Union of India (1962)

Prior – Restraint on Publication – In R.Raja Gopal Vs. State of T.N (1994)

The Supreme Court held that the Govt. has no authority in law to impose a prior restraint upon publication of defamatory material against its officials.

Abuse of freedom of press – In M.P.Lohia v.State of W.B. & ORS AIR 2005 S. C. 790 In Union of India Vs. Naveen Jindal AIR 2010

The Supreme Court held that „Flying National Flag in Night‟ is a fundamental right of freedom of speech and expression.

Right to Information – Secretary General Supreme Court of India Vs. Subhash

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Chandra Agarwal AIR 2010 DEL

In S.Khushboo v. Kanniammal sons AIR 2010 S.C.3196 the Supreme Court held that freedom of speech and expression is not absolute.

Case

(1)State of Gujrat v. Mirzapur Moti Kureshi Kasab Jamat, AIR 2006 SC 212

(2)Union of India v. Association for Democratic Reforms AIR 2002 SC 2112

(3)Ajai Goswami v. Union of India AIR 2007 Sc 493

(4)Rajneesh Kapoor v. Union of India AIR 2007 SC 204

(5)Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat AIR 2008 SC 1892.

Q.6 What meaning has been given to life, „Personal Liberty‟ and Procedure established by law by the Supreme Court of India in the context of Art.21 of the Constitution? Discuss and refer to cases.

Ans. No person shall be deprived of his life or personal liberty except according to Procedure established by law.

In A.K.Gopalan V.State of Madras AIR 1950 the Court held that Art 21 guaranteed the right to life and personal liberty to citizen only against the arbitrary action of the executive and not from legislative action and further held that „Personal liberty in Art 21‟ Means nothing more than the liberty at the physical body i.e. freedom from arrest and detention without the authority of law.

In Kharak Singh V. state at U.P (1968)

In Maneka Gandhi v. Union at India AIR 1978 S.C 597. The Court has given the Widest Possible interpretation of Personal liberty. Thus Art 21 requires the following Conditions to be fulfilled before a Person is deprived of Personal liberty.

There must me a Valid law.

The law must provide a Procedure.

The Procedure must be (just, fair and Reasonable ) ensuring Natural Justice. The law must satisfy the Requirements of Art 14 & 19.

The Court overruled the A.K.Gopalan‟s decision and held that „life is not merely confined to Physical existence. But it includes within its ambit the right to live with Human dignity.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

In Confederation of Ex-Servicemen Association v. Union of India (2006) 8 SCC 399.

The S.C. held that the right to life defines not only physical existence but the “quality of life”.

Right to Travel abroad. Right to livelihood Right to Shelter

Right to Privacy

Right to Health & Medical Assistance. Right to die

Protection of Ecology and Environmental Pollution Right to education

Prisoner‟s Right

Right to free Legal Aid Right to speedy Trial Right Against Handcuffing

Right Against Delayed Execution. Right to food

Right to Marriage Right to Reputation.

Right to Travel Abroad – In Satwant Singh v. Assistant Passport officer. New Delhi

(1967) the S.C. further extended the scope of Art 21 and held that the Right to travel abroad was part of a persons „Personal liberty‟.

Right to livelihood – In D.K.Yadav v. J.M.A Industries (1993) the S.C. held that right to life includes the right to livelihood.

Right to Shelter – In Chameli Singh v. State of U.P.(1996) the Court held that „right to shelter‟ is a fundamental Right U/A 21 of the Indian Constitution.

Right to Privacy – In R.Raja Gopal v. State of T.N. (1994) the S.C. held that Right to Privacy is fundamental Right in Art 21.

In People‟s Union for Civil Liberties v – Union of India (1997) known as „Telephone

Tapping‟, the S.C. held that telephone tapping is a serious invasion of an individual‟s right to

Privacy which is part of the right to life and personal liberty.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Right to Die – In State of Maharashtra v. Maruty Sripati Dubal (1987) the Court held that right to life includes right to die and struck down S-309 of I.P.C. (overruled later on)

In P.Rathiram v. Union of India 1994- The Court held that right to „live‟ under Art 21 includes right „Not to live‟ Gian Kour v. State of Punjab 1996 – “The Constitutional Bench of Supreme Court held that „right to life‟ Under Artcle 21 does not include „right to die”.

Right to Education – In Mohini Jain v. State of Karnataka AIR 1992 also known as

“Captivation” fee case”the S.C. held that Right to education is a fundamental Right U/A 21.

In Unni Krishnan v. State of A.P(1993) the Court Partly upheld the Mohini jain decision and held that right to education is fundamental Right U/A 21 as it directly flows from right to life and partly overruled this case and held that the right to free education is available only to children, Untill they complete the age of 14 year.

“86th ” Indian Constitutional (Amendment) Act 2002”.

Art 21-A was added by this Amendment which define – The State shall provide free and compulsory education to all children of the age 6 to 14 years “The Right of children to free and compulsory education Act 2009”.

“Protection Against illegal and Custodial Death” the Court held that if the Prisoner died due to beating by Police Officer, his family is entitled to compensation.

In Bhodhisathawa Gautam v. Subhra Chakravati AIR (1996) 1 SCC 490 – The S.C. awarded an interim compensation of Rs.1000 per month to the victim of the rape until her charges of rape are decided by the trial Court. Because violation of the fundamental right harms the right to life contained in Art 21.

In Vishaka v. State of Rajasthan AIR 1997 – The Court held that to Prevent sexual harassment of working women in places of their work until legislature enacts a legislation in this regard certain guideline were issue for the employer/

Right to Marriage – In Lata Singh v. State of U.P.& others AIR 2006 S.C. 2522

Right to Reputation – The Court held that Art 21 includes right to Protection of Reputation thus it can be protected under Art 21.

Case:

(1) In M.C. Mehta v. Union of India, AIR 2004 SC 4016

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

(2)In a landmark judgement in Intellectual forum Tirupathi v. State at Andhra Pradesh AIR 2006 SC 1350

(3)In Moses Wilson V. Kasturba AIR 2008 SC 379

(4)In a significant decision in R.D.Upadhyay v. State of Andhra Pradesh AIR 2006 SC 1946.

(5)In Swapan Kumar Saha v. South Paint Montessary High School and others AIR 2008 (NOC) 236 (Gau)

Q.7 What is the Procedure of the Impeachment of the President and discuss the his Various Powers.

Ans. The President. Art 52 says that there shall be a President of India. Art 53 and the executive Power of the Union shall be Vested in the President (Art 53) and shall be exercised by him either directly or through officers Subordinate to him in accordance with this Constitution.

The Defence forces of Union shall be Vested in the President or and under his Command.

Art 54 Election of President- The President shall be elected by the ministers also of an electoral Collage consisting of-

(a)The elected members of both houses of Parliament.

(b)The elected members of the legislative Assemblies of the State.

State include the Union Territories also Qualification for election as President-Art 58.says that the- He is a Citizen of India, and complete the Age of 35 year and is qualified for election as a member of the House of the People.

Art 60. Both by the President- The President will take both by Chief justice of India, or in his absence the senior judge of the Supreme Court.

Art 61 Procedure for Impeachment of the President- The President can be removed from his office by a Process of Impeachment for the violation of the Constitution.

The impeachment charge against him may be initiated by either house of Parliament. The charge must come in the form of a Proposal Contained in a resolution signed by not less than Y4th of the total number of the Parliament members at the House and moved after giving at least 14 days advanced notice, Such a revolution must be passed by a majority of not less than 2/3rd of the total membership of the House. The charge is then investigated by the other House.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

The President has the right to appear and to be represented at such investigation. If the other House after the investigation passes the charge is Proved, such resolution shall house the effect of revolving the President from his office from the date as which resolution is so passed.

The Powers of the President of India

1. Executive Power- The Executive powers of the Union shall be Vested in the President of India and shall be exercised by him directly or through the officers subordinate to him in accordance with the Constitution. The Supreme Command of the Defence forces of the Union be Vested in the President.

2. Power to make appointments- The President chooses the Prime Minister and other Ministers on the Advice of the Prime Minister. He will also have Power to appoint other high officials of the State like.

i)Judges of the Supreme Court and High court (Art 124, 127)

ii)The Attorney General of India (Art 76)

iii)Controller and Auditor General of India (Art 148)

iv)Governors of States (Art 155)

v)Finance Commission (Art 280)

vi)Chairman and Members of Public Service Commission of the Union (Art 316) 3. Diplomatic Powers –As the head of the State, the President sends and receives Ambassadors and other diplomatic representatives. All treaties and international agreements are negotiated and conduct in the name of the President though subject to

ratification by Parliament.

4. Military powers – He is the Supreme Commander of the Defence forces of the country. He has power to declare war and peace. The Parliament is empowered to regulate or control. The exercise of the military powers by the president.

5. Legislative Powers – Every Bill passed by both the houses of Parliament is to be sent to the President for his Assent. If at any time except when both the Houses of Parliament are in session, the President is satisfied that the circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstance

appear to him to require.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

6. Ordinance Making Power (Art 123) - If any time when both house at Parliament are not in session, he may issue ordinance having same force of as an Act of Parliament. Such ordinance must be laid before both houses of Parliament and shall have effect to six weeks of unless Parliament by disapproved by resolution.

An ordinance Promulgated under Art 123 is a law having same force and effect as an Act at Parliament. The ordinance passed by the President cannot be inquired into challenged in Courts. It can not violate fundamental rights.

In A.K.Roy V.Union of India AIR 1982 S.C.710.

The Supreme Court by majority 4 : 1 held that the national Security ordinance was valid and not violative of Art 14. The ordinance passed by President U/A 123 stand on the same footing as laws passed by legislature.

In D.C. Vadhwa V. State of Bihar (1987) S.C.C.378

7. Power to grant Pardons etc – The President shall have the power to grant Pardons, reprieves, respites or remission of punishments or to suspend, remit or commute the sentences of any person convicted of offences (a) in all cases where the Punishment of sentences is by a Court martial (b) in all cases where the punishment of sentences for an offence against any law relating to matter to which the executive power of the union extends (c) in all cases where the sentence is a sentences of death.

8. Emergency Powers – If the President is satisfied in case of either one of the three types of emergency (1) National Emergency Art 352 (2) State Emergency Art 356. (3) Finance Emergency Art 360. The President may during the period of emergency suspend the right to move to courts for the enforcement of fundamental right (except Art 20 & Art 21 ).

The President may direct the reduction of salaries of any class of State officials. The

judges of the Supreme Court and High Court. He may require all State money Bills to be reserved for consideration of the President.

After 42nd Constitutional (Amendment) Act 1976

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

It has amended 74th Article which says “There shall be a Council of Minister with the

Prime Minister as the Head to aid and advise the President who shall in exercises of his function act in accordance with such advice.

Q.8 Discuss the special procedure relating to introduction and passing of money bill.

Ans. Procedure to pass an ordinary Bill – Art 107

Ordinary bill, i.e. bill other than money bill and financial bills may originate in either house of the Parliament. The Bill must be passed by both the houses of Parliament and than only it can be sent for President‟s assent. It becomes a law when it is assented to by the President‟s assent. It becomes a law when it is assented to by the President. Each House has laid down a procedure for the passage of a bill. According to the procedure of a House of a Bill has to pass through three stages commonly known as readings a follows.

(1)First reading – At first stage the Bill is introduced in the house. At this stage no discussion takes place unless it is disputed. The second is the consideration stage when the bill is discussed clause by clause.

(2)Second Reading – At this stage amendments may be moved. At this stage the member in charge of the Bill may make one of the following motions in regards to the bill, v-z.

That it be taken into consideration and referred to select committee or than referred to a joint committee of the houses. That it be circulated for the purpose of eliciting public opinion.

(3)Third Reading – At the third reading stage a brief general discussion of the Bill takes place and the Bill is finally passed. When the bill is passed by one house it is sent to the other house. Where a similar procedure is repeated if there is any disagreement between the houses over any bill, the bill cannot be deemed to have been passed. If the two houses do not agree a deadlock is created. To resolve such a deadlock the constitution provides the method of joint sitting of the house.

Joint session of house – Art 108 when Bill passed by one house and sent to other house – is rejected by the house. The house disagrees as the amendment to be made in the bill. The other house does not pass the bill and more than six months have passed the President may Summon a joint session of both the houses.

President‟s Assent - No Bill can become law without the assent of the President even if it has been passed by both house of Parliament.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Definition of Money Bill – Art 110 (1) defines that a money bill is a bill which contains only provisions with respect to all or any of the following matters.

(1)The imposition, abolition, Remission, Alteration or regulation of any tax. The Regulation of the borrowing of money or the giving of any guarantee by the Government of India.

(2)The custody of the consolidated fund or the contingency fund the payment or withdrawal of money from such fund. The appropriation of money out of the consolidated fund of India.

(3)The declaring of any expenditure to be charged on the consolidated fund of India.

(4)The receipt of money or account of the consolidated fund of India as the Public account of India, or the custody as issue of such Money as the audit of the accounts of the union as of a State.

Special Procedure of passing a Money Bill- Art 109

1.A money Bill can only be introduced in the Lok Sabha. It cannot be introduced in Rajya Sabha. A money Bill can only be introduced with the recommendation of the President. However, No recommendation of the President is necessary for the moving of an amendment making provision for the reduction or abolition of any tax (Art 117)

2.After a Money Bill has been passed by the Lok Sabha. It is sent to the Rajya Sabha for its recommendations. The Rajya Sabha must return the bill to the Lok Sabha within 14 days from the receipt of the Bill with its recommendation. The Lok Sabha may either accept or reject all or any of the recommendation of the Rajya Sabha.

3.If the Lok Sabha accepts any of the recommendation by the Lok Sabha, the Money Bill shall be deemed to have been passed by both houses with the amendments by the Rajya Sabha and accepted by the Lok Sabha.

4.If a Money Bill passed by the Lok Sabha and sent to the Rajya Sabha for its recommendations is not returned to the Lok Sabha within 14 days, the bill shall be deemed to have been passed by both Houses at the expiration of the said (14 days) period in the form in which it was passed by the Lok Sabha. Thus the Rajya Sabha can at the most detain a Money Bill for 14 days only (Art 109)

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

5.If the Lok Sabha rejects all the recommendation of the Rajya Sabha, the Bill shall be deemed to have been passed by both the House in the form in which it was passed by the Lok Sabha. Then it will be presented to the President for his assent.

The Lok Sabha may accept or reject the amendments suggested y the Rajya Sabha, it has thus the final say with regard to the passing of a Money Bill.

Assent of the President – When a Money Bill is Presented to the President he may either give his assent or refuse his assent. Since the Power to veto a Bill exercised by the President only on the advice of the cabinet the President will be bound to give his assent to a money Bill. Some writers are of the view that the President is not bound to give his assent to a many Bill. Their view, it is submitted, is not correct. A money Bill introduced in the Lok Sabha only on the recommendation of the President, it would indeed be unthinkable that the Government should wish to advise the President to veto the Money Bill for the

Passage of which it had been responsible,

Q.9 Discuss the various emergency powers of the President and also indicate their effects.

Ans. The Constitution of India provides of three types of emergency.

(1)National Emergency – due to war, external aggression or armed rebellion (Art 352)

(2)State Emergency – due to the failure of constitutional machinery in States (Art 356)

(3)Financial Emergency – (Art 360)

(1)National Emergency – Art.352 provides that of the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened, either by war or external aggression or armed rebellion (Inserted by the 44th Constitutional (Amendment) Act 1978 he may make a proclamation of emergency in respect of the whole of India or any part of India as may be specified in the proclamation. The proclamation of Emergency made under clause (1) may be varied or revoked by the President by a subsequent proclamation (Cl.(2))

A Proclamation of Emergency can be made even before the actual occurrence of event contemplated in Art.352 have taken place if the President is satisfied that there is imminent danger of war or external aggression or armed rebellion. Thus actual occurrence of the

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

events mentioned in Art.352 is not essential. An imminent danger of war or external aggression or armed rebellion is enough for the Proclamation of emergency.

“Whether the satisfaction of the President is his personal satisfaction or of Cabinet”?

Minerva Mills Ltd. vs. Union of India. AIR 1980 S.C.1789

(refer book) Dr. J.N.Pandey

Effects of Proclamation of National Emergency – The following are the consequences of the Proclamation of national Emergency.

1.Extension of centre‟s Executive Power. (Art. 353 (a)

2.Parliament is empowered to legislate on State Subject. (Art 353 (b)

3.Centre is empowered to alter distribution of revenue between the union and the State (Art 354)

4.Extension of life of Lok Sabha (Art 83 (2)

5.Suspension of fundamental rights guaranteed by Art.19 (Art 358)

6.suspension of the enforcement of fundamental rights –(Art 359

2.Failure of Constitutional Machinery in State – Art 356 says that if the President, on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the state cannot be carried on in accordance with the provisions of the constitution, he may issue a proclamation by which he -

(i)May assume to himself all or any of the powers vested in or exercisable by the Governor to any body or authority in the State

(ii)May declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

(iii)May make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of Proclamation.

Effect of Proclamation of failure of Constitutional Machinery

When the Proclamation of Emergency is made under Art 356 (1), the Powers of the State Legislature are to be exercised by Parliament, Parliament can confer on the President the power to make laws for the states. Parliament may also authorise the

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

 

President to delegate. Such powers to any other authority as specified by himself.

 

(Art.357) (1).(a) If the Lok Sabha is not in session the President may authorise

 

expenditure from the consolidated fund of State. Pending sanction of such expenditure

 

by parliament.

 

 

 

 

44th Amendment, 1978 amended Art 356 and substitutes the word „six months‟

 

for the words „one year‟ as it existed originally. Thus, it restores the position as it stood

 

before the 42nd Amendment.

 

 

 

 

48th amendment, 1984, amended Cl.(5) of Art. 356......,. refer book

 

 

 

 

By (Constitution 64th Amendment) Act, 1990 Art.356

 

 

 

 

(refer book)

 

 

 

(3)

Financial Emergency – Art 360 Provides that if the President is satisfied that a

 

 

situation has arisen whereby the financial stability or credit of India or part of the

 

 

territory there of is threatened, he may be a proclamation make a declaration to that

 

effect.

 

 

 

 

The 44th Amendment makes Art. 360 self-contained. It provides that the

 

Proclamation of financial emergency shall Cease to be in operation of the expiry of

 

two months unless it has been approved by both houses of Parliament. Such a

 

proclamation may be revoked or varied by the President by a subsequent

 

 

 

proclamation. But 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 unless before the expiry of 30 days a resolution

 

approving

 

proclamation is passed by the Lok Sabha.

 

 

 

 

Effects of the Financial Emergency –

 

 

 

 

During the period when such a proclamation is in operation, the executive authority

 

of the Union shall extend to the giving of the „direction‟ to any state to observe such

 

canons of financial propriety as may be specified in the directions and be deemed

 

necessary by the President for maintaining financial stability and the credit of the State.

 

Any such direction may include a provision for the reduction of salaries and

allowances

 

of all or any class of serving in a State, including the judges of the

Supreme Court and

 

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High Courts. 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

the Legislature of the State. The

duration of 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

months period.

 

Case

(i)In Remeshwar Prasad v. Union of India AIR (2006) 2 SCC 1

(ii)In a landmark judgement in SR., Bommai v. Union of India AIR (1994) 3 SCC 1

(iii)In state of Rajasthan v. Union of India AIR 1977 SC 1361

(iv)State of Rajasthan v. Union of India AIR 1977 SC 1361

Q.10 “The harmony and balance between fundamental Rights and Directive Principle of State Policy is an essential feature of the basic structure of the Constitution” discuss.

Ans. The aim of Fundamental Rights is that certain elementary rights such as right to life, liberty, freedom of speech and freedom of faith and so on should be regarded as inviolable under all circumstances and that the shifting majority in legislatures of the country should not have a free hand in interfering with fundamental rights.

Fundamental right is called the Magna Carta of India. Fundamental right are defined in 27 Art. Under Part IIIrd of the Constitution.

1.General – Arts. 12 and 13 which respectively define the State and law

2.Rights to Equality – Arts 14 to 18.

(a)Equality before law, Art 14.

(b)Prohibition of discrimination on the grounds of religion race, caste, sex or place of Birth Art 15.

(c)Equality of opportunity in matters of public employment, Art 16.

(d)Abolition of untouchability Art 17

(e)Abolition of titles, Art 18.

3.Rights to freedom – Art 19 to 22

A. Right to freedom – Art 19 provides the following 8 freedoms –

(a) Right to freedom of speech and expression.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

(b)Right to assemble peaceably and without arms,

(c)Right to form associations or unions.

(d)Right to move freely throughout the territory of India.

(e)Right to reside and settle in any part of the territory of India.

(f)Right to acquire, hold and dispose of property (Now this right is made only an ordinary right under Art 300 A of Constitution.

(g)Right to practice any profession or to carry on any occupation trade or business.

B.Protection in respect of conviction for offences Art 20

C.Protection of life and personal liberty Art 21.

D.Protection against arrest and detention in certain cases – Art 22.

4.Rights Against Exploitation – Art 23 and 24

(A)Prohibition of traffic in human beings and forced labour.

(B)Prohibition of employment of children in factories

5.Rights to freedom of Religion – Art 25 to 28

(A)Freedom of conscience and free profession, practice and propagation of religion Art 25.

(B)Freedom to manage religious affairs Art 26.

(C)Freedom as to payment of taxes for promotion of any particular religion Art 27.

(D)Freedom as to attendance at religious instructions or religious worship in certain educational Institutions Art 28.

(6) Cultural and Educational Rights -

(A)Protection of interest of Minorities Art 29

(B)Right of Minorities to establish and administer educational institutions Art 30.

(7)Right of Property – It is no longer a fundamental Right but an ordinary constitutional right provided U/A 300 A

(8)Right to constitutional remedies – Art, 32 to 35.

- Directive Principles of State Policy – The D.P.S.P. contained in Part IV of the Constitution set out aims and objective to be taken up by the States in the governance of the country. This feature of the Constitution is borrowed from the Constitution can Ireland. The idea of a welfare State established by our constitution can only be achieved if the States try to implement them with a high sense of moral duty. The main object in enacting the directive principles appears is to set standard of achievement

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

before the legislature and the executive, the local and other authorities, by which their success or failure can be judge.

(i)Directive for social order based on justice – Art 38(1) requires the State to try and promote the welfare of the people by securing a social order in which every one is assured social, economic and political justice.

(ii)Directives in the nature of non-justifiable right of every citizen –

(i)right to adequate means of livelihood Art 39 (a),

(ii)right of both sexes to equal pay for equal work Art 39 (b)

(iii)Right against economic exploitation. Art 39 (e)

(iv)Equitable justice and free legal aid, Art 39 (A)

(v)Right of work. Art 41

(iii)Directives in shaping the policy of the State -

(i)To establish economic democracy and justice by securing certain economic rights.

(ii)To secure a uniform civil code for the Citizen (Art 44)

(iii)To provide consumption

(iv)To prohibit consumption of liquors and intoxicating druge except for medical purposes. (Art 47)

(v)To develop cottage industries. (Art 43)

(VI) Participation of workers in management of industries, (Art 43A) (VII) To organize agriculture and animal husbandry on modern lines.

(VIII) Protection and improvement of environment and safeguarding of forests and wild life, (art 48A)

(IX) To organize village Panchayats as units of self-government (Art. 40)

(X) To protect and maintain places of historic, and artistic interest. (Art 49) (XI) To separate judiciary from executive (Art 50)

(XII) To promote with special care the educational and economic interests of the weaker section of the People. (Art. 51)

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Relation between fundamental rights & D.P.S.P.

D.P.S.P contained in Part IVth of the Constitution. These are defined in Art 36 to 51 set out the aims and objectives to be taken up by the State in the Governance of the country. The D.P.S.P. is borrowed from the Constitution of Ireland. The D.P.S.P. are not justifiable.

Fundamental Rights are contained in Part IIIrd of the Constitution. These are defined in Art 12 to 35. These rights are provided for to every person of India and it can be enforced by the Court.

In rekerala education Bill 1958. The Supreme Court observed that the Court should use the Principle of harmonious construction and should given effect to both.

In Kesvanand Bharti v. State of Kerala AIR 1973. The Supreme Court held that the fundamental right & D.P.S.P. aim is the some goal of bringing about a social revaluation and establishment of a welfare state and they can be interpreted and applied together.

In Sanjeev coke manufacturing co. v. Bharat cooking call Ltd. 1983.

In Unni Krishnan v. State of A.P. 1993. The court held that Fundamental Right & D.P.S.P. are Supplementary and complementary to each other.

Q.11 Discuss the freedom of trade, commerce and intercourse as provided under the Indian Constitution.

Ans. Meaning of trade, Commerce and intercourse –

The word „trade‟ means „buying‟ or „selling‟ of goods while the term „Commerce‟ includes all forms of transportation such as by land, air or water. The term „intercourse‟ means movement of goods from one place to another place. The words „trade commerce and intercourse covers all kinds of activities which are likely to come under the nature of commerce.

It is to be noted that Art.19 (1) (g) also guarantees to citizens the right to practice any profession or carry on any trade, business, etc. But while Art, 19 (1) (g) confers a fundamental right on citizens to carry on trade, business etc. Art.301 confers only a statutory right. The right under Art. 19 (1) (g) can only be claimed by citizens, but the right under Art.301 can be claimed by any one.

The word „free in Art.301 – does not mean freedom from Laws or regulations. There is a clear distinction between laws interfering with freedom to carry out the activities constituting

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

trade and law imposing rules of proper conduct or other restraints for the due

and orderly

manner of carrying out the activities. The distinction is known as regulations.

 

The word „regulation‟ has no fixed connotation. Its meaning differs according to the nature of the thing which it is applied. A purely regulatory and compensatory law cannot be regarded as violative of the freedom of trade and commerce. Such laws are intended merely to regulate trade and commerce they tend, to facilitate, and not restrict or restrain freedom or trade. Thus, such measures as traffic regulations, licensing of vehicles,

charging for the maintenance of roads, marketing and health regulations, price control, economic and social planning prescribing minimum wages are purely regulatory

measures., than a law which levies a tax or toll for the use of a road or bridge is not a barrier or burden on a trade but in reality helps the free-flow of trade by enabling the provision of a mare convenient and less expensive route. Such compensatory taxes are no hindrance to any such freedom of trade so long as they are within reasonable limits, if the amount of such taxes are unduly high it certainly would hamper trade.

In this connection the Court has pointed out that the distinction between „freedom‟ in Art 301 and „restriction in Art. 302 and 304 must be kept in mind, and that which, in reality facilitates trade cannot be a restriction. While that which actually hampers trade will be a restriction.

“The Majority judgement in the Atiabari Tea Co‟s Case read with a majority judgement in the Automobile‟s case lead to the following principles relating of

Art.301

(1)Art.301 assures freedom of inter-State as well as intra-State trade, Commerce and intercourse.

(2)Trade, Commerce and intercourse have the widest connotation and take in movement of goods and persons.

(3)The freedom is not only from laws enacted in the exercise of the powers conferred by the legislative entries relating to trade and commerce or production, supply and distribution of goods, but also to all laws including tax laws.

(4)only those laws whose direct and immediate effect to inhibit or restrict freedom of trade or commerce will come with the mischief of Art.301.

(5)Laws which are merely regulatory or which impose purely compensatory taxes, and hence

intended to facilitate freedom of trade, are outside the scope Art. 301.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Restrictions on Trade and Commerce – Art 301 is subject to the restrictions imposed under Art. 302 to 305.

(1)Parliament‟s Power to regulate trade and commerce in the Public interest – Art 302 authorizes Parliament to impose such restrictions on the freedom of trade, commerce or inter course between one State and another or within any part of the territory of India as may be required in the public interest.

(2)State‟s power to regulate trade and commerce – Art 304 (a) empowers the State to impose any tax on goods imported from other State if similar goods in the State are subject to similar tax so as not to discriminate between goods so imported and goods manufactured or produced in the State.

(3)Saving of existing laws – Art 305 saves existing laws and laws providing for State monopolies in so far as the President may by order otherwise direct. In Saghir Ahmad v. State of U.P. AIR 1964 SC 728. The Supreme Court raised the question whether an Act providing for State monopoly in a particular trade or business conflicts with the freedom of trade and commerce, guaranteed by Art. 301, but left the question undecided. Art 19 was amended by the Constitution (first Amendment) Act in order to take out such State monopolies out of the purview of Art. 19 (1)(g). But no corresponding provision was added to Art 305.

It appears from the judgement of the Supreme Court that in spite of such an amendment a law introducing such State monopoly might have to be justified before the courts as being „in the public interest‟ under Art, 3d or as amounting to a „reasonable‟ under Art.306 (b) of the Constitution.

But the Constitution 4th Amendment now makes existing laws and future laws providing for State monopoly in trade immune from attack on the ground of infringement of Art, 301 and 303.

Refer Case-

Automobile Transport v. State of Rajasthan AIR 1962 S.C. 1406

G.K. Krishnan v. State of T.N AIR 1975 SC 583

Automobile Case, AIR 1962 SC 1406

State of Kerala v. Mother Provincial, AIR 1970 Sc 2079

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

G.K. Krishna v. State of Tamil Nadu AIR 1975 SC 583

State of Tamil Nadu v. M/s. Sanjeeth Trading Co. AIR 1993 S.C. 237

M/s B.R. Enterprises v. State of U.P. AIR 1999 S.C. 1867

Q.12 What do you mean by “equality before law” or the “equal protection of the Laws” explain with the help of leading cases.

Ans. Right of Equality – Art 14 to 18 of the Indian Constitution guarantee the right to equality to every citizen of India, Art 14 provides the general Principles of equality before the law and prohibits unreasonable discrimination between persons. Art 14 contains the idea of equality expressed in the preamble.

Art.14 – says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Art 14 uses two expressions

(1)“Equality before the law

(2)Equal Protection of the laws

(1)Equality before law – The concept of equality does not mean absolute equality among human beings which is physically no possible to achieve. It is a concept implying absence of any special privilege by reason of birth. Creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land.

Dr.Jennings- says that “Equality before the law” means that among equals the law should be quall and should be equally administered, that like should be treated alike, the right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be the same for all citizens wealth, social status or Political influence.”

Rule of law – The guarantee of „equality before the law‟ is an aspect of what Dicey Calls the „rule of law‟ in England. It means that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts.

“Dicey the Rule of Law has three distinct meaning “

(1)Supremacy of the law

(2)Equality before the flaw

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

(3)The Constitution is the result of the ordinary law of the land.

(2)Equal Protection of the Laws – The guarantee of equal protection of laws is similar to one Embodied in the 14th Amendment to the American Constitution. This has ben interpreted to mean subjection to equal law, applying to all in the same circumstances. It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the law equal law should be applied to all in the same situation and there should be no discrimination between on person and another.

The words „any person‟ in Art 14 of the constitution denotes that the guarantee of the equal protection of laws is available to any person which includes any company or association or body of individuals. The protection of Art 14 extends to both citizens and non-citizens and to natural persons as well as legal persons. The equality before the law is guaranteed to all without regard to race, colour or nationality. Corporations being juristic persons are also entitled to the benefit of Art 14.

Test of Reasonable classification – Art 14 class legislation, it does not forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be arbitrary, artificial or evasive”. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature, classification to be reasonable must fulfil the following two conditions –

(1)the classification must be founded on an „intelligible differentia‟ which distinguishes persons or things that are grouped together from others left out of the group.

(2)the differentia must have a rational relation to the object sought to be achieved by the Act (refer in this case )

-K.Thimmappa v. Chairman Central Board of Directors SBI : AIR 2001 S.C.467

-Basis of Classification – (refer case) Ram Krishna Dalmia vs. J. Tandulkar AIR

1957.

New Concept of Equality : Protection against arbitrariness

In E.P.Royappa v. State of Tamil Nadu AIR 1974 S.C. 555 the new concept of equality in the following words – “Equality is a dynamic concept with many aspects and

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

dimensions and it cannot be „cribbed, Cabined and confined” Within traditional and doctrinaire limits from a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art.14.

Menaka Gandhi v. Union of India 1978 S.C. 597 R.D.Shetty v. Airport Authority, AIR 1979 SC 1628. D.S.Nakara v. Union of India AIR 1983 SC 130 Mithu v. State of Punjab AIR 1983 SC 473

Exceptions to the equality before law- Art 361 of the Constitution permits the following exceptions to this rule –

(1)The President or the Governor of a State shall not be answerable to any court for the court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

(2)No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.

(3)No Civil Proceeding in which relief is claimed against the President or the Governor of a state shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity. Whether before or after he entered upon his office as President or Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be.

(i)Impeachment Proceeding against the President

(ii)Suits or other appropriate Proceeding against the Government of India or the Government of a State.

Case

(i)Chiranjit Lal vs. Union of India AIR 1961

(ii)J & K State vs. Bakshi Gulam Mohd. AIR 1967

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

(iii)Danial Latifi v. Union of India AIR 2001 S.C. 3262

(iv)Javed v.. State of Haryana AIR 2003 S.C. 3057

Q.13 What Parliamentary Privileges are prescribed under Indian Constitution?

Ans. Parliamentary Privileges – The Constitutional provisions regarding privileges of the State legislature and Parliament are identical. While Art 105 deals with the privileges of Parliament whereas Art 194 deals with privileges of State Legislatures. The Constitution expressly mentions two privileges –

(i)freedom of speech in the Legislature and

(ii)right of publication of its proceedings

(i)Freedom of speech – Art 105 says 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.” This Art. gives absolute immunity from courts for anything said within the four walls of the House during the course of proceedings of the House or its committees. So what is protected is the speech within the House. Outside the House a member of House is as good as any other citizen 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 will be held liable for the prosecution under S.500 I.P.C.

It must, however, be noted that Cl. (1) of Art. 105 is expressly made “Subject to the provisions of this Constitution and to the rules and Standing Orders regulating the

procedure of Parliament.” One of such a constitutional restriction on the freedom of speech is imposed by Art.121 which 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, except when a motion to present an address to th. President for his removal is under consideration of the House. The freedom of speech is also subject to the rules of procedure of a House made under Art. 203. Under Rules 349 to 356 of the Lok Sabha,, use of unparliamentary language or unparliamentary conduct of a member is prohibited.

(ii)Right of Publication of its Proceedings – Art.105 (2) expressly provides that no person is to be liable to any proceedings in any court in respect of publication of any report, paper,

votes or proceedings by or under the authority of a House. The protection under this Article

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

does not extend to publication make by a private person without the authority of a House. In Surendra Vs. Nebakrishna, A.I.R. 1958, an editor of a newspaper was held guilty of committing Contempt of Court for publishing a statement made in the House amounting to contempt of the High Court without the authority of the House. Accordingly, the Parliamentary proceedings (Protection of a Publication Act.1956) was passed which provided that no person shall be liable to any proceding of civil or criminal in any court in respect of the publication of substantially true 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 – Originally, Art 105 (3) provided that the privileges of the Houses of parliament and its members were to be those which were enjoyed by the members of

the House of the Commons in England on January 26, 1950 until defined by Parliament by law. The 44th Amendment Act, 1978, has amended this Article and has omitted completely any reference to the House of Commons in future. This amendment retained all the existing privileges which were enjoyed by the members of Legislatures in India. As regards new privileges it provides that they can be defined by a parliamentary law. A similar change has been made in Cl.(3) of Art. 194 which relates to privileges of the State Legislatures. This means that the privileges of each House of Parliament and State Legislatures will now be the same as existed immediately before the coming into force of the 44th amendment. New privileges can be defined by law made by Parliament. At present these other privileges are

–

1.Freedom from Arrest – This privilege is well established in England. A member of Parliament cannot be arrested or imprisoned on a civil proceeding within a period of 40 days before and 40 days after the session of Parliament. If a member is arrested within this period he should be released so that he might be free to attend Parliament. This privilege is available against civil arrest and does not extend to arrest or imprisonment on a criminal charge, or for contempt of court or to preventive detention. If a member of a House commits a crime he will be arrested like an ordinary person. In India also, it has been held that the privileges does not extend to arrest or imprisonment on a criminal charge or for detention under Preventive Detention Act. Lok Sabha Rules, 387,

Smt. Indira Gandhi Vs. Raj Narain, A.I.R.1975 S.C.2299.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

2.Right to exclude strangers from its proceedings and hold secret sessions – This right has been used by the House of Parliament in England to go into secret sessions to discuss some important matters. The Houses of Parliament in India enjoy a similar power. However, in modern times secret sessions are held only on the exceptional occasions because the voters must be kept informed of what their representatives are doing in the Legislature.

3.Right to prohibit to publication of its Reports and Proceedings – In England, the House of Commons has the right to prohibit the publication of its report, debates or other proceedings. In the famous Searchlight Case, A.I.R 1959 S.C.395, the question was whether the publication by a newspaper of those parts of the speech of a member in the House which were ordered to be expunged by the Speaker constituted breach of privilege of the House. The Supreme Court held that the publication of expunged portion of speech constituted a breach of the privilege of the House.

4.Right to regulate Internal Proceedings – The House has an exclusive right to regulate its own internal proceedings and to adjudicate upon such matters. Art 122 says that the validity of the proceedings in Parliament cannot be called in question in a court of law on the ground of any alleged irregularity of procedure. In S.M.Sharma Vs. Sri Krishna Sinha, A.I.R. 1959 S.C.395, the Supreme Court held 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.”

5.Right to punish Members or Outsiders for contempt – Each House has power to punish its member for “contempt or breach of privilege”. A member may be suspended or expelled from the House, or may be sentenced to jail. The effect of expulsion of a member from the House is that his seat becomes vacant. Expulsion, however, does not disqualify him from contesting elections for this same House. In 1977 the Lok Sabha created a history by expelling the former Prime Minister Mrs. Indira Gandhi from its membership and sentencing her to jail till the House was (which ended a week later) prorogued for committing a contempt of Parliament while she was Prime Minister. Also committed to jail were her former additional private secretary Mr. R.K.Dhawan and the former Director of the C.B.I. Mr. D.Sen.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Q.14 Define the Amendment of the Constitution. Art. 368.

Ans. (1) Amendment by Simple Majority

(2)Amendment by Special Majority

(3)By Special Majority and Ratification by States

Procedure for Amendment – A Bill to amend the Constitution may be introduced in either House of Parliament.. It must be passed by each House by a majority of the total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended. The Constitution (24th Amendment) Act, 1971. But a Bill which seeks to amend the Provisions mentioned in Art. 368 requires in addition to the Special Majority mentioned above the ratification by the ½ of the States.

Amendment of fundamental rights – The question whether fundamental rights can be amended under Article 368 come for consideration of the Supreme Court in Sankari

Prasad v.Union of India AIR 1951 S.C.455.In that case the validity of the Constitution (1st Amendment) Act, 1951 The Amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III which fill within the Prohibition of

Article 13 (2) and hence was void. It was argued that the „State‟ in Article 12 includes Parliament and the word „Law‟ in Article 13 (2). Therefore must include constitution amendment. The Supreme Court however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article

368, and that the word „Law‟ in Article 13(8) includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power . Therefore, a constitutional amendment will be valid event if it abridges or takes any of the fundamental rights.

In Sajjan Singh v.. State of Rajasthan AIR 1965 S.C.845. The validity of the constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in Sankari Prasad‟s case and held that the words “Amendment of the Constitution” means amendment of all the provisions of the constitution.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

In Golak Nath v. State of Punjab AIR 1971 S.C.1643

The validity of the Constitution (17th

Amendment) Act, 1964, which inserted Certain State

Acts in Ninth Schedule was again

challenged. The Supreme Court by a majority of 6 to

5 prospectively overruled its earlier

decision in Sankari Prasad‟s and Sajjan Singh case and held that Parliament had no

power

from the date of this decision to amend Part III of the Constitution so as to take away

or

abridge the fundamental rights.

 

24th Amendment Act, 1971 – In order to remove difficulties created by the decision of

Supreme Court in Golak Nath‟s case Parliament enacted the (24th Amendment) Act..

The amendment has made the following amendments.

(1)It has added a new clause (4) to Art. 13 which provides that „nothing in this Art. Shall apply to any amendment of this constitution made under Art.368.

(2)It substituted a new marginal heading to Art. 368 in place of the old heading “Procedure for amendment of the Constitution” The new heading is “Power of Parliament to amend the

Constitution and Procedure therefore”

(3)It inserted a new-sub-section (1) in Art. 368 which provides that “notwithstanding anything in this constitution, Parliament may, in exercise of its constituent power amend by way of addition, Variation, or repeal any Provision of this Constitution in accordance with the procedure laid down in this Article”

(4)It substituted the words, “it shall be presented to the President who shall give his assent to the Bill and thereupon for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill”

(5)It has added a new clause (3) to Article 368 which provides that “nothing in Article 13 shall apply to any amendment made under this Article”

Theory of Basic Structure : A limitation on Amending Power

(1)The validity of the Constitution (24th Amendment) Act, 1971, was challenged in Keshvanand Bharti v. State of Kerala AIR 1973 SC 1461.

(2)What is the basic structure ?

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

-In Indira Nehru Gandhi v. Raj Narayan AIR 1975 SC 2299

-In Minerva Mills Ltd. v..Union of India AIR 1980 SC 1789

-In Keshavanand Bharati v. State of Kerala AIR 1973 S.C.1461

42nd Amendment and Article 368 – after the decisions of Keshavananda Bharti and Indira Nehru Gandhi a New Constitutional (Amendment) Act 1976 come into existence and added two new clauses, clauses (4) and (5) in Art.368.

Clauses (4) – Provided that „no Constitutional amendment (including the provision of Part

III) or purporting to have been made under Art. 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground.

Clauses (5) – removed any doubts about the scope of the amending power. It declared that there shall be no limitian whatever on the constituent power of parliament to amend by

way of addition, variation or repeal of the provisions of the Constitution under this Art.

The Constitutional amendments made under Art.368 can still be challenged on the ground that they are destructive of the “basic features” of the constitution.

The Kesvananda Bharti v. state of Kerala AIR 1973 S.C.1461

In Minerva Mills v. Union of India AIR 1980 S.C. 1789

In Waman Rao v. Union of India AIR 1981 S.C.386

In a landmark judgement in L.Chandra Kumar v. Union of India AIR 1997 S.C.1125.

In Sampat Kumar v. Union of India AIR 1987 SC 386

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Short Questions

Important doctrine

1.Retrospective effect

2.The Rule of Severability

3.Doctrine of Eclipse

4.Protection against Ex. Post Facto law

5.Protection against „Double Jeopardy‟

6.Prohibition against Self incrimination

7.Doctrine of Waiver

8.Colourable legislation

9.Define Article 12 „State‟

All current cases searching on

Supreme Court Website

All India Reporter (AIR)

All questions refer in books (Writer name J.N.Pandey)

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Important Questions

Q.1 Although there has been considerable controversy whether India is or is not a federation and although gone writers have called it, Quaint federal it would seen that essentially the Indian constitution is a federal one comment.

Q.2 Discuss the scope of freedom of speech and expression under the constitution is the absolute if not what restrictions are placed on it. Refer to care law.

Q.3 Discuss the special procedure relating to introduction and passing of money bill.

Q.4 What are the fundamental rights and fundamental duties under the Indian constitution.

Q.5 What Parliamentary Privileges are prescribed under the Indian constitution? Discuss briefly the controversy between parliamentary privileges and law court.

Q.6 What are the essential features of the Indian Constitution.

Q.7 What do you understand by the doctrine of basic structure of the constitution.

Q.8 When and in what circumstances can Parliament legislate on matters enumerated in the state list.

Q.9 Discuss the freedom and trade Commerce and Inter course as provided under the Indian constitution

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi)

Q.10(A) What is the procedure of the election of the president.

(B) When an emergency under Article 360 may be declared.

Q.11 What Protection Art-311

(A)Provided to the Civil Servants.

(B)What do you understand by the doctrine of Rule of Law.

Q.12 What do you understand by the doctrine of colourable legislation.

Q.13 Explain the Provisions of our constitution which ensure the Independence of Judiciary in what circumstances a dispute will be heard by the Supreme Court in the First Instance.

Q.14(A) What do you understand by the doctrine of Piths substance.

(B) What is the effect of Minerva Mill’s care on Art 368.

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