LLB Hon 3rd Sem Constitutional English

LL.B. (5Yrs.
) IIIrd Semester
Constitution Law
Unit –I
Syllabus
Constitution : Definition and Classification, Sources of Constitution, Constitutional Conventions,
Salient features of Indian Constitution, Rule of Law, Separation of powers
2012
Long Question
Q.1 Discuss the salient features of the Indian Constitution.
Hkkjrh; lafo/kku dh izeq[k fo”ks’krkvksa dh foospuk dhft,A
Q.2 “The rule of law permeates the entire fabric of the Indian constitution and indeed forms a
part of its basic feature.” Discuss.
Þfof/k dk “kklu Hkkjrh; lafo/kku ds jkse&jkse esa O;kIr gS vkSj okLro esa lafo/kku ds
ewyHkwr <kaps dk ,d vax gSAß foospuk dhft,A
Short Question
Q.1 Write short notes on the following :
fuEufyf[kr ij laf{kIr fVIif.k;k¡ fyf[k, %
¼i½ Souces of the Constitution
lafo/kku ds lzksr
¼ii½ Judicial Review
U;kf;d iqufoZyksdu
¼iii½ Fundamental Rights
ekSfyd vf/kdkj
2013
Long Question
Q.1 Discuss the salient features of the Indian Constitution.
Q.2 Explain the doctrine of separation of powers. How, it has played a role of check and balance
under Indian Constitution ? Evaluated with the help of decided cases.
“kfDr ds i`FkDdj.k ds fl)kUr dh O;k[;k dhft,A Hkkjrh; lafo/kku ds vUrxZr blus larqyu ,oa
fu;a=.k dh Hkwfedk dSlh fuHkk;h gS\ fu.khZr oknksa dh lgk;rk ls ewY;kadu dhft,A
Short Question
¼i½ Codified Constitution
laafgrkc) lafo/kku
2014
Long Question
Q.1 Define the term ‘Constitution’. Discuss the sources and classification of the constitutuion.
^lafo/kku* “kCn dks ifjHkkf’kr dhft,A lafo/kku ds lzksr ,oa oxhZdj.k dh foospuk dhft,A
1
Q.2 The rule of law permeates the entire fabric of the Indian Constitution and indeed forms a
part of the basic structure.” Discuss.
Þfof/k dk “kklu Hkkjrh; lafo/kku ds jkse&jkse esa O;kIr gS vkSj okLro esa lafo/kku ds
ewyHkwr <kaps dk vax gSAß foospuk dhft,A
¼i½ Rigid Construction
dBksj lafo/kku
¼ii½ Custom as a source of constitution
izFkk lafo/kku ds ,d lzksr ds :Ik esa
2015
Long Question
Q.1 Define Constitution. Discuss convention as a source of Constitution in the British and
Indian Perspective.
lafo/kku dks ifjHkkf’kr dhft,A Hkjr ,oa fczVsu ds ifjis{k esa dUosa”ku dks lafo/kku ds lzksr
ds :Ik esa foospuk djsaA
Q.2 Explain the doctrine of separation of powers. Discuss with the help of decided case law.
“kfDr ds i`FkDdj.k ds fl)kUr dh O;k[;k djsaA fu.khZr oknksa dh lgk;rk ls bldh foospuk
dhft,A
Short Question
Q.1 Federal Constitution
Lka?kkRed lafo/kku
Q.2 Rule of Law
fof/k dk “kklu
2016
1. Write short notes on the following:
fuEufyf[kr ij laf{kIr fVIi.kh fy[ksa%
(i) Unwritten Constitution
vfyf[kr lafo/kku
(ii) Principle of “Faith and trust”
Þfu’Bk ,oa fo”oklÞ dk fl)kUr
2. What do you understand by the term “Constitution”? Discuss the classification and kinds of the
Constitution.
Lkafo/kku “kCn ls vki D;k le>rs gSa\ lafo/kku ds izdkj rFkk oxhZdj.k dh foospuk djsaA
3. Define “Conventions”. Discuss conventions as a source of constitutional law in the light of British and
Indian Constitution.
ÞifjikfV;ksaÞ dks ifjHkkf’kr djsaA Hkkjrh; rFkk fczfV”k lafo/kku ds izdk”k esa ifjikfV;ksa dks lafo/kkfud fof/k
ds ,d lzksr ds :Ik esa foospuk djsaA
2017
Long Question
Q.1. Discuss various sources of the Constitution. How far constitutional conventions are applicable as one of
the important source of the Constitution? Explain.
2
Lkafo/kku ds fofHké lzksrksa dh foospuk dhft,A laoS/kkfud vfHkle; lafo/kku ds ,d egRoiw.kZ lzksr ds #i
esa dgka rd ykxw gS\ O;k[;k dhft,A
Q.2. “Where there is discretionary power there is always room for arbitrariness”. Explain the statement with
the help of decided case law.
Þtgk¡ Hkh oSosfdd “kfä gS ogk¡ lnk euekusiu dk LFkku gksrk gSAÞ fu.kZ;t fof/k ds fl)kUrksa dh lgk;rk ls
bldh O;k[;k dhft,A
Short Question
Q.1. Constitution
Lkafo/kku
Q.2. Federal Constitution
Lka?kkRed lafo/kku
2018
Long Question
Q.1. Define Constitution and discuss the salient features of Indian Constitution.
Lkafo/kku dks ifjHkkf’kr dhft, ,oa Hkkjrh; lafo/kku dh izeq[k fo”ks’krkvksa dh ppkZ dhft,A
Q.2. Explain the concept of separation of power. How far the separation of power is incorporated in Indian
Constitution? Discuss with relevant provisions.
“kfä i`Fkôj.k dh vo/kkj.kk dks le>kb;sA Hkkjrh; lafo/kku esa “kfä i`Fkôj.k dgk¡ rd lekfgr gS\ lqlaxr
izko/kkuksa ds lkFk ppkZ dhft,A
Short Question
1. Co-operative Federalism
Lkgdkjh la?kokn
2. Montesquieu
ekUVsLD;w
College Assignment Question
Unit-I
Q.1- What is the nature of the Indian Constitution? Is federalism one of the basic features of the Constitution?
In this respect discuss union’s responsibility to safeguard states against internal disturbance.
Hkkjrh; lafo/kku dh izd`fr D;k gS \ D;k la?kokn lafo/kku ds vk/kkjHkwr <kaps dk va”k gS \ bl lanHkZ esa
jkT;ksa dks vkarfjd xM+cM+h ls cpkus ds la?k ds mRrjnkf;Ro dh ppkZ dhft,A
Q.2- Discuss the salient features of the Indian Constitution.
Q.3 What do you mean by Rule of Law ? How far constitution has adopted it ? What is the importance of
this doctrine in a federal set up ? Elucidate.
*fof/k ds “kklu* ls vki D;k le>rs gSa\ Hkkjr ds lafo/kku us bls dgka rd vaxhd`r fd;k gS \ ,d la?kh; ifjos”k
esa bldh D;k egRrk gSA
Answers
Qns.1- What is the Nature of Indian Constitution. Is federalism one 0f the basic feature of our
Constitution Discuss union’s responsibility to safeguard states against internal disturbance.
Ans.
This answer shall include following points.

1. Nature of Indian Constitution—Indian Constitution is federal from structure and unitary
from it’s soul.
2. K.C. Wheare—Constitution is Quasi Federal.
3. Federalism—Federal principle is the method of dividing powers so that the central and state
government can perform their functions independently and with coordination.
4. Federalism is the basic structure of Indian 3Constitution.
5. Federal character
i) Distribution of power
ii) Supremacy of constitution
(a) There is no equality of state representation. Representation in the Parliament can vary
widely from one state to another depending on a number of factors including
demography and total land area.
(b) No double citizenship, i.e. no separate citizenship for country and state.
(c) The consent of a state is not required by the Parliament to alter its boundaries.
(d) No state, except Jammu and Kashmir, can draw its own Constitution.
The Constitution of India has been formulated with an object to construct a common national, political
and Constitutional identity for the people it covers. But in regard to nature, holding any fixed view may
not prove satisfactory.
Constitution being a single document, the state and government as well as their relations with their
inhabitants keep changing all the time. These changes take place irrespective of change in the text of the
constitution.
Example:- In India, the rise of regional and coalition politics which has impacted the centre. State
relations from a strong bias to words the centre in the constitution to slow and partial dependence of the
centre on the support of the states. This has happened despite the original text of the constitution and its
subsequent amendments in favour of the centre.
Constitution of India, as some will call it, is federal but many others would dispute this title.
According to Prof. K.C. Where:
“Federal principle is the method of dividing powers so that the general and regional
governments are each, within a sphere, coordinate and independent”.
Where is of the view that exceptions to this principle are permissible, provided the federal
principle is predominantly retained in the Constitution.
A Constitution which embodies a federal system has normally the following characteristics.
1. Distribution of powers
It means the distribution of powers between the central Govt. and the government of the several
units forming the federation.
A.V. Dicey- “Federation means the distribution of the power of the state among a numbers equivalent
coordinate bodies, each originating in and controlled by the constitution.
2. Supremacy of Constitution
It means that the constitution should be binding on the federal and State Government Neither of
the two Governments should be in a position to our ride the provisions of the Constitution relating to the
power and States which each is to enjoy.
3. Written Constitution
The Constitution must almost necessarily be a written Constitution. It will be practically
impossible to maintain the supremacy of the Constitution, unless the terms there of have been reduced
into writing.
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4. Rigidity
Rigidity does not mean that the Constitution should be legally immutable. It simply means that
the powers of amending the Constitution, at least of those provisions of the Constitution which regulate
the states and powers of the Federal and State Government. Should not be confided exclusively either to
the Federal or State Government.
5. Authority of Courts
This involves two connected matters-
1. There must be some authority, normally the courts of law, which can prevent the Federal and
State Governments from encroaching upon each other’s powers and declare laws made by
them ultra virus on the ground of excess of power.
2. It is not enough to empower the courts to pronounce upon the constitutionally or invalidity of
enactments of the Federal or State Governments.
It is important to constitute a final Supreme Court which should not be dependent upon the Federal
or State Governments, and should have the authority to have the last word in matters involving
Constitutional interpretation.
Part XI of the Indian constitution defines the power distribution between the fedral government
(the Centre) and the States in India. This part is divided between legislative administrative and executive
powers. The legislative section is divided into three lists: Union list, States list and Concurrent list. Unlike
the federal governments of the United States, Switzerland of Australia, residual powers remain with the
Centre, as with the Canadian federal government.
Federalism in India has a strong bias towards the Union Government. Some Unique features of
federalism in India are.
• There is no equality of state representation. Representation in the Parliament can vary widely from
one state to another depending on a number of factors including demography and total land area.
• No double citizenship, i.e. no separate citizenship for country and state.
• The consent of a state is not required by the Parliament to alter its boundaries.
• No state, except Jammu and Kashmir, can draw its own Constitution.
• No state has the right to secede.
Legislative Powers- The power of the states and the Centre are defined by the constitution and the
legislative powers are divided into three lists. i.e.
Union List-Union list consists of 100 items (Previously 97 items) on which the parliament has exclusive
power to legislate with including defence, armed forces, arms and ammunition, atomic energy, foreign
affairs, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and
telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and
commerce, banking, insurance, control of industries, regulation and development of mines, mineral and
oil resources, elections, audit of Government accounts, constitution and organization of the Supreme
Court, High Court6s and union public service commission, income tax, custom duties and export duties,
duties of excise, corporation tax, taxes on capital value of assets, estate duty, terminal taxes.
State List- State list consists of 61 items (previously 66 items) Uniformity is desirable but not essential
on items in this list: maintaining law and order, police forces, healthcare, transport, land policies,
electricity in state, village administration, etc. The state legislature has exclusive power to make laws on
these subjects. But in certain circumstances, the parliament can also make laws on subjects mentioned in
the State list. Them the parliament has to pass a resolution with 2/3 majority that it is expedient to legislate
on this state list in the national interest.
Though states have exclusive powers to legislate with regards to items on the State list, articles
249, 250, 252 and 253 state situations in which the federal government can legislate on these items.
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Qns.2- Discuss the salient features of the Indian Constitution.
Ans.-
1. Salient features of the Indian Constitution
i) Written Constitution
ii) The lengthiest Constitution
iii) Sovereign, Socialist, Secular, Democratic, republic
iv) Parliamentary form of government.
v) A Federation with strong centralizing tendency.
vi) A unique blend of Rigidity and flexibility
vii) Adult suffrage
viii) Single Citizenship
ix) Fundamental Rights
x) D.P.S.P
xi) Fundamental duties
xii) Independent Judiciary
xiii) Preventive Detention
The salient features of the Indian Constitution are as follows :
1- A Written Constitution- It is patent on its face that Indian Constitution is a written Constitution.
It is the formal source of all constitutional law in the country and it regarded as the supreme or the
fundamental law of the land it has certain implications.
(a) It provides for a limited government in the sense that the sovereign powers are divided amongst
the three organs of government the Executive, the Legislature and the Judiciary.
(b) The Constitution contains the basic or the fundamental law according to which the validity of the
laws enacted by the legislature is determined. A law enacted by the legislature cannot violate any
provision of the Constitution Supermacy in India lies with the Constitution and not with the
Parliament.
(c) While the constitution of India confers powers on the organs of the government it also limits on
the powers to be so exercised by them.
2- The Lengthiest, Bulkiest and the most detailed Constitution –The Indian Constitution is the
lengthiest and the most detailed of all the Constitution in the world. At its commencement it
contained 395 Articles divided into 22 parts and 8 Schedules in present 447 Articles divided into
24 parts and 12 schedules.
3- A Sovereign, Socialist, Secular, Democratic. Republic- The term sovereign literally means the
ultimate superior who recognizes no master. The term socialism is used in democratic as well as
socialistic constitution. It has no definite meaning. Only implies equal opportunities to each
individual for progress.
The term secularism means that the state in India has no religion of its own the state treats all
religions equally. Democracy is commonly defined as a government by the people of the people
and for the people.
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The term Republic in a narrow sense signifies a system under which the head of the state is on
elected person. In wider sense the word republic means “ a state in which the sub-sentatives or
officers as opposed to one governed by king or a similar ruler.
4- Parliamentary form of Government – The Indian constitution establishes a parliamentary form
of government is that the centre and the state level. The essential characteristics of a
Parliamentary from of government are that under such a system
(i) The Head of the state is merely a constitutional head and the
(ii) The Executive vested with real powers is made answerable to the legislature.
5- A Federation with strong centralizing tendencies-The India Constitution set up a federal
system of government. The foundation for a federal setup for the nation was laid in the
government of India Act 1935. The Chief characteristics of Federal Constitution are (a) written
constitution (b) supremacy lies with the constitution (c) separation of power (d) rigid
constitution (e) Independent judiciary.
6- A Unique Bled of Rigidity and Flexibility- From the stand point of amending the Constitution
the Indian Constitution is flexible as well as rigid. Same provisions of the Constitution can be
amended by the simple majority procedure as is followed for enacting ordinary laws. While the
rest of the constitution is amended by a special more difficult and technical procedure which
requires special majority in both the Houses of the Parliament
7- Adult Sufferage-Article 326 as amended by the Constitutions (61st Amendment) Act 1989
secures to every citizen of India who attains the age of 18 years the Right to vote to elect
representatives to the legislatures both Central as well as states.
8- Single Citizenship – The Constitution of India is federal and provides for a dual polity i.e. Union
and the states but it provides for a single citizenship for the whole of India. There is no separate
citizenship of the state. Every Indian is the citizen of India and enjoys practically the same civil
and political rights of citizenship no matter in which state he resides
9- Fundamental Right-Part III of the Indian Constitution secures to the people of India fundamental
basic and natural right. This Chapter is known as the Bill of Rights for the people of India. The
Constitution not only declares these fundamental right it also provides a speedy remedy for the
enforcement of their rights and the remedy for their enforcement is itself declared a fundamental
right.
10- Directive Principles of Static Policy-Part IV of the Constitution sets out the aims and objectives
to be taken up by the static in the governance of the Country. The directives contained therein
have been declared fundamental in the governance of the country and it has been declared a duty
of the stat to apply the them while making laws.
11- Fundamental duties-It is added by 42nd Amendment 1976 in part 4-A in democratic countries
only Japan have express provisions of fundamental duties. The object is to remind them that while
the constitution specifically confers on them certain fundamental rights it also requires the citizens
to observe certain basic norms of democratic conduct and behavior.
12- Independent Judiciary-The constitution of India provides for the setting up of an independent
judiciary. The judges of the Supreme Court and the High Courts are appointed by the Central
Executive but once appointed they are no more controlled by any authority. The constitution
secures to the Judges, the tenure of service and they cannot be removed before the expiry of their
tenure except by impeachment under the constitution. The power of judicial review vested in the
High courts under Article 226 and in the Supreme Court under Art. 32 has been held to be an
integral and essential feature of the constitution constituting part of its basic structure, which,
ordinarily, can never be ousted or excluded.
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13- Preventive Detention-In order to prevent any abuse of freedom by anti social and subversive
elements which might endanger the national welfare of the infant Republic of India the
Constitution contains a unique, though, pernicious feature in the form of preventive Detention. It
empowers the state to enact a law providing for preventive detention of persons, even during
peacetime for reasons connected with defense or maintenance of supplies and services essential
to the community.
Q.3 What do you mean by Rule of Law ? How far constitution has adopted it ? What is the importance
of this doctrine in a federal set up ? Elucidate.
Ans.-
1. Rule of Law
Meaning—No man is above the law and that every person. Whatever be his rank or
conditions is subject to the jurisdiction of ordinary Court.
2. Professor Dicey gave three meanings of the Rules of law this :-
i) Absence of Arbitrary Power of supremacy of the law.
ii) Equality before the law.
iii) The Constitution is the result of the ordinary law of the land.
3. Exceptions to the Rules of law
i) Powers of the private citizens are not the same as the powers of the public officials.
ii) Article 361 of the Indian Constitution affords immunity to the President of India and
the State Governors.
iii) Discretionary powers of the ministers and other executive body.
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. “With us”, Dicey wrote “every official from the Prime Minister down to constable
or a Collector of taxes is under the same responsibility for every act done without legal justification as any other
citizen”. Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment
even when the object is the securing of the paramount exigencies of law and order.
Professor Dicey gave three meanings of the Rule of Law thus—
1. Absence of Arbitrary Power or Supremacy of the law-- It means the absolute supremacy of law as
opposed to the arbitrary power of the Government. In other words—a man may be punished for a breach of law,
but he can be punished for nothing else.”
2. Equality before the law—It means subjection of all classes to the ordinary law of the land administered
by ordinary law courts. This means that no one is above law with the sole exception of the monarch who can do
no wrong.’ Everyone in England, whether he is an official of the State or a private individual, is bound to obey
the same law. Thus, public officials do not hold a privileged position I Great Britain. In Great Britain there is one
system of law and one system of courts for all, i.e., for public officials and private persons.
3. The Constitution is the result of the ordinary law of the land—It means that the sources of the right
of individuals is not the written Constitution but the rules as defined and enforced by the courts.
The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of law does
not apply to Indian system as the source of rights of individuals is the Constitution of India. The Constitution is
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the Supreme Law of the land and all laws passed by the legislature must be consistent with the provisions of the
Constitution.
The rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by
police methodology. The Rule of Law embodied in Article 14 is the ‘basic feature’ of the Indian Constitution
and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.
The words ‘any person’ in Article 14 of the Constitution denote that the guarantee of the equal protection
of laws is available to any person who includes any company or association or body of individuals. The protection
of Article 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 Article 14.
Exceptions to the Rule of Law—The above rule of equality is, however, not an absolute rule and there are
number of exceptions to it : First ‘equality before the law’ does not mean the “powers of the private citizens are
the same as the powers of the public officials.” Thus, a police officer has the power to arrest while no private
person has this power. This is not the violation of the rule of law. But the rule of law does require that these
powers should be clearly defined by law and that abuse of authority by public officers must be punished by
ordinary courts in the same manner as illegal acts committed by private persons. Secondly, the rule of law does
not prevent certain classes of persons being subject to special rules. Thus, members of the armed forces are
controlled by military laws. Similarly, medical practitioners are subjected to the regulations framed by the
Medical Council of India, a statutory body, and are immune from the jurisdiction of the Medical Council of India,
a statutory body, and are immune from the jurisdiction of ordinary courts. Article 361 of the Indian Constitution
affords immunity to the President of India and the State Governors. Article 361 provides that the President or the
Governors of State shall not be answerable to any Court for the exercise and performance of the powers and duties
of the office or for any act done or purporting to be done by him in the exercise and performance of those powers
and duties. No criminal proceeding shall be instituted or continued against the President or the Governor of a
State in any Court during his term of office. No process for the arrest or imprisonment of the President or the
Governor of State shall be issued from any Court during is term of office. Thirdly, today ministers and other
executive bodies are given very wide discretionary powers by statute. A minister may be allowed by law ‘to act
as he thinks fit’ or ‘if he is satisfied’. Such power is sometimes abused. Today, a large number of legislation is
passed in the form of delegated legislation, i.e. rules, orders or statutory instruments made by ministers and other
bodies and not directly by Parliament. These rules did not exist in Dicey’s time. Fourthly, certain members of
society are governed by special rules in their professions, i.e. lawyers, doctors, members of armed forces and
police. Such classes of people are treated differently from ordinary citizens.
9
LL.B. (5Yrs.) IIIrd Semester
Constitution Law
Unit-II
Syllabus
Distributive of Powers between Center and States : Legislative Powers- Administrative Powers-Financial
Power, Doctrine of Territorial Nexus-Doctrine of harmonious Construction-Doctrine of Pith and Substance-
Doctrine of Repugnancy.
2011
Long Question
Q.1 Analyse the provisions of the Constitution of India regarding the administrative relations between the
union and states.
la?k vkSj jkT;ksa ds chp iz”kklfud lEcU/kksa ls lEcfU/kr lkafo/kkfud micU/kksa dk fo”ys’k.k dhft,A
Q.2 Write a note on the scheme of distribution of legislative powers between the parliament and state
legislature as enshrined under article 246 of the Constitution.
lafo/kku ds vuqPNsn 246 ds vUrxZr lekfo’V laln rFkk jkT; fo/kkue.My ds e/; fu/kkZfjr fo/kk;h “kfDr;ksa ds
foHkktu dh O;k[;k dhft,A
Short Question
¼i½ Distinction between Money Bills and Financial Bills.
/ku fo/ks;dksa rFkk foRrh; fo/ks;dksa esa Hksn
¼ii½ Constitution and Status of Council of States.
jkT; lHkk dh lajpuk ,oa izkfLFkfr
2012
Long Question
Q.1 Discuss the scheme of distribution of legislative powers between the Centre and State, enshrined under
the Indian constitution.
Hkkjrh; lafo/kku ds vUrxZr lekfo’V dsUnz rFkk jkT;ksa ds e/; fu/kkZfjr fo/kkFkhZ “kfDr;ksa ds foHkktu dh
foospuk dhft,A
Q.2 Write notes on any two of the following:
fuEufyf[kr ls fdUgha nks ij fVIif.k;ka fyf[k;s
¼a½ Doctrine of Repugnancy vlaxrrk dk fl)kUr
¼b½ Doctrine of Harmonious Construction lkeatL;iw.kZ vFkkZUo;u dk fl)kUr
¼c½ Duties of the Finance Commission foRr vk;ksx ds drZO;
Short Question
Q.1 Write short notes on the following: fuEufyf[kr ij laf{kIr fVIif.k;k¡ fyf[k, %
¼i½ Doctrine of Pith and Substance rRo ,oa lkj dk fl)kUr
2013
Long Question
Q.1 Analyze the provisions of the Constitution of India regarding the administrative relations between the
Centre and States.
dsUnz rFkk jkT;ksa ds e/; iz”kklfud lEcU/kksa ls lEcfU/kr lafo/kkfud micU/kksa dh foospuk dhft,A
Q.2 Discuss the distribution of legislative powers between the Centre and States.
dsUnz rFkk jkT;ksa ds e/; fo/kk;h “kfDr;ksa ds forj.k dh foospuk dhft,A
Short Question
¼i½ Federal Constitution Lka?kkRed lafo/kku
10
¼ii½ Doctrine of pith and substance rRo ,oa lkj dk fl)kUr
¼iii½ Doctrine of repugnancy vlaxrrk dk fl)kUr
¼iv½ Distinction between soverign and non-sovereign functions
lEizHkq rFkk vlEizHkq dk;ksZa esa foHksn
2014
Long Question
Q.1 Discuss the scheme of distribution of powers between Union and State as enshrined under the Indian
Constitution.
Hkkjrh; lafo/kku ds vUrxZr lekfo’V dsUnz ¼la?k½ rFkk jkT;ksa ds e/; “kfDr;ksa ds forj.k dh foospuk dhft,A
Q.2 Write notes on the following :
¼i½ Duties of finance commission foRr vk;ksx ds drZO;
¼ii½ Doctrine of occupied field /kkj.kkf/kdkj {ks= dk fl)kUr
Short Question
¼i½ Doctrine of territorial norms {ks=h; lEc)rk dk fl)kUr
¼iii½ Doctrine of repugnancy “kfDrckg~;rk dk fl)kUr
2015
Long Question
Q.1 Discuss the scheme of distribution of legislative powers between the Union and State.
dsUnz vkSj jkT;ksa ds e/; fo/kk;h “kfDr;ksa ds forj.k dh foospuk dhft,A
Q.2 “The relationship between Union and State is based on the principle of faith and trust”. Critically examine
the statement.
ÞdsUnz vkSj jkT;ksa ds e/; lEcU/k fu’Bk ,oa fo”okl ij vk/kkfjr gSÞA bl oDrO; dk vkykspukRed ijh{k.k djsaA
Short Question
Q.1 Doctrine of Repugnancy
vlaxrrk dk fl)kUr
2016
Q. 1 Write short notes on the following:
(i) Colourable Legislation
Nn~e fo/kk;u dk fl)kUr
(ii) Consolidated fund of India
Hkkjr dk lesfdr dks’k
Q.2 Explain the circumstances in which Parliament can legislate the law on the matters in State List.
mu ifjfLFkfr;ksa dh O;k[;k djsa ftlesa laln jkT; lwph ds of.kZr fo’k;ksa ij fof/k cuk ldrh gSA
Q. 3 Discuss the origin and development of the doctrine of “Pith and substance.” Explain with the help of
decided cases by the Supreme Court of India.
ÞrRo ,oa lkjÞ ds fl)kUr ds mn~Hko ,oa fodkl dh foospuk djsaA Hkkjr ds mPpre U;k;ky; }kjk fu.khZr oknksa
dh lgk;rk ls bldh O;k[;k djsaA
2017
Long Question
Q.1. Discuss the scheme of distribution of legislative powers between the Union and States.
Lka?k rFkk jkT;ksa ds e/; fo/kk;h “kfä;ksa ds forj.k dh foospuk dhft,A
Q.2. Explain the administrative relations between Union and States.
dsUnz rFkk jkT;ksa ds e/; iz”kklfud lEca/kksa dh O;k[;k dhft,A
Short Question
11
Q.1. Doctrine of repugnancy
vlaxrrk dk fl)kUr
Q.2. Theory of territorial nexus
{ks=h; fudVrk dk fl)kUr
Q.3. Doctrine of pith and substance
rRo ,oa lkj dk fl)kUr
2018
Long Question
Q.1. Discuss in detail about the division of legislative powers between centre and state. What are the
circumstances in which Parliament may make a law over State List? Explain.
dsUnz ,oa jkT; ds e/; fo/kk;h “kfä;ksa ds foHkktu dh foLrkj ls ppkZ dhft,A os dkSu&lh ifjfLFkfr;ka gSa
ftuesa laln] jkT; lwph ij fof/k cuk ldrh gS\ O;k[;k dhft,A
Q.2. Discuss the administrative relations between Centre and State.
dsUnz ,oa jkT; ds e/; iz”kklfud lEcU/kksa dh ppkZ dhft,A
Short Question
1. Colourable Legislation
Nn~e fo/kk;u
2. Doctrine of pith and substance
Lkkj ,oar rRo dk fl)kar
College Assignment Question Answer

Unit-II
Longs
Q.1 Write short notes on the following :-
(i) Doctrine of territorial nexus jkT; {ks=h; laca/k dk fl)kUr
(ii) Doctrine of Repugnancy vlaxrrk dk fl)kUr
(iii) Doctrine of Harmonious Construction lkeatL;iw.kZ vFkkZUo;u dk fl)kUr
Q.2 The doctrine of pith & substance introduce a degree of flexibility into the otherwise rigid scheme of
distribution of legislative power under the Indian Constitution. Justify this statement with the help of case
laws.
rRo vkSj lkj dk fl)kUr] Hkkjr ds lafo/kku ds v/khu fo/kk;h “kfDr ds forj.k dh vU;Fkk dBksj ;kstuk esa uE;rk
dh dqN ek=k Mky nsrk gSA fu.khZr oknksa dh lgk;rk ls bl dFku dks lgh lkfcr dhft,A
Q.3 There is administrative control of Centre over the State.” Discuss in the light of Centre-State
administrative relations.
ÞjkT;ksa ij dsUnz dk iz”kklfud fu;a=.k gSAß dsUnz ,oa jkT; ds e/; iz”kklfud lEcU/kksa ds izdk”k esa bldh
foospuk dhft,A
Answers
Long Answers:-
Q.1- Write short notes on the following:-
(i) Doctrine of Territorial nexus
(ii) Doctrine of Repugnancy
(iii) Doctrine of Harmonious Construction.
Ans.-
1. Doctrine of Territorial Nexus
2. Meaning—Art. 245 (1)- This means that state laws would be void if it has extra territorial
operation i.e. takes effect outside the state.12However, there is one exception to this general rule-
A State law of extra territorial operation will be valid if sufficient nexus between the object and
the state.
Important cases-
3. 2. Doctrine of Repugnancy
a) Art. 254-- Where there is inconsistency between a central law and a state law relating
to a subject mentioned in concurred list, Central law shall prevail.
Important case-
• M. Karunanidhi Vs. U. O. I. AIR
b) Exception : If a state law with respect to any of the matters enumerated in the
Concurrent list contains any provision repugnant to the provisions of an earlier law
made by Parliament or any existing law with respect of the matter then the state law
if it has been reserved for the assent of President shall prevail not withstanding such
repugnancy.
Doctrine of Territorial nexus- The Legislature of a State may make laws for the whole or any part or any part
of the State. [Art. 245(1)]. This means that State Laws would be void if it has extra- territorial operation i.e., takes
effect outside the State. However, there is one exception to this general rule. A State law of extra- territorial
operation will be valid if there is sufficient nexus between the object and the State.
In Wallace v. Income Tax Commissioner, Bombay AIR 1948 PC a company which was registered in England was
a partner in a firm in India. The Indian Income tax Authorities sought to tax the entire income made by the
company. The Privy Council applied the doctrine of territorial nexus and held the levy of tax valid. It said that
the derivation from British India of major part of its income for a year gave to a company for that year sufficient
territorial connection to justify its being treated as at home in India for all purposes of tax on its income for that
year from whatever source income may be derived. In State of Bombay v. R.M.D.C. A.I.R. 1957 SC, the Bombay
State levied a tax on lotteries and prize competitions. The tax was extended to a newspaper printed and published
in Bangalore but had wide circulation in Bombay. The respondent conducted the prize competitions through this
paper. The court held that there existed a sufficient territorial nexus to enable the Bombay State to tax the
newspaper. If there is sufficient nexus between the persons sought to be charged and the State seeking to tax him,
the taxing statute would be upheld. But the connection between the State and the subject-matter of law must be
real and not illusory and the liability sought to be imposed must be pertinent to that connection. Whether there is
sufficient connection is a question of fact and will be determined by Courts in each accordingly.
State tax legislations have frequently been challenged on the ground of their
extra-territoriality and the courts have in determining the validity of such legislations applied "the doctrine of
nexus": if there is a territorial nexus or connection between the person sought to be charged and the State seeking
to tax him, the taxing statutes upheld. But the connection must be sufficient. Sufficiency of the territorial
connection involves a consideration of two elements, namely: (1) the connection must be real and not illusory,
and (2) the liability sought to be imposed must be pertinent to that connection.
(ii) Doctrine of Repugnancy
Article 254 (1) says that if any provision of law made by the legislature of the State is repugnant to any provision
of law made by the Parliament which is competent to enact or to any provision of the existing law with respect to
13
one of the matters enumerated in the Concurrent List, then the law made by Parliament, whether passed before or
after the law made by the 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 repugnancy be void.
Art. 254(1) only applies where there is inconsistency between a Central Law and a State Law relating to a subject
mentioned in the Concurrent List. But the question is how repugnancy is to be determined? In M. Karunanidhi v.
Union of India AIR 1979 SC, Fazal Ali. J., reviewed All its earlier decisions and summarized the test of
repugnancy.
According to him a repugnancy would arise between the two statutes in the following situations:`
1. It must be shown that there is clear and direct inconsistency between the two enactments [Central and
State Act] which is irreconcilable, so that they cannot stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes
operating in the same field without coming into collusion with each other, no repugnancy results.
4. 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 continues to operate in the same field.
The above rule of repugnancy is, however, subject to the exception provided in clause (2) of this Article.
According to clause (2) if a state Law with respect to any of the matters enumerated in the Concurrent list
contains any provision repugnant to the provisions of an earlier law made by Parliament, or an existing law
with respect of that matter, then the State Law if it has been reserved for the assent of President and has
received his assent, shall prevail notwithstanding such repugnancy. But it would still be possible for the
Parliament under the provision to clause (2) to override such a law by subsequently making law on the same
matter. If it makes such a law the State Law would be void to the extent of repugnancy with the Union Law.
In Deep Chand v. State of U.P. AIR 1959 SC the validity of U. P. Transport Service (Development) Act was
involved. By this Act the State Government was authorized to make the Scheme for nationalization of Motor
Transport in the State. The law was necessitated because the Motor Vehicles Act, 1939 did not contain any
provision for the nationalization of Motor Transport Services. Later on, in 1956 the Parliament with a view to
introduce a uniform law amended the Motor Vehicles Act, 1939, and added a new provision enabling the
State Government to frame rules of nationalization of Motor Transport. The Court held that since 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.
(iii) Doctrine of Harmonious Construction
The Supreme Court has held that in matters of interpreting the limits of jurisdiction of the Union and the States,
entries in the Union and the State Lists must be read together, and the language of one interpreted, and where
necessary, modified by that of the other. This is known as the doctrine of harmonious construction.
________________________________________________________________________________________
Q. 2- The Doctrine of pith & substance introduce a degree of flexibility into the otherwise rigid scheme
of distribution of legislative power under the Indian Constitution. Justify this statement with the help of
case laws.
Ans.-
1. Union State Relation
Relationship between the Union and the state:
i.Legislative Relation (A. 245-255)
ii.Administrative Relation (A. 256- 263)
iii.Financial Relation (A. 264-289)
2. Legislative Relation :
14
i. With respect to territory
ii. With respect to subject matter
a) Union list – 97 Subject
b) State list – 61 Subject
i) Legislation under A. 249 in the National interest.
ii) Legislation under A. 250 during emergency
iii) Legislation under A. 252 with consent of 2 or more states.
iv) Legislation under A. 253 to implement international Agreement
v) Legislation under A. 356 in care of failure of constitutional machinery in the state.
5. Pith and substance- It says that where the question arises of determining whether a
particular law relates to a particular subject (mentioned) in one list or another) the
Court looks to the substance of the matter.
Thus if the substance falls within Union list then the incidental encroachment by
the law on the state list does not make it invalid.
Union- State Relationship:
UNION - STATE - RELATIONSHIP
Legislative Administrative Financial

Relationship Relationship Relationship
Grants in aid Loans/Advances Subsidy
The distribution of powers is an essential feature of federalism. The object for which a federal State is
formed involves a division of powers between the Central Government and the State Governments.
Relationship between the Union and the States:
Relation between Union and States may be divided into following categories:
(i) Legislative Relations (Art. 245-255)
(ii) Administrative Relations (Art. 256- 263)
(iii) Financial Relations (Art. 264- 289)
Legislative relations(Art. 245- 255): The Constitution of India makes two fold distributions of legislative
relations.
(a) With respect to territory.
(b) With respect to subject matter.
(a) With respect to territory (Territorial Jurisdiction) (Art. 245): Art. 245 of the constitution deals with
the territorial distribution of legislative powers between the union and the States. The union has power to
make laws for the whole or any part of the territory of India and the States has power to make laws for the
whole or any part of its own territory.
15
Clause (2) of the Art. 245 provide that a parliamentary law shall not be invalid merely because it has
extra territorial operations. There is no provision to permit extra territorial operation of State Laws.
Territorial nexus.-The power to make a law having extra-territorial operation is conferred only on
Parliament and not on the State Legislatures. Hence, an Act of
the State Legislature, if it gives extra-territorial operation to its provisions, can
successfully be challenged in the court, unless the extra -territorial operation can be sustained on the ground
of territorial nexus. This means that a State law is not
invalid so long as there is a sufficient nexus or connection between the State making that law and the
subject-matter of legislation. In other words, although the object to which the law applies may not
physically be located within the territorial limits of a State, yet the State law will be valid if there exists a
connection or nexus between the State and that object.
(b) With respect to Subject Matter: (Distribution of legislative powers) Art. 246
Distribution of legislative powers between the centre and state is one of the essential conditions of federal
type of government. The Indian Constitution adopts the method followed by the government of India Act,
1935. The government of India Act, 1935 adopted a scheme of distribution of powers by the three separate
lists. Similarly, in the VII Schedule of the Constitution there are three lists:
1) Union List,
2) State list and
3) Concurrent List.
Union list includes the 97 subjects, originally, on which the Parliament has exclusive powers, State list
includes 66 subjects on which State Legislature have exclusive powers and concurrent list includes 47
subjects on which both Union and State Legislature can legislate. But in case of conflict between the
Central Law and State laws on concurrent list the central law will prevail. VII th Schedule of the
Constitution should be read together with Art. 246 of the Consitiution.
According to Art. 246(1) parliament has exclusive power to make laws with respect to any of the matters
enumerated in the list 1 of the seventh schedule (in the Constitution it is Union List).
Similarly, according to clause (2) of Art. 246, Parliament and legislature of any state have power to make
laws with respect to any of the matter enumerated in List 3 in the 7th Schedule. (Concurrent List).
According to Art. 246 (3), the legislature of any State has exclusive power to make laws for such State or
any part thereof, with respect to any of the matter enumerated in List (2) of the VIIth Schedule.
Residuary Power: (Art. 248)
While framers of the American and Australian Federations have residuary powers vested in States, the
makers of the Indian Constitution favored strong union and therefore residuary powers are vested in the
Union (Canadian Setup). It is like that of Canada. In this reference Art. 248 says that, Parliament has
exclusive powers to make any law with respect to any matters not enumerated in the concurrent list or
state list.
Parliament’s powers to legislate on State subject: Although on matters enumerated in the state list, state
legislatures have exclusive powers. Yet under the following situations, Parliament shall be competent to
make laws on those matters:
1) Legislation under Art. 249 in the National Interest: According to Art. 249 when the Council of
States declares by resolution supported by 2/3rd of its members present and voting that it is necessary
in national interest that parliament should make laws with respect to any matter enumerated in the
state list, then it shall be lawful for parliament to make laws on such matters for the whole or any part
of the territory of India. According to clause (2) of Art. 249, resolution of council of states shall
remain in force for such period as may be specified in the resolution, but subject to maximum 1 year.
It may be renewed as many times necessary but such law of Parliament will cease to have effect on
the expiration of the period 6 months after resolution has ceased to operate.
2) Legislation under Art. 250 during emergency: Art. 250 provides that during the period when
proclamation of emergency is in force, Parliament shall have power to legislate on any matter
16
enumerated in the State List. Such law is permitted only to deal with emergent situation. The law
passed by Parliament on such matter will cease to have any effect after the period of 6 months from
the date the proclamation has ceased to be in force.
3) Legislation under Art. 252 with the consent of 2 or more states: Art. 252 provides that when
legislature of two or more states pass a resolution that it is desirable that any matter with respect to
which Parliament has no power should be regulated by the Parliament, then it shall be lawful for
Parliament to make laws with respect to such matters for those states. Any other State may also adopt
such legislation.
4) Legislation under Article 253 to implement international agreement: Art. 253 empowers the
Parliament to make any laws for the whole or any part of the territory of India for implementing
treaties and international agreements. In fact Art. 253 enables the government of India, to Implement
all international obligations.
5) Legislation under Article 356 in case of failure of constitutional machinery in the State:
Under art. 356, Parliament is empowered to make laws with respect to all matters in the State list
when the President declares that the Government of that State cannot be carrie on in accordance with
the provisions of the Constitution.
The Doctrine of pith & substance introduce a degree of flexibility into the otherwise rigid scheme of distribution
of legislative power under the Indian Constitution. To understand this we have to discuss the Doctrine in detail
as follows:
Pith and substance- The doctrine of pith and substance is applied when the legislative competence of a legislature
with regard to a particular enactment is challenged with reference to the entries in different legislative lists because
a law dealing with a subject in one list within the competence of the legislature concerned is also touching on a
subject in another list not within the competence of that legislature. In such a case, what has to be ascertained is
the pith and substance of the enactment – the true character and nature of the legislation. If, on examination of
the statute, it is found that the legislation is in substance on a matter assigned to the legislature enacting that
statute, then it must be held valid in its entirety even though it may incidentally trench upon matters beyond its
competence, i.e., on matters included in the list within the competence of the other legislature. Legislative matters
in different lists are bound to overlap and therefore incidental encroachments shall take place. In such cases "the
question must be asked," said Lord Porter in Prafulla Kumar v. Bank of Commerce, "what in pith and substance
is the effect of the enactment of which complaint is made and in what list is its true nature and character to be
found." After having ascertained the true character of law, the court must point out in which of the three Lists an
Act of that nature truly falls. In the absence of this rule the legislature concerned, particularly State legislatures,
cannot effectively deal with the subject matters assigned to them. Therefore, this rule has been evolved in all
Constitutions where the legislative subjects are enumerated in more than one list falling within the competence
of different legislatures.
________________________________________________________________________________________
Q.3 There is administrative control of Centre over the State.” Discuss in the light of Centre-State
administrative relations.
Ans.
1. Centre – State
(Administrative Relation)
a) Direction by the Union to the State Government
b) Delegations of Union functions to the states.
c) All India Services
d) Grant in aid
e) Full faith and credit clause
2. Dispute relating to water (A. 262)
3. Establishment of Inter State Council (A.263. )
17
Administrative Relations—Arts. 256-263—
“A federal scheme involve in the setting up the dual Government and division of powers. But the success
and strength of the federal policy depends upon the maximum of co-operation and co-ordination between the
governments. In fact, the adjustment of administrative relations between the Union and the States is one the knotty
problems in a federal Government. The framers of the Indian Constitution therefore decided to include detailed
provisions to avoid clashes between the Centre and the States in the administrative domain and to ensure effective
Federal Executive control of matters failing within the jurisdiction of the Parliament. In order to ensure smooth
and proper functioning to the administrative machinery, they made provisions for meeting all types of eventualties
resulting through the working of federalism or emergence of new circumstances due to difference of opinion
between the dual authorities. Moreover, the Union Government was to be responsible for maintaining peace and
order in the country.
Therefore, co-operation and co-ordination between the Centre and the State Administrative authorities
was thought indispensable. In emergency the Government of India exercises authorities was thought
indispensable. In emergency the Government of India exercises complete control over the State and functions as
if it is a unitary Government.
Control of Union over States—Article 256 to 263 provide for Union control over States even in normal
times through following ways:
(a) Direction by the Union to the State Goverments
(b) Delegations of Union functions to the States,
(c) All-India Services
(d) Grants-in-aid.
(a) Direction by the Centre to the States—“The idea of Union giving direction to the States is foreign and
repugnant to a rule of federal system. But this idea was taken by framers of our Constitution from the Government
of India Act, 1935, in view of the peculiar conditions of this country and particular circumstances out of which
the federation emerged.
Article 256 provides that the executive power of the State shall be so exercised as to ensure compliance
with the laws made by Parliament and the executive power of the Union shall also extend to the giving of such
directions to a State as it may deem essential for the purpose. Thus power to give direction was necessary because,
if the Centre was not vested with such power the power execution of the laws passed by the Parliament would
become impossible. Accordingly, Article 257 enacts that the States must exercise their executive power in such
a way so as not to impede or prejudice the exercise of the executive power of the Union in the State. For this
purpose the Central Government can give directions to a State as to in which way the State should exercise its
executive power. The powers of the Central Government also extend to giving directions to a State in two specific
matters:-
1. The construction and maintenance of means of communication which are declared to be of national or
military importance, 2. Measures to be taken for the protection of the railway within the States. This power of
giving direction does not in any way affect the power of the Parliament to declare highways or waterways to be
National Highways and waterways and to construct and maintain means of communication as part of its functions
with respect to naval, military or air force works.
If in carrying out the directions of the Union Government given under clause (2) the State incurs additional
costs the Union Government under Art. 257 (4) shall pay to the State Government such sum as may be agreed. If
the Centre and State cannot come to an agreement regarding the compensation to be paid by the former to the
latter, the matter is to be referred to the arbitrator to appointed by the Chief Justice of India.
The Constitution prescribes a coercive sanction for the enforcement of its directions through Art. 356.
Article 356 provides that if the State has failed to comply with or to give effect to any directions given by the
Central Government then the President is empowered to declare an emergency to the effect that the State
Government cannot be carried on in accordance with the provisions of the Constitution and assume himself all
functions of the State.
(b) Delegation of Union’s function to the States—Under Article 258 the Parliament may, with the consent
of the State Government, entrust either conditionally or unconditionally to the Government or to its officers
18
functions relating to any matter falling within the executive powers of the Union. Under clause (2) Parliament is
also empowered to use State machinery for the enforcement of Union Laws and for this purpose may confer
power or impose duties upon the State or its officers or authorities therefore in respect of these matters to see that
the laws are made applicable to the State. It is to be noted that while under clause (1) delegation of power is made
with the consent of the State the consent of the State is not necessary under clause (2) and delegation can be made
by Parliament by law.
If a law is passed delegating powers and imposing duties, it would be the duty of the officers of the State
to implement the law. Thus constitutes a great encroachment on the autonomy of the State, and reduces the States
as mere agents of the Centre.
Like the Central Government, the State Government can also delegate its power to the Union and its
officers. Article 258-A lays down that the Governor of the State may with the consent of the Government of India,
entrust to the Government or its officers, functions, relating to any matter to which the executive power of that
Government extends. It is thus clear that where it is not inconvenient for either Government to directly carry out
its administrative functions it may get those functions executed through the other Government.
(c) All-India Services—Beside the separate services for the Union and the States the Constitution provides
for the creation of an additional “All-India Service” common to the Union and the States. According to Article
312 if the Rajya Sabha passes a resolution supported by not less than two-thirds of the members present and
voting that it is necessary or expedient in the nation’s interest to do so, Parliament may by law provide for the
creation of one or more All India Services common to the conditions of persons appointed to any service.
The object his provision is to ensure greater inter-State co-ordination and Implementation of the policies
of the Central Government through these officers. This also enables the Central Government to exercise a control
over State in matters of execution of Union laws.
(d) Grants in- aid—Under the constitution the financial resources of the State are very limited though they
have to do many works of social uplift under directive principles. In order to cope with their ever-expanding
needs, the Central Government makes grants-in-aid to the States. Grant-in-aid to States thus serve two purposes:
1. Through its Central Government exercises a strict control over the State because grants are granted subject to
certain conditions. If any State does not agree to the condition the Central Government may withdraw the grant,
and (2) it generates a Centre-State co-ordination and co-operaton if a State wants to develop its welfare schemes
for the people of the State it may ask for financial help from the Centre.
(e) Full faith and credit clause—Article 261 declares that full faith and credit shall be given throughout the
territory of India to public acts, records and judicial proceedings of the Union and every State. According to clause
(3) final judgment or orders delivered or passed by Civil Courts in any part of the territory of India can be executed
anywhere in the country according to law.
Disputes relating to Water—Article 262 authorities the Parliament to provide by law for adjudication of
any dispute or complaint with respect to the uses, distribution or control of the waters of any inter-State rivers
and river valleys. Under clause (2) of this Article, Parliament many by law provide that neither the Supreme Court
nor any other Court shall have any jurisdiction in respect of such disputes and complaints relating to water of
inter-State rivers and river valleys. Under Article 262 Parliament has passed the River Board Act, 1956 and the
Inter-State Water Disputes Act, 1956. The River Board Act is meant for the regulation and development of inter-
State rivers and river valleys. This is established on the request of the State Government to advise the Government.
The Water Disputes Act empowers the Central Government to set up a Tribunal for the adjudication of such
disputes. The decision of the Tribunal shall be final and binding on the parties to the disputes. Neither the Supreme
Court nor any other Court shall have jurisdiction in respect of any water dispute which may be referred to such a
Tribunal under that Act.
Establishment of Inter-State Council—The President of India in exercise of the powers under Art. 263
has constituted the Inter-State Council on May 28th, 1990. It consists of the following members: (a) Prime
Minister; (b) Chief Ministers of all States (c) Chief Ministers of Union Territories having a Legislative Assembly
and Administrators of Union Territories not having a Legislative Assembly; (d) Six Ministers of Cabinet Rank in
the Union Council of Ministers to be nominated by the Prime Minister. The Ministers of State having independent
charge in the Union Government may be invited when any item relating to their Ministry is to discussed.
19
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.
20
Constitution Law
Unit – III
Syllabus
Constitution Organs : (i) Parliament (ii) Parliamentary Sovereignty (iii) Parliamentary Privileges (iv) Anti
Defection Law (v) Executive Power (vi) Collective Responsibility of Cabinet (vii) Judiciary-Jurisdiction of
Supreme Court and High Courts (viii) Independence of Judiciary (ix) Public Interest Litigation (x) Power of
Judicial Review (xi) doctrine of Political Question.
2011
Long Question
Q.1 Discuss the legislative, executive and discretionary powers of the President of India? What is the
nature of his clemancy power? Elucidate.
Hkkjr ds jk’Vªifr dh fo/kk;h] dk;Zikyd o foosdk/khu “kfDr;ksa dh foospuk dhft,A mldh {keknku
“kfDRk dh izd`fr D;k gS \ O;k[;k dhft,A
Q.2 Discuss the interrelation between the two of Parliament in the light of their respective powers and
functions.
Lkaln ds nksuksa lnuksa dh “kfDr;ksa o dk;ksZa ds ifjizs{; esa muds varlZacU/kksa dh foospuk
dhft,A
Or
Discuss the provisions of the Constitution which are meant for ensuring the independence of
judiciary in India. In this respect discuss the recent development.
lafo/kku ds mu micU/kksa dh foospuk dhft, ftuls Hkkjr esa U;k;ikfydk dh Lora=rk lqjf{kr gksrh
gSA bl lanHkZ esa gky dh ?kVukvksa dh ppkZ dhft,A
Short Question
Q.1 Write short notes on the following:
¼i½ Joint sitting of both Houses of Parliament.
Lakln ds nksuksa lnuksa dh la;qDr cSBd
¼ii½ Position of Prime Minister in comparison to other members of Council of
Ministers.
Ekaf=ifj’kn ds vU; lnL;ksa dh rqyuk esa iz/kku ea=h dh fLFkfr
¼iii½ Qualifications for appointment as Judge of Supreme Court
mPpre U;k;ky; ds U;k;k/kh”k in ij fu;qfDr gsrq ;ksX;rk,a
2012
Long Question
Q.1 What do you understand by Parliamentary Privileges ? Discuss in the light of provisions enshrined
under the Constitution of India.
lalnh; fo”ks’kkf/kdkj ls vki D;k le>rs gSa \ Hkkjrh; lafo/kku esa mfYyf[kr micU/kksa ds izdk”k esa
foospuk dhft,A
Q.2 Write explanatory notes on the following : fuEufyf[kr ij O;k[;kRed fVIif.k;ka fyf[k;s
¼a½ Ordinance making power the President jk’Vªifr ds v/;kns”k izk[;kfir djus dh “kfDr
¼b½ Doctrine of Political Question. jktuhfrd iz”u dk fl)kUr
Short Question
Q.1 Write short notes on the following: fuEufyf[kr ij laf{kIr fVIif.k;k¡ fyf[k, %
¼i½ Joint sitting of Houses lnuksa dh la;qDr cSBd
21
¼ii½ Office of profit ykHk dk in
¼iii½ Judicial precedent U;kf;d iwoZ fu.kZ;
¼iv½ Ordinary bill Lkk/kkj.k fo/ks;d
¼v½ Accountability of Judiciary U;k;ikfydk dh tokcnsgh
¼vi½ Advisory jurisdiction of Supreme Court mPpre U;k;ky; dh lykgdkjh vf/kdkfjrk
2013
Long Question
Q.1 Discuss the power and position of the President under the Indian Constitution.
Hkkjrh; lafo/kku ds vUrxZr jk’Vªifr dh “kfDRk rFkk fLFkfr dh foospuk dhft,A
Q.2 Explain the Parliamentary privileges and discuss its merits and demerits in Indian Parliamentary
system.
lalnh; fo”ks’kkf/kdkjksa dh O;k[;k dhft, rFkk Hkkjrh; lalnh; O;oLFkk ds izdk”k esa blds xq.k ,oa
nks’kksa dh foospuk dhft,A
Short Question
¼i½ Court of record
vfHkys[k U;k;ky;
¼ii½ Disticntion between Money Bill and Financial Bill
/ku fo/ks;d rFkk foRrh; fo/ks;d esa vUrj
¼iii½ Principle of collective responsibility
Lkkewfgd mRrjnkf;Ro dk fl)kUr
2014
Long Question
Q.1 What do you understand by the Council of Ministers ? Explain the principles of collective
responsibility.
ea=hifj’kn ls vki D;k le>rs gSa \ ¼la;qDr½ lkewfgd mRrjnkf;Ro ds fl)kUr dh O;k[;k dhft,A
Q.2 Critically examine the Indian Parliamentary System.
Hkkjrh; lalnh; O;oLFkk dk vkykspukRed ijh{k.k dhft,A
Short Question
¼i½ Appointment of Prime Minister of India
Hkkjr ds iz/kkuea=h dh fu;qfDr
¼ii½ Rajya Sabha
jkT; lHkk
¼iii½ Ordinary Bill
lkekU; fo/ks;d
¼iv½ Advisory jurisdiction of Supreme Court
mPpre U;k;ky; dh lykgdkjh vf/kdkfjrk
2015
22
Long Question
Q.1 Discuss the Advisory Jurisdiction of Supreme Court of Indian under Article 143 of the
Indian Costitution.
Hkkjrh; lafo/kku ds vuqPNsn 143 ds vUrxZr mPpre U;k;ky; ds lykgdkjh {ks=kf/kdkj dh
foospuk dhft,A
Q.2 Discuss the origin and development of the “Doctrine of Political Question”.
ÞjktuSfrd iz”u ds fl)kUrß dh mRifRr ,oa fodkl dh foospuk dhft,A
Short Question
Q.1 Parliamentary form of Government
Lalnh; izdkj dh ljdkj
Q.2 Judicial Review
U;kf;d iqufoZyksdu
Q.3 Appointment of the Judges of Supreme Court
mPpre U;k;ky; ds U;k;/kh”kkss dh fu;qfDr
Q.4 Court of Record
vfHkys[k U;k;ky;
Q.5 Ordinance making power of the President
jk’Vªifr ds v/;kns”k izk[;kfir djus dh “kfDr
Q.6 Pardoning power of the President
jk’Vªifr ds {keknku dh “kfDr
2016
Q. 1 Write short notes on the following:
(i) Legislative Power of the President.
jk’Vªifr dh fo/kk;h “kfäA
(ii) Constitution and status of Council of States.
jkT; lHkk dh lajpuk rFkk izfLFkfrA
(iii) Joint sitting of both the Houses of Parliament.
Lkaln ds nksuksa lnukas dh la;qä cSBdA
(iv) Judicial Precedent.
U;kf;d iwoZ fu.kZ;A
(v) Definition of “Money Bill”.
Þ/ku fo/ks;dÞ dh ifjHkk’kkA
Q. 2 Discuss the extent of Executive Power of the President. Explain the position of the
President of India in the light of Constitutional Law of India.
jk’Vªifr dh dk;Zikfydk “kfä dh foLrkj dh foospuk djsaA Hkkjr dh laoS/kkfud fof/k ds izdk”k
esa Hkkjr ds jk’Vªifr dh fLFkfr dh O;k[;k djsaA
Q. 3 Explain the privileges of Parliament with the help of decided cases.
fu.khZr oknksa dh lgk;rk ls lalnh; fo”ks’kkf/kdkjksa dh O;k[;k djsaA
23
2017
Long Question
Q.1. Discuss the inter-relation between two houses of Parliament in the light of their respective powers and
functions.
Lkaln ds nksuksa lnuksa dh “kfä;ksa o dk;ksZa ds ifjizs{; esa muds vURklZEcU/kksa dh foospuk dhft,A
Q.2. Write an explanatory note on the ‘Doctrine of Political Question’.
^jktuSfrd iz”u ds fl)kUr^ ij ,d O;k[;kRed ys[k fyf[k,A
Short Question
Q.1. Judicial review
U;kf;d iqufoZyksdu
Q.2. Collective responsibility of Council of Ministers
efU=ifj’kn dk lkewfgd mÙkjnkf;Ro
Q.3. Pardoning power of the President
jk’Vªifr ds {keknku dh “kfä
Q.4. Qualification for appointment as Judge of the Supreme Court
mPpre U;k;ky; ds U;k;k/kh”k in ij fu;qfä gsrq ;ksX;rk,a
2018
Long Question
Q.1. What do you mean by parliamentary privileges? With the help of relevant cases discuss the relationship
between parliamentary privileges and fundamental right.
Lkalnh; fo”ks’kkf/kdkj ls vki D;k le>rs gSa\ lqlaxr oknksa dh lgk;rk ls lalnh; fo”ks’kkf/kdkj ,oa ewy vf/kdkj
ds chp lEcU/k dh ppkZ dhft,A
Q.2. Discuss the appeallet jurisdiction of Supreme Court.
loksZPp U;k;ky; ds vihyh; {ks=kf/kdkj dh ppkZ dhft,A
Short Question
1. Pardoning power of president
jk’Vªifr dh {keknku dh “kfä
2. Doctrine of political question
jktuSfrd iz”u dk fl)kUr
3. Curative Petition
mipkjkRed okn
4. Pro-tem speaker
Ikzks&Vse Lihdj
Unit-III
Q.1 What privileges are available to the Houses of Parliament under Article 105. When judiciary can
interfere in the exercise of these privileges.
lafo/kku ds vuqPNsn 105 ds v/khu laln ds lnuksa dks dksu&dkSu fo”ks’kkf/kdkj miyC/k gSa ]dc bu
fo”ks’kkf/kdkjksa dk iz;ksx esa U;k;ky; gLr{ksi dj ldrk gSA
Q.2 Discuss the powers and positions of the President under the Indian Constitution.
Hkkjrh; lafo/kku ds vUrxZr jk’Vªifr dh “kfDRk rFkk fLFkfr dh foospuk dhft,A
Q. 3- Explain the concept of Judicial review as a basic structure with the help of leading Supreme Court
cases.
U;kf;d iqufoZyksdu lafo/kku dk vk/kkjHkwr <kapk gSA mPPre U;k;ky; ds fu.khZr oknksa dh lgk;rk
ls O;k[;k dhft,A
Constitution Law
Unit-III
Answers
24
Long Answers:-
Q.1- What privileges are available to House of Parliament under Article 105? When judiciary can interfere
in exercise of these privileges?
Ans.-
1. Parliamentary Privileges
(A. 105)
1. Freedom of speech
2. Right to publication of its proceedings
3. Freedom from arrest
4. Freedom from attendance as witness
5. Right to exclude stranger from its proceedings and to hold secret session
6. Right to prohibit the publication of its report and proceedings.
7. Right to regulate internal proceedings
8. Right to punish members or outsiders for contempt.
Parliamentary Privilege is defined by Sir T.F. May as “Some of the peculiar rights enjoyed by each House
collectively as a constituent part of the Parliament and by the members of each House individually, without which
they could not discharge their functions and which exceed those possessed by other bodies or individuals.”
The Constitutional provisions regarding privileges of the State Legislature and Parliament are identical. Articles
105 and 194 provides for privileges of the Legislature in India. While Article 105 deals with Parliament, Art. 194
deals with State Legislatures. The Constitution expressly mentions two privileges (a) freedom of speech in the
Legislature and (b) right of publication of its proceedings.
(a) Freedom of Speech – In England this privilege of the House of Commons is well established. It has been
given statutory recognition by Bill of Rights in 1689 which says that the freedom of speech or debates in
Parliament ought not be impeached or questioned in any court or out of Parliament. Article 105, Clause (1)
expressly safeguards freedom of speech in Parliament. It says that “there shall be freedom of speech in
Parliament”. Clause (2) further provides 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.” The
Constitution itself imposes another limitation upon the freedom of speech in Parliament namely, that no
discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of
the High Court in the discharge of his duties except upon a motion for presenting an address to the President
praying for the removal of the Judge (Art 121).
(b) Right of Publication of its proceedings – Art 105(2) expressly provides 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 the publication by or under the authority of
either House of Parliament, in any report, paper, votes or proceedings. The protection under this Article does
not extent to publication made by a private person without the authority of a House. In Surendra v.
Nabakrishna AIR 1958 Orissa, 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 ahs
the deepest interest in knowing what passes in Parliament, if a true report of parliamentary proceedings are
published in a newspaper. Accordingly, the Parliamentary proceedings (Protection of the Publication) Act
1956 was passed which provided that no person shall be liable to any proceedings civil or criminal in any
court in respect of the publication of substantially true report the proceedings of either House of Parliament
unless it is proved that publication of such proceeding expressly ordered to be expunged by the speaker. This
Act was repealed by the Congress Government during 1975 Emergency. The Janata Government repealed the
Amendment Act of 1976 and restored the freedom of the Press to publish true reports of Parliamentary
proceedings without prior permission of the Legislature.
25
In P.V. Narsimha Rao v. State (CBI/SPF) a five- judge Bench of the Supreme Court by 3:2 majority has held
that the scope of protection of immunity available to the Members of Parliament is quite wide and is not
confined only against judicial proceedings but is available to them against all civil action and criminal
proceedings but is available to them against all civil action and criminal proceedings for anything said or any
vote given by them in the House of Parliament. The object of the protection is to enable members to speak
their mind in Parliament freely and fearlessly. The court held that the MPs who had taken bribe and voted in
Parliament against no confidence motion brought against the Narshima Rao Government are entitled to the
protection under Article 105(2) and are not answerable in a court of law for alleged conspiracy and agreement.
But the MPs who had given bribe but not voted on the no-confidence motion are not entitled to the protection
of Art 105(2) and an action can be initiated against them under the relevant law.
Other Privileges: As regard privileges relating to other matters, the position, as it stands after the 44 th
Amendment 1978, is as follows – “The Privileges of member of our Parliament shall be those of that House and
its members and Committees immediately before the coming into force of the Constitution (44th Amendment) Act,
1978” in Cl. (3) of Art. 105. The 44th Amendment thus retains 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.
(i) 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 member is arrested within this period he should be released so that he might be free to attend
Parliament. This immunity is however, confined to arrest in civil cases and does not extent to arrest in criminal
cases or under the law of Preventive Detention or for the contempt of Court. If a member of a House commits
crime he will be arrested like an ordinary person. In K. Anandan Nambiar v. Chief Secretary to Government
of Madras, the Court held that an MP detained under Defense of India Rules 1962 would be treated as an
ordinary citizen. He cannot claim the privilege which is given to the Member of Parliament.
ii) Freedom from Attendance as witness: According to the English practice, a member cannot be
summoned, without the leave of the House to give evidence as a witness while Parliament is in session.
iii) Right to exclude stranger from its proceedings and to hold secret sessions: This right has been used by
the House of Parliament in England to go into secret session to discuss some important matters. The House of
Parliament in India enjoys similar power. However, in modern times secret sessions are held only on exceptional
occasions because the voters must be kept informed to what their representatives are doing in the Legislature.
iv) Right to prohibit the 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,
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.
The effect in law of the order of the speaker to expunge a portion of the speech of a member may be as if that
portion has not been spoken. In India, the House of Parliament has definitely the power to prohibit the publication
of the proceedings.
v) Rights to regulate internal proceedings: Each House of Parliament has the right to control and regulate its
proceedings and also to decide any matter arising within its walls, without interference from the Courts. What is
said or done within the walls of Parliament cannot be inquired in a Court of Law.
vi) Right to Punish Members or Outsiders for contempt: Each House of Parliament can punish for contempt
or breach of its privileges, and the punishment may take the form of admonition, reprimand or imprisonment.
Thus, in the famous Blitz Case, the Editor of the newspaper was called to the Bar of the House of People. In
1990, Sri K.K.Tiwari , a former Minister was reprimanded by the Rajya Sabha. What constitutes breach of
privileges or contempt of Parliament has been fairly settled by a number of precedents in England and in
India.
26
PRIVILEGES AND COURTS: This matter came up for consideration before the Supreme Court in the famous
advisory opinion In re Under Art. 143. In this case one Keshava Singh who was not a member of the U.P.
Assembly was held guilty of contempt of the House and was sentenced to imprisonment for 7 days. On behalf of
Keshava Singh, Mr. Soloman, his advocate, moved a habeas corpus petition alleging that his detention was illegal
and mala fide because he was not given an opportunity to defend himself. The petition was heard by the Bench
of two judges of the Allahabad High Court which granted an interim bail to Keshava Singh and he was released,
pending decision of the case on merit. The Assembly then passed a resolution that the two judges, Keshava Singh
and his advocate, had committed contempt of the House and directed Keshava Singh be immediately taken into
custody and the two judges and the advocate be brought into custody before the House. On this the two judges
and the advocate separately moved the petition under Art. 226 in the High Court contending that the resolution
amounted to Contempt of Court and that it be set aside and its implementation are stayed by interim order. The
petition was heard by the Full Bench which passed an interim order directing the stay of implementation of the
Resolution of Assembly. The warrant of arrest against the two judges was withdrawn but they were asked to
appear before the House and explain their conduct. The High Court again granted a stay against the
implementation of this modified form of the resolution. At this stage the President of India referred the matter to
the Supreme Court under Art. 143 for its advisory opinion.
The main question involved in this controversy was – whether the Legislature is the sole and exclusive judge of
its privileges and whether it is competent to punish a person for its contempt taking place outside the legislature?
Whether the High Court who entertained a petition of habeas corpus challenging the validity of the detention of
a person sentenced by the Assembly under a general or unspeaking warrant had committed contempt of the
Legislature?
The Supreme Court by a majority of 6 to 1 held that the two Judges were not guilty of committing contempt of
the House by issuing an interim bail order. Under Art. 226 a Court has jurisdiction to order the release of a person
from illegal detention. The Court said that the courts in India can examine into the validity of a general warrant
issued by the House of Commons, the Court held that such a right is not conferred on Legislature in India. The
House of Commons is the highest Court in England and as a result a general warrant issued by it is not subject to
scrutiny by other courts. In India, Legislatures never discharged any judicial function and their historical and
constitutional background does not support the claim to be regarded as Courts of Record. Hence, the very basis
on which the English Courts treat a general warrant issued by the House of Commons is absent in India.
In construing the powers and privileges under Art. 194(3), other provisions of the Constitution must also be
considered harmoniously. 226 confers wide power on High Courts to issue writ of Habeas Corpus against any
authority which according to Art. 12 include the legislature and so the High Court can exercise its power even
against the Legislature. Article 121 prohibits any discussions in a State Legislature with respect to the conduct of
any Judge of the Supreme Court or High Court in discharge of his duties.
The powers that the House can claim must be shown to have subsisted in the House of Commons on the 26 th
January, 1950 and it should be further shown that such claim was recognized by the England Courts. Secondly,
not all the powers and the privileges which belonged to the House of Commons on 26 th January, 1950, can be
claimed by the State Legislature under Art. 194(3).
It cannot be disputed that in matters of privileges the House is the sole and exclusive Judge provided such privilege
can be found in Art. 194(3). The question whether a privilege as claimed by the House is provided by Art. 194
(3) or not is a matter for the Court to decide. In other words, the determination of nature and scope of Art. 194(3)
lies with the Court.
__________________________________________________________________________________________
Q.2- Discuss the power & position of the President in India.
Ans.-
1. Power and Position of President
a. President is head of Executive Functions and powers of the president.
i. Executive functions
ii. Military functions 27
iii. Diplomatic functions
iv. Legislative functions
v. Emergency functions
Article 52 of the Indian Constitution says that there shall be a President of India. He is the head of the State.
Article 53 says, “The executive power of the Union shall be vested in the President and it shall be exercised by
him in accordance with the Constitution either directly or through Officers subordinate to him”. The expression
‘Executive Power' is not defined in the constitution. It has been held in Emperor v. Sibnath Banerjee, (AIR 1954
SC 156), that the expression “officers subordinates to him” includes ministers also.
President’s Executive Powers:
The Constitution has been conferred extensive executive powers on the President. The executive power of the
Union of India is vested in him. He is the Head of the Indian Republic. All executive functions are executed in
the name of the President, authenticated in such manner as may be prescribed by rules to be made by the President
(Article 77).
He has the power to appoint the Prime Minister and on his advice other Ministers of the Union, the Judges of the
Supreme Court and the High Courts, the Governors of the States, the Attorney General, the Comptroller and
Auditor General , the Chairman and the members of the Public Service Commission , the members of the Finance
Commission and Official Commissions, Special Officers for Schedule Castes and Schedule tribes, Commission
to investigate into the condition of backward classes, Special Officer for linguistic Minorities.
The above mentioned officials hold their office during the pleasure of the President. This means that he has the
power to remove them from their post. This power is, however, to be exercised subject to the procedure prescribed
by the Constitution. It is, however, to be noted that he as to exercise his executive powers on the aid and advice
of the Council of Ministers. But there is little constitutional limitation under which he has to exercise his executive
powers. These are as follows:-
Firstly, he must exercise these powers according to the Art 53(1) of the Constitution.
Thus Art. 75 (1) explicitly requires that ministers (other than the Prime Minister) can be appointed by the President
only on the aid and advice of the Prime Minister. There will be a violation of this provision if the President
appoints a person as Minister from outside the list submitted by the Prime Minister. If the President violates any
of the Mandatory provisions of the Constitution, he will be liable to be removed by the process of impeachment.
Secondly, Prior to 1976, there was no express provision in the Constitution that the President was bound to act
in accordance with the advise tendered by the Council of Ministers, though it was judicially established in
Shamser Singh v. State of Pubjab (AIR 1975 SC 2192) and Rao v. Indira (AIR 1971 SC 1002), that the President
of India was not a real executive, but only a Constitutional Head, who was bound to act according to the advice
of Ministers, so long as they commanded the confidence of the majority in the House of the People ( Lok Sabha)
[Art. 75(3)].
The 42nd Amendment Act 1976 amended Art. 74(1) to clarify this position. Now Article 74(1) as so amended
reads as:
“There shall be a Council of Ministers with the Prime Minister at the to aid and advice the President who
shall in the exercise of his functions, act in accordance with such advice”.
The word ‘shall’ makes it obligatory for the President to act in accordance with ministerial advice.
The Janata Government retained the foregoing text of Art. 74(1) as amended by the 42 nd Amendment Act. But
by the 44th Amendment Act, a proviso was added to the Art. 74(1) as follows:
28
“Provided that the President may require the council of Ministers to reconsider such advice, either
generally or otherwise, and the President shall act in accordance with the advice tendered after such
reconsideration”.
The conclusion drawn after the 44th Amendment Act, therefore, is that except in certain marginal cases referred
to by the Supreme Court; the President shall have no power to act on his discretion in any case. He must act
according to the advice given to him by the Council of Ministers, headed by the Prime Ministers so that refusal
to act according to such advice will render him liable to impeachment for violation of the Constitution. This is
subject to the President’s power to send the advice received from the Council of Ministers in a particular case,
back to them for their reconsideration; and if the Council of Ministers adheres to their previous advice, the
President shall have no other option but to act in accordance with such advice. The power to return for
reconsideration can be exercised only once, on a single matter.
Therefore, it can be said that; the powers of the President are the executive powers of his Council of Ministers
headed by the Prime Minister. Though the President may be the Head of the Executive Officers of the Union ,
but the ‘real’ head of the executive officers of the Union shall be his subordinate [Art 53(1)] and he shall have a
right to be informed of the affairs of the Union [Art 78(b)].
As the head of the Union Executive stands the President of India, Art.52 of the Indian Constitution says that “there
shall be a President of India, who is the Head of the State. Under Art 53 of the Constitution says that "the executive
powers of the Union shall be vested in the President”. The President of India shall thus be the head of the executive
power of the Union.
Function and Powers of the President:
1. Executive Powers: The Constitution has conferred extensive executive powers on the President. The
executive power of the Union of India is vested in him. He is the Head of the Indian Republic. The
President cannot control or supervise the departments of the government as the American President does,
but though the various Departments are controlled by the Ministers in charge, President remain as the
formal Head. All executive function are executed in the name of the President, authenticated in such
manner as may be prescribed by rules to be made by the President (Art 77). For the same reason all
contracts and assurances of property made on behalf of the Government of India must be expressed to
be made by the President and executed in such manner as the President may direct or authorize (Art 299).
The executive powers also includes that he has powers to appoint and remove the high dignitaries.
2. Military Powers: The President is the Supreme Commander of the Defense Forces of the Country. He
has powers to declare war and peace. However, the exercise of these powers by the President is ‘regulated
by law’. The parliament is empowered to regulate or control the exercise of the military powers of the
President. The Military Power of the President is thus subordinate to his executive powers which are
exercisable by him on the advice of the Cabinet.
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 concluded in the
name of the President though subject to ratification by Parliament.
4. Legislative Powers: The legislative powers of the Indian President, according to ministerial advice
[Art 74(1)] are various such as Summoning, Prorogation, Dissolution. Like the English Crown our
President shall have the power to summon or prorogue the Houses of Parliament and to dissolve the
Lower House. The Council of States, also called the Upper House, is not subject to dissolution. It is a
permanent body. One third of its members retire every two years [Art. 83(1)]. If there is a conflict
between the two Houses of Parliament over an ordinary bill he can call a joint sitting of both the houses,
to resolve the deadlock (Art.108). He may send message to either of the Houses of Parliament (Art 86).
Every Bill passed by both House of Parliament is sent to the President for his assent. (Art-111).
5. Emergency Powers: Part XVIII (i.e. Articles 352 to 360) of the Constitution arms the President with
enormous emergency powers. The emergencies envisaged under the Constitution are of three kinds: 1.
Emergency arising out of war, external aggression or armed rebellion (Art. 352), 2. Emergency due to
failure of Constitutional Machinery in the State (Art. 356), and 3. Financial Emergency (Art. 360).
29
6. Veto Powers: A Bill will not become an Act of the Indian Parliament unless and until it receives the
assent of the President. When a Bill is presented to the President, after its passage in both the Houses of
Parliament, the President shall be entitled to take any of the following three steps:
i. He may declare his assent to the Bill,
ii. He may declare that he withholds his assent to the Bill or
iii. He may, in the case of Bills other than the Money Bills, return the Bill for reconsideration of
the houses, without message suggesting amendments. (A money Bill cannot be returned for
reconsideration).
In case, if the Bill is passed again by both the houses of Parliament with or without amendment and again
presented to the President, it would be obligatory for the President to declare to his assent to it (Art 111). Other
forms of the executive veto have been classified as absolute, qualified, suspense and pockets veto. But the
President can only exercise the Pocket Veto.
7. Ordinance Making Power: The President shall have the power to legislate by Ordinance at a time when
it is not possible to have a Parliamentary enactment on any subject immediately (Art 123). The ambit of
this ordinance making power of the President is co-extensive with the legislative powers of the
Parliament, that is to say, it may relate to any subject in respect of which Parliament has the right to
legislate and is subject to the same constitutional limitation as legislation by Parliament. Thus, an
ordinance cannot contravene the Fundamental Rights any more than an Act of Parliament.
An Ordinance shall be of temporary duration. This independent power of the executive to legislative by
ordinance is a relic of the Govt. of India Act, 1935 but the provisions of the constitution differs from that of
the Act of 1935 in several material respects as follows: Firstly, this power is to be exercise by the President
on the advice of his Council of Ministers and not in the exercise of his individual ‘ judgment’ as the Governor-
General was empowered to act, under the Government of India Act 1935. Secondly, the Ordinance must
be laid before the Parliament when it reassembles, and shall automatically cease to have effect at the
expiration of six weeks from the date of re-assembly unless disapproved earlier by Parliament. In other words
an Ordinance can exist only up to six weeks from the date of re-assembly. If the houses are summoned to
re-assemble on different dates the period of six weeks is to be counted from the later of those dates.
Thirdly, the Ordinance-making power will be available to the President only when either of the two houses
of Parliament has been prorogued or is otherwise not in session, so that it is not possible to have a law
enacted by Parliament. He shall have no such power while both Houses of Parliament are in session. Clause
(1) of the Art 123 says ‘ If at any time except when both the houses of parliament are in session, the President
is satisfied that circumstances exists which render it necessary for him to take immediate action, he may
promulgate such ordinance as the circumstances appear to him to require’.
8. Pardoning Power: Under Article 72, the President has power to grant pardons, reprieves, respites and
remission of punishment or to suspend remit or commute the sentence of any person convicted of any
offence: A. By Court Martial : B. An Offence against any law relating to a matter of which the executive
power of the Union Extends; or C. In all cases in which the sentences is of death.
In Jumman Khan Vs. State of UP (1991) SCC 752, the petitioner was convicted of death sentence by the
Session Judge for committing rape of a six years old girl and strangulating her to death. Sentence which was
confirmed by the High Court, his special leave petition to the Supreme Court was also rejected. His petition
for pardon was rejected by the Governor on Feb 1988. The mercy petition addressed to the President was
rejected by the Ministry of Home Affairs. It was argued that the mercy petition rejected by the President
require reconsideration. It was held that after examining the same carefully the Court found no ground to
interfere.
In the result, the President shall have the pardoning power in respect of
i. All cases of punishment by a Court Martial (the Governor shall have no such powers).
But though the Governor has no power to pardon a sentence of death. This power is left by intact the
Constitution, with regard to suspension, remission or commutation, the Governor shall have a concurrent
jurisdiction with the President. Thus, the above mentioned are the functions and powers of the President of India.
__________________________________________________________________________________________
30
Q. 3- Explain the concept of judicial review as a basic structure with the help of leading Supreme Court
cases.
Ans.
1. Judicial Review
(A. 13, 32, 226)
Judicial Review refers to the power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive valid, if it finds them in
conflict the constitution of India.
2. Features of Judicial Review

i. This power is used by S.C. & H.C.
ii. Judicial Review possible in both Central and State Law.
iii. No Judicial Review about 9th Schedule.
iv. It covers law and not political issue.
v. Judicial Review is not automatic.
vi. Judicial Review decision gets implemented from the date of judgment.
• Centre for PIL V. Union of India
3. Judicial Review is itself a basic feature of the Constitution and no restriction can be
imposed on the power of S.C. and H.C. regards to the enforcement of fundamental
rights of the citizens which is important and cannot be extinguished by
constitutional or statutory provisions.
Article 32 and 226 : Judicial Review : Basic features of Constitution cannot be curtailed by Act of
Parliament and Constitutional Provisions—Centre for PIL v. Union of India the two writ petition were filed
under Article 32 of the Constitution challenging the appointment of P.J. Thomas as IAS, the respondent as Central
Vigilance Commissioner under Section 4(1) of the Central Vigilance Commission Act, 2003 against whom a
criminal case was pending in the Court of Special Judge for the offence under Section 13(1) of the Prevention of
Corruption Act, 1988 read with Section 120-B of IPC (in Polmolein import case). The petitioners also alleged
that P.J. Thomas had also played a big part in the cover up of the 2G Spectrum allocation which matter was sub-
judice. The Supreme Court confined its judgment strictly on the legality of selection and recommendation of the
appointment by High Powered Committee (HPC) and it clarified that any reference in the judgment should not
be understood as observations on the merits of the case. Under Section 4 of the Vigilance Commission Act, 2003,
the service conditions of the candidate being a public servant or civil servant in the past was not the sole criteria.
The HPC must also take into account the question of institutional competency. If the selection adversely affects
institutional competency and functioning, it is the duty of the selection committee not to recommend such a
candidate. While recommending the name of P.J. Thomas the institutional integrity of the C.V.C. was not kept in
mind. The HPC had to take into consideration the institutional competence, the values and impartiality of the
institutions and had also to take an informed decision keeping in mind the above mentioned vital aspects. The
Supreme Court to which the prayer was med to issue the writ of quo waraanto or any other writ, direction or
order which the Court might deem fit and proper in the facts and circumstances of the case declared the
recommendations of the name of P.J. Thomas as non-est in law and quashed his appointment. While issuing
guidance/directions, the Court through Chief Justice S.H. Kapadia held—nothing prevents this Court, if so
satisfied, form issuing a writ of declaration. As recommendation of the HPC and consequently the appointment
of P.J. Thomas was in contravention of the provisions of Central Vigilance Commission Act, 2003 there is no
merit in submissions advanced on behalf of respondent No.2 on non maintainability of writ petition. If public
duties are to be enforced and rights and interests are to be protected, the Court may, in furtherance of public
31
interest, consider it necessary to inquire into the State of affairs of the subject-matter of litigation in the interest
of justice. The Government is not accountable to the Courts in respect of the lawfulness/legality of its decisions
when impugned under judicial review jurisdiction.
In a landmark judgment in State of W.B. v Committee for Protection of Democratic Rights, West Bengal,
the complainant along with numbers of workers of political party had been staying in camps of Garpita, District
Midanapur, State of West Bengal. They decided to return their homes from such camp. In the way, they were
attacked by some miscreants numbering 50-60 with fire arms which resulted in the death of 11 workers and
injured many members. The complainant however, managed to escape and lodged the First Information Report
with the Police. D.G.P., West Bengal took over the investigations of the case. A writ petition under Article 226
was filed in the High Court of Calcutta by the Committee for Protection of Democratic Rights. West Bengal in
as Public Interest Litigation alleging that three months had passed after the incident yet no serious attempt had
been taken to investigate the crime. Since the Police administration was in the State’s had which was under the
influence of the ruling party which was trying to hide the incident to save its image the investigation be handed
over to the C.B.I. or an independent agency. The High Court on the basis of the affidavit of the State felt that
there is no hope for justice in investigating the crime by the State police and if it was conducted fairly it would
be involved with suspicion because all the assailants were members of the ruling party. In view of this the High
Court held it appropriate to hand over the investigation to the CBI. Aggrieved by this, the State Government filed
a SPL in the Supreme Court.
The main question for consideration was whether the High Court in exercise of its jurisdiction under
Article 226 can direct the CBI established under the Delhi Special Police Act to investigate a cognizable offence
which took place in the State of West Bengal, without the consent of the State Government. It was argued by the
State referring to Entry 80 of List I of the Tenth Schedule and Entry 2 of List II and Section 5 and 6 of the Special
Police Act that on these constitutional and statutory provisions that there is a complete restriction on Parliament’s
legislative power in enacting any law permitting the police of one State to investigate an offence committed in
another State, without the consent of that State. It was also said that the separation of powers between the three
organs of the State requires that such organs to confine itself within the filed allotted to it by the Constitution.
Thus the main argument was that the federal structure as well as the principles of separation of powers being a
part of the basic structure of the Constitution neither the Central Government can encroach upon the legislative
power of the State in List II nor can the superior Courts exercise such jurisdiction which is prohibited by the
Constitution. In brief, the High Court issue any direction ignoring the statutory and constitutional provisions. On
behalf the Union of India, it was argued that the alleged restriction on Parliament’s legislative power under Entry
80 to List I and under Section 6 of the Special Police Act do not apply to the Supreme Court to exercise their
powers under Article 32 and Article 226 of the Constitution as it is the obligation of the superior Courts to protect
the citizens and enforcing fundamental rights. A five judge constitutional bench of the Court consisting of (CJI
K.G. Balkrishanan, R.V. Raveendran D.K. Jain, P. Sathasivam and J.M. Panchal, JJ.) unanimously held that the
argument that the exercise of the Supreme Court and High Courts to order the investigation by the CBI without
consent of the State Government would violate the federal structure of the Constitution is also wrong as it
overlooks the basic fact that in a federal structure it is the duty of the Courts to uphold the constitutional values
and enforce the constitutional limitations as the ultimate interpreter of the Constitution. Judicial review is itself
a basic feature of the Constitution and no restriction can be imposed on the powers of the Supreme Court
and the High Courts with regard to the enforcement of fundamental rights of the citizens which is inherent
and cannot be extinguished by constitutional or statutory provisions. The scheme of the distribution of
powers between the Centre and State as provided in the Constitution itself gives primacy to the Centre on the
State. The words “notwithstanding anything contained in Clauses (2) and (3)” in Article 246 lays down the
principle of federal supremacy. In federal set up the constitution is Supreme and all organs of the State derive
their authority from the Constitution. This supremacy of the Constitution is protected by the authority of an
independent judiciary. The principle of separation of powers cannot curtail the powers of the judicial review. In
view of this, the direction of the High Court in exercise of its powers under Article 226 to the CBI to investigate
a cognizable offence alleged to have taken place in another state without the consent of the State will not violate
upon the federal structure of the Constitution and the doctrine of separation of powers. Being protector of civil
32
liberties the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation
to protect fundamental rights guaranteed by Part III of the Constitution in general and Article 21 in particular,
jealously and vigilantly. However, the Court warned that this extraordinary powers must be exercised sparingly,
cautiously and in exceptional situations where it becomes necessary to prove credibility and instill confidence in
investigation or where the incident may have national and international ramifications or where such an order may
be necessary for doing complete justice and enforcing the fundamental rights.
33
Constitution Law
UNIT- IV
Syllabus
Emergency Provisions. Amendment of Constitution, Doctrine of Basic Structure, Contractual and
Tortious Liability of State, Right to Property and Freedom of Trade & Commerce.
Act : The Constitution of India, 1950.
2011
Long Question
Q.1 Examine briefly the freedom of trade, commerce and intercourse under the Constitution of
India. Refer to relevant cases.
Hkkjr ds lafo/kku }kjk iznRr O;kikj] okf.kT; rFkk lekxe dh Lora=rk dh laf{kIr O;k[;k dhft,A
lqlaxr oknksa dk mYys[k dhft,A
Q.2 Discuss the procedure for amendment of the Constitution. Can fundamental rights be
curtailed by amending the constitution?
Hkkjrh; lafo/kku esa la”kks/ku djus dh izfØ;k dk mYys[k dhft,A D;k lafo/kku esa la”kks/ku
djds ewy vf/kdkjksa dks de fd;k tk ldrk gS \
Short Question
¼i½ Effects of proclamation of Emergency under article 352 on fundamental rights.
vuqPNsn 352 ds vUrxZr mn~?kksf’kr vkikrfLFkfr dk ekSfyd vf/kdkjksa ij izHkko
¼ii½ Contractual liability of State
jkT; dk lafonkRed nkf;Ro
¼iii½ Right to property as one Constitutional rights.
,d lafo/kkfud vf/kdkj ds :Ik esa lEifRr dk vf/kdkjA
2012
Long Question
Q.1 Discuss the procedure for amendment in the constitution. Can fundamental rights be
amended? Explain.
Lkafo/kku la”kks/ku dh izfØ;k dh foospuk dhft,A D;k ekSfyd vf/kdkjksa esa la”kks/ku fd;k
tk ldrk gS \ O;k[;k dhft,A
Q.2 Discuss the Tortious liability of State as enshrined under the Indian constitution, with the
help of decided cases.
fu.khZr oknksa dh lgk;rk ls Hkkjrh; laafo/kku esa vUrxZr mfYyf[kr jkT; ds vizd`fR;d nkf;Ro
dh foospuk dhft,A
2013
Long Question
Q.1 “Judicial review is a basic structure of the Indian Constitution. “Discuss with the help of
decided cases.
34
ÞU;kf;d iqufoZyksdu Hkkjrh; lafo/kku dk vk/kkjHkwr <kapk gSAß fu.khZr oknksa dh lgk;rk
ls bldh foospuk dhft,A
Q.2 Write an essay on emergency provisions.
vkikr micU/kksa ij ,d ys[k fyf[k,A
Short Question
¼i½ Article 356 of the Indian Constitution
Hkkjrh; lafo/kku dk vuqPNsn 356
2014
Long Question
Q.1 Discuss the tortuous liability of state enshrined under the Indian Constitution with
Illustration.
n`’VkUrksa dh lgk;rk ls Hkkjrh; lafo/kku ds vUrxZr fufgr jkT; ds vid`fR;d nkf;Roksa dh
foospuk dhft,A
Q.2 Discuss the provisions of the Indian constitution regarding the proclaimation of emergency
due to failure of Constitutional Machinery.
laoS/kkfud ra= dh foQyrk ds vk/kkj ij vkikr mn~?kks’k.kk dh foospuk Hkkjrh; lafo/kku ds
micU/kksa ds vuqlkj dhft,A
Short Question
¼i½ Distinction between tax and fee
Hkkjrh; lafo/kku dk vuqPNsn 356
2015
Long Question
Q.1 “Freedom of Trade, Commerce and Inter course is an essential element of Federal
Constitution.” Discuss.
ÞO;kikj] okf.kT; ,oa lekxe dh Lora=rk la?kkRed lafo/kku dk ,d vko”;d rRo gSAß foospuk
dhft,A
Q.2 Discuss the power and procedure of Parliament to Amend the Constitution. To which
extent Parliament is empowered to Amend the Constitution, Explain.
llan ds lafo/kku la”kks/ku dh izfØ;k ,oa “kfDr dh foospuk djsaA fdl lhek rd laln dks
lafo/kku la”kks/ku dh “kfDr gS] O;k[;k djsaA
Short Question
Q.1 Sovereign and Non Sovereign Function
laizHkq ,oa vlaizHkq dk;Z
2016
Q. 1. Write short notes on the following:
(i) Theory of “Basic structure”.
35
Þvk/kkjHkwr <k¡psÞ dk fl)kUrA
Q. 2. Discuss the contractualliability of the state under the Indian Constitution. Explain with
the help of decided case law.
Hkkjrh; lafo/kku ds vUrxZr jkT; ds lafonkRed nkf;Ro dh foospuk djsaA fu.kZ;t fof/k ds
fl)kUrksa dh lgk;rk ls O;k[;k djsaA
Q. 3. Is right to property of Fundamental Right? What difference has been made out after 44th
Amendment of the Constitution? Discuss.
D;k lEifÙk dk vf/kdkj ,d ekSfyd vf/kdkj gS\ lafo/kku ds pkSokfylosa la”kks/ku ds Ik”pkr~
D;k vUrj gks x;k gSA foospuk djsaA
2017
Long Question
Q.1. Fix the line of balance between amendment of the Constitution and concept of basic structure. Refer
decided cases.
Lkafo/kku la”kks/ku ,oa ewy <k¡ps dh vo/kkj.kk ds e/; leUo; js[kk dks fuf”pr dhft,A fu.khZr oknksa dks
lanfHkZr dhft,A
Q.2. Examine the freedom of trade, commerce and intercourse under the Constitution of India. Refer to
relevant cases.
Hkkjr ds lafo/kku }kjk iznÙk O;kikj] okf.kT; rFkk lekxe dh LorU=rk dh O;k[;k dhft,A lqlaxr oknksa dks
lanfHkZr dhft,A
Short Question
Q.1. Article 356
vuqPNsn 356
2018
Long Question
Q.1. What do you mean by ‘Proclamation of Emergency’? Explain the effect of proclamation of emergency
on fundamental right.
^vkikr mn~?kks’k.kk^ ls vki D;k le>rs gSa\ vkikr mn~?kks’k.kk ds ewy vf/kdkj ij izHkko dh ppkZ dhft,A
Q.2. Discuss the procedure for amendment of constitution under Art. 368. What are the provisions of
constitution in which ratification by states are required for amendment? Explain.
vuqPNsn] 368 ds vUrxZr lafo/kku la”kks/ku dh izfØ;k dh ppkZ dhft,A lafo/kku ds os dkSu&dkSu ls
izko/kku gSa ftlesa la”kks/ku gsrq jkT;ksa ds vuqleFkZu dh vko”;drk gksrh gS\ O;k[;k dhft,A
Short Question
1. Right to property
lEifÙk dk vf/kdkj
2. Doctrine of prospective overruling
Hkfo’;y{kh fl)kUr
Unit-IV
Q.1 Enumerate emergency provisions of the Constitution. What safe-guards have been provided in the
Constitution to prevent the misuse of those provisions?
Lkafo/kku ds vkikr laca/kksa dks izxf.kr dhft,A bu izkfo/kkuksa dk nq#i;ksx jksdus ds fy, lafo/kku eas dkSu
ls lqj{kk mik; izkfo/kkfur fd;s x;s gSaA
Q.2 Fix the line of balance between amendment of Constitution and concept of basic structure.
lafo/kku la”kks/ku ,oa ewy <kaps dh vo/kkj.kk ds chp leUo; js[kk dks fuf”pr dhft,A
36
Q.3 What is the extent of contractual and tortuous liability of State for the wrongful acts of its employees ?
Is distinction between sovereign and non-sovereign function still hold water ? Refer to case law.
vius lsodksa ds nks’kiw.kZ dk;ksZa ds fy, jkT; ds lafonkRed nkf;Ro ,oa nq’d`fr&nkf;Ro dk foLrkj D;k gS \ D;k
lEizHkq rFkk vlEizqHk dk;ksZa dk foHksn vHkh Hkh ykxw gS \ fu.kZ; fof/k dk gokyk nhft,A
Answers
Long Answers:-
Q.1- Describe the provisions relating to Emergency.
Ans.- This answer shall include following points.

1. Emergency
(A. 353- 360)
Types of Emergency- 3
i. National Emergency (A. 352)
a. Proclamation – by the President
b. Grounds
• War
• External Aggression
• Armed Rebellion
ii. Effect of National Emergency
a. Executive power of the Union State extends to giving directions to any state.
b. Parliament will get power to make laws on subject that are not in Union list.
c. Fundamental Rights
• Art. 19 Ultimately suspends
• Art. 21, 21 never suspends
• Rest fundamental Rights are subject to A.359.
Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle
special situations. In emergency, the center can take full legislative and executive control of any state. It also
allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why
academicians are hesitant to call Indian constitution as fully federal. Emergency can be of three types - Due to
war, external aggression or armed rebellion, failure of constitutional machinery in a state, or financial emergency.
However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In
the second case, it is called Presidential Rule, and in the third case it is called "Proclamation of Financial
Emergency:
Proclamation of Emergency- Art 352 says that if the President is satisfied that a grave emergency exists whereby
the security of India or any part of India is threatened due to \utside aggression or armed rebellion, he may make
a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon the written advise of the
Union Cabinet. Such a proclamation must be placed before each house of the parliament and must be approved
by each house with in one month otherwise the proclamation will expire.
An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually
happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.
37
• In the case of Minerva Mills v. Union of India AIR 1980, SC held that there is no bar to judicial review of
the validity of the proclamation of emergency issued by the president under 352(1). However, court's
power is limited only to examining whether the limitations conferred by the constitution have been
observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based
on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
• Prior to 44th amendment, duration of emergency was two months initially and then after approval by the
houses, it would continue indefinitely until ended by another proclamation. However after 44th
amendment, the period is reduced to 1 month and then 6 months after approval.
Effects of Proclamation of emergency - The following are the effects arising out of proclamation of emergency
in art 352.
Art 353
1. Executive power of the Union shall extend to giving directions to any state.
2. Parliament will get power to make laws on subjects that are not in Union list.
3. If the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part
if that is also threatened.
Art 354 Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by
the president. Every law such made shall be laid before each house of the parliament.
Art 355 says that it is the duty of the Union to protect States against external aggression.
Art 358 While proclamation of emergency declaring that security of India or any part of the territory of India is
threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other
words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency.
However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very
executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the
emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after
the end of emergency.
In the case of M M Pathak v. Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not
suspended during emergency but only their operation is suspended. This means that as soon as emergency is over,
rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before
emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency
was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the
operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.
Art 359 This article provides additional power to the president while proclamation of emergency is in operation,
using which the president can, by an order, declare that the right to move any court for the enforcement of rights
conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a
shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in
relation to the emergency.
In the case of Makhan Singh v. State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown
below:
Art 359
Art 358
Fundamental rights are not suspended. Only the courts
Freedoms given by art 19 are suspended. cannot be
moved to enforce fundamental rights.
Any action done by the legislature or executive can be
Any actions done or omitted to be done cannot be
challenged
challenged even after emergency.
after the suspension is over.
Right to move courts is suspended for the period of
Art 19 is suspended for the period of emergency.
emergency or
38
until the proclamation of the president to remove
suspension.
Effective all over the country. May be confined to an area.
Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by
one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.
Provisions in case of failure of constitutional machinery is States

Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state
is cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all
or any of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority
in the state except the legislature of the state. The power of the legislature of the state shall be exercised by the
authority of the parliament.
Under this article, president can also make such incidental and consequential provisions which are necessary to
give effect to the objectives of the proclamation. This includes suspension of any provision of this constitution
relating to anybody or authority in the state.
However, this article does not authorize the president to assume the powers vested in the High Courts.
Art 357 provides that in the case of proclamation under Art. 356.
• Parliament can confer upon the president the power of legislature of the state to make laws or the power
to delegate the power to make laws to anybody else.
• The parliament or the president can confer power or impose duties on the Union or Union officers or
Union authorities.
• President can authorize the expenditure from the consolidated fund of the stat pending sanction of such
expenditure by the parliament.
Important instances of invocation of Art 356
this article has been invoked over a hundred times.
1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..
This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In this case, SC held that
the the decision of the president is not only dependent on the report of the governor but also on other information.
The decision is entirely political and rests with the executive. So it is not unconstitutional per se. However, courts
can validate the satisfaction of the president that it is no mala fide.
2. Dissolution of 9 state assemblies in 1980 by Congress party govt.
3. Dissolution of BJP govt in MP, HP, and Raj. in 1992.
This was challenged in the case of S.R. Bommai v. Union of India AIR 1994. In this case SC held that secularism
is a basic feature of the constitution and a state govt. can be dismissed on this ground. It further observed that no
party can simultaneously be a religious party as well as a political party.
Financial Emergency
Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India
or the credit of India or of any part of India is threatened, he may make a declaration to that effect. Under such
situation, the executive and legislative powers will go to the center. This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused
by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd
amendment. The following are important points of this amendments-
• "Internal disturbance" was replaced by "armed rebellion" under art 352.
• The decision of proclamation of emergency must be communicated by the Cabinet in writing.
• Proclamation of emergency must be by the houses within one month.
• To continue emergency, it must be re approved by the houses every six month.
• Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present
and voting. 1/10 of the members of a house can move such a resolution.
39
• Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon
armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358.
All other laws can still be challenged if they violate art 19.
• Art 359, under this article, suspension of the right to move courts for violation of part III will not include
art 20 and 21.
• Reversed back the term of Lok Sabha from 6 to 5 years.
__________________________________________________________________________________________
Q. 2- Fix the line of balance between amendment of constitution and concept of basic structure.
Ans.-
1. Amendment
(A. 368)
i. Amendment can be made only by the Parliament.
ii. Amendments are of three types.
a. By Simple majority
• by more than 50% of present and voting members.
Example- A. 2, 3, 169, etc.
b. By special majority
• by more than 50% of total members & 2/3 of present and voting members.
c. By special majority and ratification of 1/2 or more states.
• by the 1/2 or more states.
2. Amendment in Fundamental Right’s
• Shankari Prasad Vs. Union of India
a. Parliament can amend any part of Constitution
• Sajjan Singh Vs. State of Rajasthan
b. Parliament can amend any part of Constitution
• Golak Nath Vs. State of Punjab
c. Supreme Court has reserved the judgment of Sajjan Singh Case
d. Parliament cannot amend fundamental Right
• Keshwanand Bharti Vs. State of Kerla
e. Parliament can amend any part of constitution except the basic structure.
A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it has been argued
that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact. As a comparison,
there have been only 27 amendments in the constitution of USA in the past 200 years. This has been done
deliberately to ensure that the constitution can be changed as per the needs of the times. However, to prevent
excessive changes on the whims of the ruling party, sufficient safeguards have been put.
The procedure of amending the constitution is given in Article 368. It says that the parliament can amend the
constitution under its constituent power. A bill must be presented in either house of the parliament and must be
approved by a majority of each houses and not less than 2/3 majority of each house present and voting. After such
approval the bill is presented to the president for his assent, upon whose assent the constitution shall stand
amended as per the provisions of this article. However, if the amendment seeks to make a change in
• Articles 54, 55, 73, 162, or 241
• Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11
40
• any of the lists in the 7th schedule
• representation of the states in the parliament
• In this article itself the bill must also be ratified by not less than half of the states before it is presented to
the president for his assent.
For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the parliament is required.
Power of the parliament to amend the constitution
There has been a lot of controversy on the power of the parliament to amend the constitution. Article 13 of the
original constitution said that the state shall not make any law that takes away or abridges the rights given to the
citizens in Part III and any such law made in contravention of this article shall be deemed void to the extent of
contravention. Thus, it seemed that parliament cannot amend the constitution in a way that takes away the
fundamental rights of the citizens.
This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of India AIR 1951.
In this case, an amendment to add art 31 A and 31 B to the constitution was challenged on the ground that they
take away fundamental right of the citizens and therefore not allowed by article 13. It was argued that "State"
includes parliament and "Law" includes Constitutional Amendments. However, SC rejected the arguments and
held that power to amend the constitution including fundamental rights is given to the parliament by art 368 and
that "Law" is art 13 refers only to ordinary law made under the legislative powers.
In the case of Sajjan Singh v. State of Raj. AIR 1965, SC followed the judgment given in the case of Shankari
Prasad and held that the words "amendment of the constitution" means amendment of all provisions of the
constitution.
However, in the case of Golak Nath v State of Punjab, AIR 1971, SC reversed its previous judgement and held
that parliament has no power from the date of this judgment to amend part III of the constitution so as to take
away any fundamental right. It held that "amendment" is a law as meant under art 13 and so is limited by art
13(2).
To overcome the judgment in the case of Golak Nath, the parliament added another clause in art 13by the 24th
amendment in 1971 It says that this article does not apply to the amendment of the constitution done under art
368. A similar clause was added in art 368 for clarity in the same amendment, which says that amendment done
under art 368 shall not come under the purview of art 13.
This amendment itself was challenged in the case of Keshavanand Bharati v. State of Kerala AIR 1973. In this
case, SC reversed its judgement again and held that "Law" in art 13 only means ordinary law made under
legislative power, The 24th amendment is only clarifying that position and so it is valid. However, it further held
that "amendment" means that the original spirit of the constitution must remain intact after the amendment. Thus,
the basic structure or features of the constitution cannot be changed. According to C J Sikri, the basic structure of
the constitution includes - Supremacy of the Judiciary, democratic republic, secularism, separation of powers
among judiciary, legislative, and the executive, and the federal character of the constitution.
This judgment was delivered by 7:6 majorities and is one of the most important judgments in the history of
independent India. The effect of this judgment can be seen in the case of Indra Sawhney v. Union of India 1993,
where SC prevented the politicians from running amok in the matter of reservation. It this case it held that
inclusion of creamy layer violates the fundamental right of equality, which is a basic feature of the constitution
and so its inclusion cannot be permitted even by constitutional amendment.
Conclusion
During Constituent Assembly Discussions, it was noted that rigid constitutions such as that of USA cause a lot of
problems and is undesirable. Dr. Ambedkar said that flexible federation is a distinguished feature of the
constitution. In the hindsight, it can be said that the safeguards to prevent the spirit of the constitution were not
enough. Politicians have time and again shown that they can modify it easily to serve their vote based politics.
________________________________________________________________________________________
41
Q.3 What is the extent of contractual and tortuous liability of State for the wrongful acts of its
employees? Is distinction between sovereign and non-sovereign function still hold water ? Refer to case
law.
Ans. This answer shall include following points.
1. Tortuous and Contractual Liability of the State.
Art. 300 - The Government of India may sue or be sued by the name of Union of India and
the government of a state may sue or be sued by the name of state.
2. Contractual liability of the State A. 29
A contract is binding on the government of India if the following three conditions are
fulfilled that
i. It must be expressed to be made by the President or by the governor of the state is
the case may be.
ii. It may be extended on behalf of the President or the Governor as the case may be.
iii. Its execution must be by such person in such manner as the President or Governor
may direct or authorize.
3. Tortuous Liability (A. 300)

• P. and O. Steam Navigation Co. Vs Secretary of State for India
4. Supreme Court held that state is liable for the damages caused by him in exercise of
non-sovereign function.
• State of Rajasthan Vs. Vidyaubati
5. Supreme Court approves the judgment of P. and O. Steam navigation Co.
• Kasturi Lal Vs. State of U.P.
6. State cannot be held liable for the damages caused by hi in exercise of sovereign
function of the state.
• Nagendra rao Vs. State of Andhra Pradesh
7. State is liable or every damages caused by him in exercise of either sovereign or non
sovereign function.
Article 300 of the Constitution says that the Government of India may sue or be sued by the name of Union of
India and Government of a State may sue or be sued by the name of Union of India and Government of a State,
or of the Legislature of a State. Thus the Constitution makes the Union and the States as juristic person capable
for owning and acquiring property, making contracts, carrying on trade or business, bringing and defending legal
action, just as private individuals. The legal personality of the Union of India, or a State of Indian Union is thus
placed beyond doubt by the express language of Article 300. The Government of India can be sued in relation to
their affairs in the like cases as the Dominion of India might have been sued if this Constitution had not been
enacted. The position in this respect remains the same as it existed before the commencement of the Constitution
so long as Parliament does not make a law providing otherwise. [Art. 300], As the Union of India is legal person
it is not necessary to investigate whether the Government of India was a legal entity before the commencement
of the Constitution.
Contractual liability of State—Article 299 authorizes the Government of India to enter into contract for any
purpose subject to the mode and manner provided for it in Article 209. A contract is binding on the Government
of India if the following three conditions are fulfilled that—
1. It must be expressed to be made by the President or by the Governor of the State as the care may be, \
2. It must be extended on behalf of the President or the Governor as the case may be, and
3. Its execution must be by such person and in such manner as the President or Governor may direct or
authorize.
42
Failure to comply with these comply with these conditions nullifies the contract and renders in void and
unenforceable. There is no question of estoppels or ratification of the provisions of Art. 299 (1) of the
Constitution.
The Contractual liability of the State under Indian Constitution is the same as that of an individual under
ordinary law of contracts. The legal position in this respect has not changed under the present Constitution. The
liability of the State is exactly the same as that of East India Company before 1858.
Although the contracts are made in the name of the President he is not personally liable in respect of any
contract.
Tortuous liability of State—Article 300 (1) provides that the Government of India may be sued in relation to its
affairs in the like case as the Dominion of India, subject to any law which may be made by Act of Parliament.
The Parliament has not made any law and therefore the question has to be determined as to whether the suit would
lie against the Dominion of India before the Constitution came into force. Thus, so long as the Parliament or the
State Legislature do not enact a law on the point, the legal position in this respect is the same as existed before
the commencement of the Constitution.
Before the present Constitution came into force the East India Company, and after Government of India
Act, 1858, which transferred the Government of India to Her Majesty with its rights and liabilities, the Secretary
of State Council were liable for the tortuous acts of their servants committed in the course of their enjoyment.
Section 65 of the Government of India Act, 1858, provided that the Secretary of State in Council could be
sued as it could be done against the East India Company. Section 65 of the Government of India Act, 1858, was
re-enacted as Section 32 of the Government of India Act, 1915, and as Section 176 of the Government of India
Act, 1935. In the present Constitution the corresponding provision is Art. 300.
The first leading case on the point is the P. and O. Steam Navigation Co. V. Secretary of State
for India. The facts of the case were that a servant of the Plaintiff’s (company) was travelling from Garden Reach
to Calcutta in a carriage driven by a pair of horses. The accident took place when the coach was passing through
the Kidderpore Dockyard which was Government Dockyard. Some government workmen employed in the
Government Dockyard were carrying a heavy piece of iron rod for the purpose of repairing a steamer. The men
carrying the iron-rod were going in the middle of the road. When the carriage of the plaintiff drove up nearer the
coachman gave a warning to the men carrying the iron rod and the coachman slowed its speed. The men carrying
the iron rod attempted to get out of the way, those in front tried to go the one side of the road while those behind
tried to go the other side of the road. The consequences of this was a loss of the time, brought the carriage close
up to them before they had left the center of the road seeing the horses and carriage they got alarmed and suddenly
dropped the iron rod and ran away. The iron rod fell with a great noise resulting in injuries to one horse, which
startled the plaintiff’s horses which thereupon rashed forwards violently and fell on the iron rod. The Company
filed a suit against the Secretary of State in Council for the damages for injury to its horse caused by the negligence
of the servants employed by the Government of India.
The Supreme Court held that the Secretary of State for India was liable for the damages caused by
the negligence of Government Servants, because the negligence act was not done in the exercise of a sovereign
function. The Court drew a distinction between acts done in exercise of “sovereign power” and act done in the
exercise of “non-sovereign power” that is, acts done in the conduct of undertakings which might be carried on by
private person—individuals without having such power. The liability could only arise in case of “non-sovereign
functions”. The East India Company has a two-fold character—(a) as a sovereign power and (b) as a trading
company. The liability of the Company could only extend to in respect of its commercial dealings and not to the
act done by it in exercise of delegated sovereign power. In the present case, the damage was done to the plaintiff
in the exercise of non-sovereign function, i.e. the maintenance of Dockyard which could be done by any private
individual without any delegation of sovereign power and hence the Government was liable for the torts of its
employees. The Secretary of State was not liable for anything done in the exercise of sovereign powers.
In State of Rajasthan v. Vidyawati (AIR 1962 SC 933)—In this case court approves the distinction
made in P. and O. Steam Navigation Co. V. Secretary of State for India case between the sovereign function
43
and non-sovereign function. IN this case Lordship said that common law immunity rule base on the principle that
King can do no wrong and has no application and validity in this country.
This observation indicates that Supreme Court was of the view that immunity from liability of the
State for tortuous act committed by its servants when exercising sovereign powers delegated to it cannot be
sustained. But the Court expressed its view that in the absence of a law made by the Parliament under Article 300
(1) of the Constitution, the law in force today is the law that was in force ever since the date of East India
Company.
In Kasturi Lal v. State of U.P. (AIR 1965 SC 1039) –In this case a person was taken into custody on
suspicion of being in possession of student property and taken to police station. His property including certain
quantity of gold and silver was taken out from him and kept in the Mallkhana till the disposal of the case. The
gold and silver was misappropriated by the police constable who fled to Pakistan. The appellant suit the State of
U.P. for returning of the gold and silver in the alternative claimed damages for loss caused by negligence of the
Merrut Police. The Supreme Court heard that the state was not liable and the Court approved the distinction made
in the Steam Navigation case between sovereign and non-sovereign function of the State. The Court held that the
tortuous act of the police officers was committed by them in discharge of sovereign powers and the State was
therefore not liable for the damages caused to the appellant. The Court said that power to arrest a person, to search
him, and to seize property found with him are powers conferred on the specified officers by statute and therefore,
they are powers which can properly be characterized as sovereign powers. The Court however made a strong
plea for enactment of a legislation to regulate and control the claim of the State for immunity on the lines of the
Crown Proceedings Act of England.
The End
44

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LL.B. (5Yrs.

This answer shall include following points.

College Assignment Question Answer

(ii) Doctrine of Repugnancy

Union- State Relationship:

UNION - STATE - RELATIONSHIP

Legislative Administrative Financial

Grants in aid Loans/Advances Subsidy

2. Features of Judicial Review

Ans.- This answer shall include following points.

Provisions in case of failure of constitutional machinery is States

3. Tortuous Liability (A. 300)

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