SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: BBA LLB

Batch: 2020 - 2025
Semester: 2
Course Name: Constitutional Law
Seat No: 196094
PRN: 20010324114

INSTRUCTIONS
1. Mention your details only in the space provided above. If any other details
name, contact detail etc. are written anywhere else in the answer script it will
be treated as adoption of unfair means.
2. Use diagrams and sketches wherever required.
3. Submission will be done by the Google form provided by the examination
department and it will be in the word format only (.doc/.docx). Submission of
any other format will not be accepted.
4. Submission will not be accepted beyond the deadline given by the
examination department in each subject. Student will be marked absent in
case of late submission.
5. The answers need to be neatly typed. Formatting guidelines: Font size &
name: 12 & Times New Roman; Line spacing 1.5; Justified; Page size: A4; No
borders
6. Write your answer in your own words and do not copy paste from any source.
Read the question carefully and write your answer fulfilling the requirements
of the question.
7. Examiner may use plagiarism check software to find out the originality of the
assessment.
8. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
9. File name should be Seat Number Example: 345006
Ques. 1(B)

a) Article 12 gives an elaborated meaning for the term ‘state’. It states that the meaning of the
term in Article 13(2) or in any other provision of the fundamental rights has an expansive
meaning. Article 12 categories state and state includes all the government and parliament of
India, the government and legislature of each state, all the local and other authorities which are
within the territory of India and are under the direct control of the government of India. The
term "state" is defined in Article 12 only for the purposes of Part 3 of the Indian Constitution.
The court observed in the case of general manager, kisan sahkari chini mills ltd., Sultanpur,
U.P. Vs. Satrugan Nishad AIR 2003 SC 4531 that the state government of U.P. had a 50%
share in the mill and that the mill's expenditures were met with self-generated funds, and that
the state government's nominee was 1/3rd in the mill's management committee, while the
remaining 2/3rd. Under the by-laws, the state government could not determine its policy and had
a mild control over the mill. So, the court held that the corporation is not state within the
meaning of Article 12 of the Indian constitution as there was no deep and pervasive control of
the government. In the present case, Lannister Corporation, a crop fertilizer research
corporation 50% share of the corporation was held by the state government of Karnataka.
Expenses of the corporation were not met by state funds. The Lannister Corporation was in
charge of and created the expenses. The state government's selections for the management
committee received 1/3 of the board membership and 2/3 of the non-government members of
the corporation. Under the bye-laws of the corporation it was mentioned as a directive that the
government undertook that it will not engage in internal matters of the corporation. By the
judgment of the court in general manager, kisan sahkari chini mills ltd., Sultanpur, U.P. Vs.
Satrugan Nishad, it can be concluded that Lannister Corporation is not a state under Article 12
of the Indian constitution.

b) For a body to be considered agency/ instrumentality of the state, it must meet certain
conditions:
 It should be created through an Act of Parliament.
 It should have the power to decide and influence the working of the said body
 The capital needed for functioning should be provided only by the central government.

In the case of Ramana Dayaram Shetty vs. the international airport authority of India AIR 1979
SC1628, the court laid down the tests for determining whether a body is an agency or the
instrumentality of the government. The following are the tests laid down by the government:
 Finance- the financial resource of the state is the chief funding source which means the
 entire share capital of the corporation is held by the government.
 Department- A department of the government us transferred to the corporation.
 Monopoly- whether the state enjoys monopoly status which is conferred by the state or
state protected. The court also held that the test is not conclusive and have to be used with
proper care and caution.
 Control- existence of a deep and persuasive control by the state.
 Government functions- the functional character of the government is the essence that is the
function of the corporation are of public importance.
From the above-mentioned tests it is clear that Lannister Corporation is neither a instrumentality or
agency of the state as there was no deep and pervasive control by the government in the working of
the corporation.

c) The question whether the judiciary comes under the ambit of Article 12 of the Indian
constitution was raised in the case of Naresh vs. state of Maharashtra AIR 1967 SC. In this
case a nine-member bench held that the judicial decision by the judge cannot affect the
fundamental rights of the citizens because the judicial decision is given to decide on the
controversy between the parties and such judicial decision cannot be challenged under the
Article 13 of the Indian constitution. In the same case, the court also held that if a person wants
to challenge the rules framed by the supreme court under the Article 145 can be challenged by
the people on the grounds that they are invalid as they violate the fundamental rights of the
citizens. The party can move to supreme court under Article 32 of the Indian constitution. Now,
from this we can make certain conclusion that the administrative side and the quasi-legislative
side of the judiciary can be considered a state under the Article 12 of the Indian constitution.
However, the judicial side of the judiciary is not state under the Article 12 of the Indian
constitution.

d) The words “other authorities” denotes that the authority exercises governmental and sovereign
functions. Other conditions for a body to come under the purview of State have already been
discusses. The term other authorities strengthen the objective of the Article. If a government is
working through a proxy (other authorities), it shall be liable for all the wrongs the other
authorities.

Ques. 2(B)

A) The contention of the petitioner would not be maintainable. The constitution of india came into
force from 1950. The proceedings of the present case started in 1949 under a pre-constitution law.
The offence committed by the petitioner was done before the commencement of the constitution and
therefore, the proceedings against him under the Press (Emergency powers) Act would not be affected
at all. The question of inconsistency of the existing laws with that of fundamental rights cannot be
argued because fundamental rights came into force after the commencement of the Constitution. If
Article 19 were to be invoked, it would mean retrospective applicability of the constitution.
(Held in Kesava Madhava Menon v. State of Bombay.)

B) Article 13(1) of the constitution is not retrospective in nature. It deals with pre constitutional
rights. All the pre constitutional rights shall become void only after the commencement of the
constitution. They are not void ab-initio. If pre constitutional Rights are inconsistent, a declaration of
invalidity has to be passed by the courts. Article 13(2) private state to make any laws which takes
away or abridges the rights conferred under the Constitution. If such law is made by the state, it is
void ab initio. The only difference between 13(1) and 13(2) is that 13(2) makes the inconsistent law
void ab initio.

C) Any and all laws in force within the territory of India before the commencement of the
constitution are pre constitutional rights. If a part of the said law is inconsistent with the constitution,
only to the extent of inconsistency, the law shall be declared void.
Press (Emergency Powers) Act, 1931 was passed and was in operation before the commencement of
the constitution, it is an example of pre-constitutional law.

D) Pre-constitutional laws are not to be applied retrospectively. If certain provisions of a pre

constitutional law are inconsistent with the provisions of the constitution, they shall be void, only till
the extent of inconsistency, after the commencement of the constitution. They are not void ab-initio.
A declaration of the court stating that the law is inconsistent must be given. Till that time, the said
laws will be applicable. Section 124A of the Indian Penal Code deals with the crime of sedition. It is
stated that – “Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend to three
years, to which fine may be added, or with fine”.

CASE LAWS

 In Romesh Thapar v/s State of Madras, it was said that “freedom of speech and press lie at
the core of every democratic organisation, for without open political conversation, no
public education, so necessary for the efficient functioning of the process of popular
democracy, is possible.” In this case, the Madras government barred the entry and
distribution of the English newspaper "Cross Road," which was printed and published in
Bombay. The same was ruled a breach of free speech and expression because "publication
would be of little value without the liberty of dissemination."

 In Indian Express Newspapers v/s Union of India, the court declared that the press is
important to the democratic process. The courts have a responsibility to defend journalistic
freedom and to reject any legislation or administrative measures that limit it. Press freedom
is comprised of three essential components. They are Unrestricted access to all sources of
knowledge, Freedom of publication and Freedom of distribution.
  The Supreme Court declared in Union of India v/s Association for Democratic Reforms,
"One-sided information, misinformation, misunderstanding, and non-information all
equally generate an uninformed population, which renders democracy a farce." The right to
free expression and expression includes the freedom to share and receive information, as
well as the right to have opinions.
Ques. 3(B)

a) For the bill to pass, a special majority with ratification by 50 percent of the states is required,
which means at least 15 states must adopt it with a simple majority. According to Article 368 of
the Indian constitution, a special majority is defined as “a majority of two-thirds of the members
present and voting, backed by more than half of the entire strength of the house.” In order for the
measure to be ratified by the states, the state legislature must accept it with a simple majority,
which is defined as "a majority of more than 50% of the members present in the house.”

b) Because the number of votes collected is less than the absolute majority, the bill cannot be passed
in the house. As a result, the bill will not be passed. 2/3rds of the members present and voting are
required for a decision to be made.
i.e. (50% +1) & (2/3 * 272)
i.e. (50% * 545 +1) & 181 (Round of)
i.e. 273 & 181 (Both are Round of figures only)
272 (The number of members present and voting) < 273(Absolute Majority)
Hence the Bill is not passed.

c) In the context of the Indian Constitution, the following types of majorities are required for any bill
to pass :
1. Absolute Majority: The requirement for absolute majority is a majority of more than 50%
of the total membership of the house. For example, because the Lok Sabha has a total
membership of 545, an absolute majority in the Lok Sabha equals 50% of 545 plus 1, or
273. The absolute majority is used in the following situations: In the routine operation of
the Parliament or the State Legislature, the absolute majority is rarely utilized. During the
general election, however, this majority is utilized to establish the government at the
central level and in the states.

2. Effective Majority: The term "effective majority of the home" refers to more than half of
the effective strength of the house. This means that the total strength is substracted by the
number of empty seats. In the Indian Constitution, the expression "all the then members"
refers to the effective majority. Consider the following scenario : If there are 25 vacancies
in the Rajya Sabha's overall strength of 245 members, the house's effective strength is 220.
The effective majority is then 50% of 220 plus 1, or 111 votes. Use of the effective
majority in the following situations: To the removal of India's Vice President, as well as
the Speaker and Deputy Speaker of the Lok Sabha and state legislatures.

3. Simple Majority: A simple majority is defined as a vote by more than half of the members
present and voting. For example, the Lok Sabha has a total membership of 545 members,
of whom 272 were present and ready to vote on the amendment bill, and 150 voted in
favour of it. More than half of the members present and voting are required for the bill to
pass.
 “Cases where the simple majority is used :
(1) To pass Ordinary/Money/Financial bills.
(2) The simple majority is required in the Lok Sabha to remove the Vice
President.
(3) To pass a motion of non-confidence, adjournment, censure, and
confidence.
(4) To declare a financial or state emergency.
(5) The Constitution Amendment Bill, which must be passed by states
under Article 368, merely requires a simple majority in state
legislatures.
(6) Article 368 of the Indian constitution defines a special majority as “a
majority of two-thirds of the members present and voting, backed by
more than half of the entire strength of the house.”
For example: the Lok Sabha has a total membership of 545 members,
of whom 272 were present and ready to vote on the amendment bill,
and all 272 voted in favour of it. Because the number of members
present and voting is less than an absolute majority, the bill cannot be
passed.

d) Because the mechanism for amending the Indian Constitution is neither simple nor complicated, it
is both rigid and flexible. India now has a federal structure thanks to the Constitution. The
jurisdictions of the centre and the states have been defined and delineated. The centre and the states
have been given the power to exercise independent authority. There are provisions that allow for the
conversion of the federal system to a unitary one. Amendments can only be made with the permission
of both the Centre and the States. A special majority of the Union Parliament, i.e. a vote of not less
than two-thirds, is required to modify the Constitution. As a result, the Indian Constitution has a good
mix of flexibility and rigidity.

Ques. 4(B)

DOCTRINE OF ECLIPSE

The Doctrine of Eclipse states that any law that is incompatible with fundamental rights is not void ab
initio but becomes unenforceable. It is over shadowed by the Fundamental Rights and remains
dormant, but it is not dead. Constitutional amendment can resolve the contradiction as the eclipse will
be removed by amending the applicable fundamental right, and the entire statute will become valid.
Article 13 expresses that any law which was made before the initiation of the constitution should be
predictable with the part III of the Indian Constitution. In the event that any sculpture which is
inconsistence with the arrangements given under part III of the Indian constitution such sculpture will
become void. Simultaneously such sculpture will not be treated as dead however will be in the
doomed condition until and except if it is annulled by the Parliament.
Consequently, any law before freedom assuming it encroaches or is in struggle with the Fundamental
rights, it ought to be void up to that irregularity. It doesn't make the entire law void however that
piece of law which is conflicting with Part-III of the Indian constitution will be void. The law isn't
dead yet will be in incurable condition and is at removal of parliament.

Components of Doctrine of Eclipse

  It ought to be Pre-established law
 Should be in struggle with crucial right
 The law doesn't turn into a dead letter however just broken
 In case there is a change to the Fundamental Right in future it will consequently make the
criticized law usable.

The Supreme Court ruled in Deep Chand v. State of Uttar Pradesh that any post-constitutional law
enacted under Article 13(2) that violates a fundamental right is null and void from the start and is a
still-born law. It is null and void from the start. State of Gujarat v Ambica Mills, 1974
The Supreme Court reversed its decision in Deep Chand and Mahendra lal Jain, holding that a post-
constitutional statute that violates fundamental rights is not null and void in all circumstances and for
all reasons.

Article 13 will not be used in all of these cases.

1. Article 31A - Adopted after the first Constitutional Amendment. This includes the
following:
 Purchase of estates and related rights.
 The State seizes ownership of property.
 The joining of Corporations.
 Extinguishment or alteration of corporate directors' or shareholders' rights
 Mining leases are being terminated or modified.

2. Article 31B - All acts and regulations included in the Constitution's 9th Schedule will be
lawful. The first Constitutional Amendment also included this. Later, in I.R. Coelho v. State of
Tamil Nadu, AIR 2007, it was determined that the 9th Schedule does not provide blanket
protection. Judicial review is a requirement of the Constitution. As a result, laws approved
under the 9th Schedule must satisfy the Basic Structure test.

3. Article 31C - This was inserted in 1971 by the 21st Constitutional Amendment. This article
states that no law that tries to implement the Directive principles of Article 39(b) or 39(c) shall
be declared unlawful because it violates the Fundamental Rights

4. Article 33 - This article empowers the Parliament to decide the extent to which the
Fundamental Rights are implemented in the Armed Forces and other comparable forces. The
Army Act, 1950, and the Air Force Act, 1950 were enacted by the Parliament to address the
issue of Fundamental Rights in the army and their execution in accordance with the
Parliament's wishes. This is critical for the country's security.

5. Article 34 - This article discusses martial law. Under Martial Law, the Parliament has the legal
authority to protect the employees of the union or the government from any damage. There are
two criteria in this article:
 The act must be performed in conjunction with the preservation of public order.
 There must be martial law in effect in that area.

Bhikaji v State of MP AIR 1955

It was in this case that the Doctrine of Eclipse came to be enunciated by the Supreme Court for the
first time. Under the C.P and Berar Motor Vehicles Act, 1948; the provincial government was given
the authority to take over the entire business of motor transportation to the exclusion of any private
operator. In short, the law allowed monopolization of the transport business but after the Constitution
came to force, According to A, 19(1)(g) allowed anyone to carry out any operation, trade and
business. So even private people had the right to carry out transportation business.
Thus the C.P and Berar Motor Vehicles Act, 1948 came into conflict with A. 19(1)(g) after 26th
January 1950. Thus, now the legislation became void. In the year 1951, the first Constitutional
Amendment Act was passed. In this A. 19(6) was amended.
It spoke about 'reasonable restriction' to be imposed on the fundamental right to carry out any trade or
business. The restriction added was that the state can actually monopolize any business to the entire
exclusion of any private individual. While resolving the issue of whether or not the pre-constitutional
law was void or not, the Supreme Court came up with the Doctrine of Eclipse.

DOCTRINE OF DOUBLE JEOPARDY

Article 20(2) of the Constitution of India says that no person shall be prosecuted and punished for the
same offence more than once as it follows the principle no person shall be punished twice for the
same offence. The Indian Constitution, the autrefois convict is incorporated and not autrefois acquit.
If the person is prosecuted for the offence and if he is again prosecuted for the same offence, he can
take the complete defence of his former acquittal or conviction. Under Art.20(2) of the Constitution
provides protection against the double jeopardy when the accused not only prosecuted but also
punished and is prosecuted again for the same offence previously convicted. But if the person is
acquitted on the result of prosecution, the appeal can be made on such acquittal and there is no bar for
being tried again for the same offence under this Article. Therefore, this doctrine protects the person
from convicting twice for the same offence but not different offence on violation of any other law
being in force arises on the same facts. It has its roots in the well- established maxim of the English
Common law, Nemo debit bis vexari which means the man must not be punished twice for the same
offence.

Components of Double Jeopardy

 The person must be accused of an offence.
 The proceeding should be taken place before a court or judicial tribunal.
 The person must have been prosecuted and punished in the previous proceedings.
 The offence must be the same for which he is prosecuted and punished in the previous
proceedings.

As long as the components of each crime are distinct, an individual can be tried again on the same
facts. Different jurisdictions can charge the same person with the same offence based on the same
facts without breaching the principle of double jeopardy. For example, the federal and state
governments can both trial the same defendant for the same offence if some part of the defendant's
behavior violates both federal and state laws. Only one criminal prosecution based on the same facts
and offence is prohibited under double jeopardy. As a result, even if a person is acquitted criminally,
a civil claim may still be filed.
Examples:
 If a defendant is acquitted of a burglary that allegedly happened at 1234 Green Street on
January 1, 2000, the defendant cannot be tried again for the same residence on the same
day.
 If the defendant is tried and acquitted for allegedly selling cocaine to Bill at 1234 Green
Street on January 1, 2000, the same defendant can still be prosecuted for allegedly selling
cocaine to John at the same location on January 1, 2000. Each sale of cocaine is a different
act and felony, and each can be prosecuted separately without breaching the double
jeopardy rule.
In the following cases, double jeopardy does not apply:
 Mistrial: A mistrial does not automatically imply that the government cannot pursue the
defendant if the case is dismissed. If the case was terminated due to a "hung jury" or a
"mistrial," the defendant might be retried on the same offence because his/her case was not
decided on the merits, but rather on a technicality.

 Sovereign: Double jeopardy does not preclude another sovereign from prosecuting the
defendant for the same offence. For example, just because the state cannot prosecute the
defendant does not preclude the federal government from doing so.

 Several Offenses: While double jeopardy protects against prosecution for the same offence,
it does not preclude the government from prosecuting the defendant on multiple counts of
the same violation

Shrivardhan Mohta V. Union of India, 2018.

In this case the court held that there is no bar to a trial or conviction of an offence under two different
enactments. The bar is only to the punishment of the offender constituted an offence under two
enactments, the offender may be prosecuted and punished under either or both enactment but shall not
be liable to be punished twice for the same offence.

State of Haryana V. Balwant Singh, 2003

The court held that Article 20(2) provides that No one shall be prosecuted and punished for the same
offence more than once.’ Offences such as criminal breach of trust, misappropriation, cheating,
defamation etc., may give rise to prosecution on criminal side and also for action in civil court/other
forum for recovery of money by way of damages etc., unless there is a bar created by law. Thus,
punishing a person under Section 71 of the Army Act and making order under Regulation 16(a) are
entirely different. Therefore, the doctrine of double jeopardy cannot be applied.

Union of India V. Purushottam, 2015

The court gave its judgment as in the first place there is no complete ban on a second court-martial,
provided it is within the prescribed period of limitation, etc. Secondly, the decision of the court-
martial fails to find confirmation, the effect is that it cannot be considered that a court martial has, in
fact, been concluded and further, in our opinion, so as to debar a fresh one. The double jeopardy
principle contained in Section 121 has only premised the prohibition of the second trial in case the
first one leads to punishment/conviction.