Consti II QB Answers
Consti II QB Answers
Consti II QB Answers
UNIT-1:
LONG ANSWERS:
1. The office of the Comptroller and Auditor General of India is the pivotal office in the
Government of India which controls the entire financial system of the country at the
Union as well as State levels. What is the official mandate of CAG’s office?
[Short notes 1+2]
SHORT NOTES:
2. What are the duties and powers of Comptroller and Auditor General of India?
[Pg 551 full side]
UNIT-2
LONG ANSWERS:
INDEPENDENCE OF JUDICIARY:
2. The principle of Cabinet Responsibility in the States differs from that of the Union. In
this regard, explain the relationship between the Governor and the Council of Ministers…
Is it similar to that between the President and Council of Ministers? Discuss with the help
of decided case laws.
1. Yes the relation between the council of ministers and the governor is the same as the
relation between the COM and the president. But the only diff is the governor has the
authority to exercise some functions at his discretion but the president does not have the
right to do so.
2. Art 163 states that there shall be council of ministers with the CM to advice the governor
in exercise of his functions.
3. Art 163(2) the governor need not seek advice where he can exercise his discretion.
4. Usually he only acts only as a constitutional head but in times of crisis the governor can
effectively utilize the provision that the constitution has granted him that is to act upon
his discretion.
5. Cases where the governor can exercise in his discretion:
1. Appointment of CM- under Art 164 the CM is appointed by the governor. In the case
M KARUNANIDHI V UNION OF INDIA the question was raised as to if the CM or
a Minister is a public servant under section 21of IPC and also that this section
mentions the word in pay of the government. The court held that part 1 of the section
signifies only the relation between master and the servant and would not be applied
here. But according to part two states that the relation is of the master and the servant
or even a public servant so CM or any minister for that matter is a public servant. He
can be prosecuted and no prior sanction of the governor is needed.
2. Dismissal of ministry- According to Article 164 the ministers will hold office at the
pleasure of the governor. But he also cannot at the same time dismiss the minister at
his own will. Confidence of the majority is needed for dismissal. Under article 164
(2) the council of ministers is responsible to the leg assembly. As long as the ministry
enjoys confidence it cannot be dismissed by the governor. He may refuse to take the
advice of the ministry that has lost the majority. In the case MAHABIR PRASAD V
PROFULLA CHANDRA it was held that the right to withdraw the pleasure during
which the ministers hold office is absolute and unrestricted and cannot be questioned.
3. Dissolution of leg assembly- under Article 174 the governor summons and dissolves
the leg assembly. Normally it does not get dissolved till the tenure of 5 years but will
get if the ministry has lost majority. He may dissolve the house according to the
advice of the defeated CM or may not dissolve and find a new person to form an
alternate state ministry.
4. Advising the president- as per article 356 the governor has to report to the president
that there is such a situation arisen and the government of the state cannot be carried
out in the manner given in the constitution.He may advise the President to take
appropriate action to restore constitutional machinery.
3. State graphically the relative positions of the two Houses of the Union Parliament and of
a State Legislature: (i) as regards Money Bills, and (ii) as regards Bills other than Money
Bills.
The parliament in matters regarding money bills:
1. According to Article 110(1) a money bill is a bill that contains the abolition, remission,
and alteration of the taxes, regulating the borrowing of money, deals with the
consolidated fund or the payment and withdrawal from such funds.
2. According to Article 110(3) the speaker of the lok sabha decides if the bill is a money bill
or not.
3. According to Article 110(4) the speaker shall endorse a certificate that the bill is a money
bill when it’s being sent to the president for his assent.
4. The money bill can be introduced only in the lok sabha and cannot be introduced in the
Rajya Sabha under Article 109(1).
5. The money bill can be introduced only with the recommendation of the president.
6. But his recommendation is not needed when there is any amendment or abolition of the
tax. As per Art 117 (1) proviso.
7. Once the money bill has been passed in the lok sabha it will be sent to the Rajya sabha
for recommendations but it has to be returned within 14 days from the bill date.
8. The lok sabha may either take or reject the recommendations.
9. If the lok sabha accepts the recommendations then the money bill would deemed to be
passed by both the houses. But if the money bill sent to the rajya sabha and has not been
returned within 14 days then it would deemed to be passed by the lok sabha at the
expiration period of 14 days.
10. The president may give his assent or refuse to give his assent to the money bill.
Regarding other than money bills:
1. An ordinary bill which is neither a money bill nor a financial bill can be introduced in
either house of the parliament.
2. The bill must be passed by both the houses of the parliament in order to get the assent of
the president.
3. The bill becomes a law only when it ahs got the assent of the president.
4. Usually the bill undergoes 3 readings before it becomes a law, the first reading is when
the bill is introduced in the house. The second reading is when the bill is discussed clause
by clause and this is when the amendments can be made. The third and the final reading
is where the bill is discussed in a general and brief way and then finally passed.
5. The bill is passed to the other house where the same procedure is repeated and if there is
any disagreement then the bill cant be passed.
6. This will create a deadlock and to resolve this, the constitution provides for a joint sitting
of the two houses.
State legislature on money bills: (same as parliament)
1. The money bill will originate in the legislative assembly.
2. After it has been passed in the assembly it is transmitted to the leg council for its
recommendations.
3. The council should return within 14 days.
On bills other than money bills: it is the same as parliament but here there is no joint sitting
of the houses in case of deadlock. The decision of the leg assembly prevails (lower house).
Pg 624 1st para.
4. State the special responsibilities assigned to the Governor under the amended
Constitution.
The Governor can go for his own decision though the Council of Ministers provides him with
advice. These are discretionary powers given to the Governor that are not very explicitly
mentioned.
Article 371D, which was added to the Constitution in 1974, provides equitable opportunities and
facilities for the people of the state and safeguards their rights in matters of employment and
education. The state government may organize civil posts or direct recruitment to posts in local
cadre as required.
Article 371E states that the Parliament may by law provide for the establishment of a University
in Andhra Pradesh.
Article 371F was incorporated into the Constitution in 1975. It states that the Legislative
Assembly shall consist of not less than 30 members. In order to protect the rights and interests of
the different sections of the population in the state of Sikkim, seats in the assembly are provided
to people of these different sections.
The Legislative Assembly of the state of Mizoram must consist of not less than 40 members. In
addition, following the same provisions as Nagaland, an act of Parliament would not apply to
Mizoram in matters relating to religious or social practices of Mizo, Mizo customary law and
procedure, administration of civil or criminal justice involving decisions according to Mizo
customary law, ownership and transfer of land and its resources.
The Legislative Assembly of the state of AP must consist of not less than 30 members. The
governor will have special responsibility with respect to law and order in the state.
The Legislative Assembly of the state of Goa must consist of not less than 30 members.
Article 371J grants special status to six backward districts of Hyderabad-Karnataka region. The special
provision requires that a separate development board be established for these regions (similar to
Maharashtra and Gujarat) and also ensures local reservation in education and government jobs.
5. Discuss with the help of appropriate case laws the constitutional provisions relating to
the transfer of judge from one High Court to another High Court.
Position prior to 99th amendment of the constitution:
Article 217:
6. Examine the position and powers of the Governor of the State, as a representative of the
President under the Indian Constitution.
POSITION AND POWERS OF GOVERNOR:
The pattern of the Government in the state level is the same as for the union, that is, a
parliamentary system.
Appointment of a Governor has been specified in article 153 of the Indian Constitution.
Therefore, the governor has been made just a nominal official; the real official comprises the
committee of ministers headed by the chief minister.
The governor needs to exercise his powers and functions with the help and advice of Council of
ministers headed by the chief minister, aside from in issues in which he is required to act in his
watchfulness (i.e., without the exhortation of ministers).
The official intensity of the state will be vested in the governor and will be practiced by him
either legitimately or through officers’ sub-ordinate to him as per this Constitution (Article 154).
The article deals with the Powers and the Position of the Governor as per the constitutional
provisions.
The Governor is generally appointed by the President of the Nation under Article 155 of
Indian Constitution. The governor shall be appointed by the President under his seal and
warrant. IN Hargovind v Raghukul, it has been held that the office of the governor is an
independent one and is not under the control or subordinate to the govt of India.
According to Art. 157, a person is eligible to be appointed as Governor must be
A. citizen of India
B. Must have completed 35 years of age.
The candidate shall fulfill the listed criteria given below to be appointed as Governor of the
state enshrined in Article 158 of Indian Constitution which is as follows:
A. He ought not to be the individual from either house of parliament or a place of the state
governing body.
B. He ought not to hold any office of profit.
C. He can utilize his official home for other purposes, however, ought not to charge rent for
that.
D. If an individual is named as the overseer Governor of other states, he is qualified to get the
compensation of both state’s Governor (chosen by the President of India).
E. His payments and remittances can’t be diminished amid his term.
The Governor takes his oath from the Chief Justice of the respective state (Art. 159), and
he/she addresses his resignation to President of India.
The governor shall hold the office during the pleasure of the president. The tenure of the
office is fixed for 5 years from the date on which he enters upon the office.
He may be removed from his office anytime by the president. (Art. 159)
Executive power:
1. The executive power of the state is vested in the gov and is to be exercised by him directly or
through officers subordinate to him. (Art. 154)
2. All executive actions of the govt of the state shall be expressed to be taken in the name of the
gov.
3. The orders and instruments executed in the name of the gov, shall be authenticated in the
manner specified in the rules made by the gov and its validity shall not be called in question.
4. Authentication only signifies that the order is made by the gov but if in making the order the gov
has not acted according to the law the order can be challenged.
5. The SC in the case Ram JawayaKapur v State of Punjab, held that our constitution has adopted
British system of parliamentary form of government and the basic principle of this type of
government is that the president and gov are only constitutional heads and the real executive
power is vested in the council of ministers.
6. The gov as the state head has to exercise his formal constitutional powers only upon the aid and
advice of the council of ministers State of Gujarat v Mr. Justice R.A Mehta. But Art 163 (2)
permits the gov to act on his own w.o ministerial advice in certain situations depending on the
circumstances even though they may not be specially mentioned in the consti as discretionary
functions.
Financial power:
1. A money bill cannot be introduced in the legislative assembly w.o the recommendation of the
gov (Art. 207 (1)).
2. No grants can be made except on the recommendation of the gov (203 (3)).
3. The gov is required to cause to be laid before the house or houses of legislature ‘Annual financial
statements’ called as Budget (Art. 202).
Legislative power:
1. He is to bring the House or each House of the State Legislature, if it is a bicameral governing
body, to meet at such time and spot as he deems fit. There must not be a difference of more than
6 months between the first and the last session of the house. He ensures that the balance is
maintained.
2. The Bills passed by the State council require his consent. He can retain his consent and return the
Bill (other than a Money Bill) to the State governing body for re-examination. In any case, if the
House ends, with or without alteration, he should accord his consent to it.
3. He is engaged in saving specific Bills for the consent of the President. For example, the Bills
accommodating obligatory procurement of the property or diminishing the forces of the High
Court must be so saved for President’s assent.
4. The most important legislative power of the gov is the ordinance making power. Under Art 213,
whenever the legislature is not in session and the gov is satisfied that the circumstances exist
which require him to take immediate action he may legislate by ordinance.
5. However, he cannot issue an ordinance without the previous instruction from prez in certain
cases.
6. In the case D.C Wadhva v state of Bihar, a professor was undertaking research on the ordinances
issued by the gov. From the research he found that the gov of Bihar has promulgated 256
ordinances and all these were kept alive for between 1 to 14 years for re-promulgation. The court
held that such practice amounted to fraud upon the Indian Constitution and therefore
unconstitutional.
Pardoning power:
1. Art 161 says that the governor shall have the powers to pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentences of any person
convicted of any offence against any law relating to matters to which executive powers of the
state extends.
2. He cannot grant pardon in death sentences and cannot pardon punishment of sentences
inflicted by court martial.
3. This power is subject to judicial review. Epuru Sudhakar v State of A.P
1. When the alternative remedy is inadequate to meet the needs of the case.
2. When the remedies provided are not well suited to the situation at hand.
3. When there is complete lack of jurisdiction to try the case.
4. When there is an unreasonable amount of delay.
INTERIM RELIF
RELIF CANNOT BE BARRED BY ANY STATUTE
Earlier it was believed that Power conferred under Article 226 can’t be taken away from the
High Court by any way other than amendment of the constitution. But the power of judicial
review can’t be taken away even by amendment because judicial review is the basic feature of
our constitution and basic feature of the constitution not subject to any amendments.
In the case, Chandra Kumar v Union of India exclusion of High Court jurisdiction in cases
of Article 323-A and Article 323-B was invalidated by the Supreme Court, and in Surya Dev
Rai v Ram Chander Rai case it was held that section 115 of civil procedure code cannot
impose any limitation on the powers of High Court conferred under Article 226 and 227.
1. Habeas Corpus
Writ of habeas corpus, is a Latin phrase, which can be literally translated as "We command that
you have the body". It means, you can have the body and produce it before the Court. The aim of
this writ is to release a person who might be illegally detained. It secures the release of a person
from illegal detention either in prison or in private custody. According to law, no person shall be
detained unlawfully.
The Court can direct to have the body of the person detained, to be brought before it, in order to
determine whether the detention is legal or illegal. If a person who is arrested is not produced
before the Magistrate within 24 hours from the time of arrest, he will be entitled to be released
on the writ of Habeas Corpus. It can be issued against any private person or executive authority.
The disobedience of this writ amounts to contempt of Court, and is punishable.
Only if there’s detention of a person and the detention happens be illegal at the time of filing the
petition and if such a detention is unwarranted by law can this writ be filed.
Where the person against whom the writ is issued or the person who is detained is
not within the jurisdiction of the Court.
If a person who has been imprisoned by a Court of law on a criminal charge.
If the proceedings interfere with a proceeding for contempt by a Court of record
or by Parliament.
In Sunil Batra v Delhi Administration, the solitary confinement imposed on Sunil Batra and
Charles Sobhraj, who were under sentence of death was challenged as violation of Article
14,19,20and 21 of the Constitution. The Court treated their letter as writ petition. The Court held
that writ of Habeas Corpus can not only be granted for releasing a person illegally detained but
also it will be used for protecting him from ill- treatment inside jails.
In Bhim Singh v State of J & K,Bhim Singh, an MLA of State of J & K was wrongfully
arrested and detained in the police station and was prevented from attending the State Legislative
Assembly. The Court awarded a sum of Rs.50,000 to the petitioner as compensation for the
violation of his Constitutional right of personal liberty under Art. 21.
2. Mandamus
Mandamus in Latin means "we command, or sometimes "we mandate. It is issued by a superior
court to compel a lower court or a government officer to perform mandatory or purely ministerial
duties correctly.
Mandamus means 'the order'. Mandamus is an order by Supreme Court or High Courts to any
public authority to do or not to do something in the nature of public duty. It is issued against the
persons or authorities who fail to perform their mandatory duties. For the purpose of issuing writ
of mandamus, the officer must have a pubic duty and must fail to perform such duty. The
applicant of this writ must also have right to compel the performance of some duty cast upon the
authority.
Conditions:
There must be public duty upon the respondent.
The petitioner must have legal right to compel the performance of public duty
Such duty must be mandatory duty cast by law.
The petitioner must have demanded for the performance of such duty.
The public authority must have failed to perform or refuse to perform the pubic
duty
Mandamus is issued
Against public authorities and institutions.
Against officers exercising public functions.
Against Government and public corporations
3. Certiorari
It is an Order by the Supreme Court or the High Courts to an inferior Court to remove a suit from
an inferior Court and adjudicate upon the validity of the proceedings or to quash the Orders of
the inferior Court. Writ of Certiorari can be issued not only against any inferior Courts but also
against a body exercising judicial or quasi-judicial functions. This writ is issued under the
supervisory or original jurisdiction and not under the appellate jurisdiction.
In other words, whenever anybody has a legal authority to determine questions affecting the
rights of subject and having the duty to act judicially, acts in excess of their legal authority, writ
of certiorari can be granted.
Any person whose fundamental right is violated can apply for writ of Certiorari.
Writ of Certiorari can’t be issued against a private individual or body of private persons.
This writ will not be granted to remove ministerial acts, to remove or cancel executive acts and
to declare an Act as unconstitutional or void.
In the case of Rafiq Khan v State of UP, the Magistrate maintained the conviction of the
accused as passed by a Panchayat Adalat which is no1 authorised under Section 85 of the U. P.
Panchayat Raj Act, 1947. Hence, the High Court quashed the conviction by a writ of certiorari.
4. Prohibition
Prohibition means 'to prevent'. Each Court is expected to act within the limits of their
jurisdiction. A writ of prohibition is issued to prevent an inferior Court or Tribunal from
exceeding its jurisdiction, which is not legally vested, or acting without jurisdiction or acting
against the principles of natural justice.
The writ of Prohibition can be issued not only against the Courts but also against the authorities
exercising judicial or quasi-judicial functions.
In East India Commercial Co. v Collector of Customs, the Court compelled the inferior court
to keep itself within the limits of jurisdiction.
The person whose right is violated can apply for the writ of prohibition.
Writ of Prohibition can be granted in the following cases:
When the inferior Court or quasi-judicial authority exceeds its jurisdiction.
5. Quo Warranto
Quo warranto means 'what is your authority?' It is an Order questioning the authority of a person
holding a public office. It is issued against the holder of a public office, calling upon him to show
with what authority he holds such office. The object of this writ is to control the executive action
in making appointments to the public offices and also to protect the public from usurpers of
public offices.
Any member of the public can file writ of Quo Warranto, whether any right of such person has
been infringed or not.
Writ of Quo Warranto is not issued in the following cases:
When the office is a private office.
In K.Bhima Raju v State of Andhra Pradesh, the Government pleader was appointed against
the rules. The petitioner filed a writ of Quo Warranto. The High Court quashed the appointment
of Government Pleader on the ground that the appointment was not made in accordance with
rules.
Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable,
unfair and against the public interest.
SHORT ANSWERS:
Parliament allows for the abolition of L.C in states where it already exists and
creation of L.C where it does not exist. (ART 169)
Such abolition or creation can be done only in the cases where the L.A passes a
resolution by a majority of total members of the assembly and majority of not less
than 2/3rd of members present and voting.
Such law that is making provision for creation and abolition cannot be deemed to
be an amendment and is passed like an ordinary legislation.
As per art 168, states can either have one/two houses. Art 169 provides the choice
of having L.C to the states.
The second chamber of the states can help to check hasty decisions or actions by
the directly elected houses and also enable non-elected persons to contribute to
the legislative process.
3. How the Union Territories are administered under the provisions of the Constitution?
1. Every Union Territory shall be administered by the President through an administrator
appointed by him as per Article 239(1).
2. The governor of a state shall also be appointed by the President for the adjoining UT.
3. As per Article 239(2) the governor so appointed shall exercise his functions
independently of his council of ministers.
4. Explain the superintendence power of the High Court.
Superintendence Power of the High Court:
Article 227: Every HC has this power over all courts and tribunals throughout the territory in
relation to which it exercises its jurisdiction.
For this,
Exception: This power of HC does not extend over any court or tribunal relating to Armed
Forces.
3. This is a wide power and is wider than the powers mentioned in Article 226.
4. Waryam Singh Vs. Amarnath:
This power is not confined only to Administrative Superintendence, but also to Judicial
Superintendence over all subordinate courts within its jurisdiction. This power has to be
exercised most sparingly and only in appropriate cases.
5. Santosh Vs. Mool Singh: (Explanation with Case Law) Grounds on which HC interferes
when,
Inferior courts act arbitrarily
Inferior courts act in excess of jurisdiction vested in them
Inferior courts fail to exercise jurisdiction vested in them
Inferior courts act in violation of principle of natural justice
If there is error of law apparent on the face of record.
Eg: Banerji Vs. Mukherji: Employee by Industrial Tribunal was held wrongful.
Here, HC cannot interfere unless there is grave miscarriage of justice.
Elections are a central feature of democracy. For elections to express the will of the electorate,
they must be ‘free and fair’.
‘Free’ means that all those entitled to vote have the right to be registered and to vote and must be
free to make their choice. In India every citizen over the age of 18 is entitled to vote (adult
suffrage art 326). An election is considered ‘free’ when you can decide whether or not to vote
and vote freely for the candidate or party of your choice without fear or intimidation. A ‘free’
election is also one where you are confident that who you vote for remains your secret.
‘Fair’ means that all registered political parties have an equal right to contest the elections,
campaign for voter support and hold meetings and rallies. This gives them a fair chance to
convince voters to vote for them. A fair election is also one in which all voters have an equal
opportunity to register, where all votes are counted, and where the announced results reflect the
actual vote totals.
NOTE: THIS IS A GENERAL QUESTION SO, WE CAN ADD ON MORE THIS IS JUST AN
OVERVIEW.
6. Explain the constitutional provisions relating to scheduled areas and tribal areas.
Provisions relating to the administration and control of the Scheduled areas and Scheduled
Tribes in any state, other than Assam, Meghalaya, Mizoram, Tripura are contained in the fifth
schedule to the constitution.
(i) The executive power of the states extends to the scheduled areas.
(ii) The Governor of these states has to submit the report to the President regarding the
administration of such areas on the annual basis or whenever required to do so;
(iii) Tribes Advisory Councils consisting of not more than 20 members, have to be constituted to
advise the government on the matters relating to the welfare and advancement of the Schedules
Tribes-these matters are those which may have been referred to the councils by the Governor.
(iv) The Governor may annul or suspend acts and resolutions of district or regional councils if he
is satisfied that it’s likely to endanger the safety or public order of India.
(v) The Governor is authorized to make regulations to prohibit or restrict transfer of land by or
among the members of Scheduled Tribes, to regulate the allotment of land and the business of
money- lending. All such regulations made by the Governor must have the assent of the
President
(vi) The President may appoint a Commission to report on the administration of the Scheduled
Areas and Scheduled Tribes in the state. As it was obligatory to appoint such Commission at the
end of first ten years of the implementation of the Constitution, the first Commission was
appointed in 1960. The Commission submitted its report in 1961
8. State the writ of prohibition and distinguish it from the writ of certiorari.
•Objective of both: restraining the inferior courts from exceeding their jurisdiction.
•It applies only to judicial or quasi-judicial bodies.
•It does not apply to public authority which acts purely on an executive or administrative
capacity, nor does it apply to a legislative body.
Major differences:
# A writ of prohibition is issued to prevent an inferior court or tribunal to go ahead with the trial
of a case in which it has assumed excess of jurisdiction, whereas a writ of certiorari is issued to
quash the order passed by an inferior court or tribunal in excess of jurisdiction.
#Prohibition is used at the starting stage and Certiorari is used at the later stage.
#Prohibition is only preventive because it prevents court from exceeding its jurisdiction.
But certiorari is preventive and curative both because it not only prevents but quashes the order
of lower courts.
The Advocate General of a State is a Constitutional post and authority appointed as per
Article 165 of the Constitution of India. Authority and functions are specified in article
165 and 177.
The Governor of each State shall appoint a person who is qualified to be appointed as a
Judge of a High Court to be Advocate General for the State.
The Advocate General shall hold office during the pleasure of the Governor, and the
remuneration is decided by governor
He is the Supreme law officer of the state.
DUTIES
Gives advice to the State upon legal matter
Performs legal duties assigned by Governor and functions conferred under constitution or
any other law in force.
RIGHTS
Conferred with the right to speak-in and takes part in proceedings of legislative assembly or
legislative councils (in short, considered in par with the ministers ).
CASE LAW:
Joginder Singh Wasu v/s State of Punjab -The Advocate General and his Law officers are
basically engaged to deal with court cases in the High Court by State Government and the
relationship between the Government and Law Officers is that of a client and counsel.
10. What is the role and functions of Speaker of Legislative Assembly?
The important function of the Speaker is to preside over the sessions of the Legislative
Assembly and to maintain order and discipline within the House.
The Speaker does not take part in the debate and usually does not vote except to break tie.
When the Assembly meets, the Speaker calls the House to order, maintains discipline in
the House.
He sees whether there is necessary quorum.
He may adjourn or suspend the sitting of the House if necessary quorum is not there, or to
restore discipline.
He may even suspend or expel members of the House for unruly behaviour.
Within the House, the Speaker is the master. It is the Speaker who decides whether a bill
is a money bill or not. Money bills are sent to the Upper House with the Speaker’s
certificate that it is a money bill.
The Speaker’s decision cannot be challenged in a Court of Law.
`The salary of the Speaker is charged on the Consolidated Fund of the State.
UNIT-3
LONG ANSWERS:
1. Discuss the areas of stress and strain in the distribution of federal financial relations in
the Indian constitution and suggest the ways and means to overcome such difficulties.
https://www.accountingnotes.net/fiscal-federalism/problems-financial-relations-between-the-
centre-and-state/10089 (Check this link)
2. The basic principle of federation enshrined in the Constitution of India is that the
legislative, executive and financial authority is divided between the Centre and State not
by any law passed by the Centre but by the Constitution itself. Discuss the relation
between the Union and the States.
1. Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations
between the Centre and the State.
2. The Parliament can make laws for the whole or any part of the territory of India.
Territory of India includes the states, UTs and any other area for the time being included
in the territory of India. Whereas, the state legislature can make laws for whole or any
part of state.
3. The Parliament can alone make ‘extra territorial legislation’ thus the laws of the
Parliament are applicable to the Indian citizens and their property in any part of the
world.
7. The Concurrent list comprises of 52 items including criminal and civil procedure,
marriage and divorce, economic and special planning trade unions, electricity,
newspapers, books, education, population control and family planning etc. Both the
Parliament and the State legislatures can make laws on subjects given in the Concurrent
list, but the Centre has a prior and supreme claim to legislate on current subjects. In case
of conflict between the law of the State and Union law on a subject in the Concurrent list,
the law of the Parliament prevails.
8. Case laws -STATE OF BOMBAY V RMDC / WALLACE V INCOME TAX
COMMISONER/ AH WADIA CASE.
Rest of the ques in Pg 720-735
3. Explain in detail how the legislative powers have been distributed between the Centre
and States.
Distribution of Legislative powers:
A Federal system postulates the distribution of powers between the Centre and State. Different
countries all over the world practiced different types of distribution of power. And after
analyzing the shortcomings of all of it, our constitution makers adopted for the Canadian Scheme
opting for a strong centre. However, they added one more to the List- the Concurrent List. The
Government of India Act, 1935 introduced the three fold enumeration, which is Federal,
Provincial and Concurrent.
I. Article 246: Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent
List)
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws
for such State or any part thereof with respect any of the matters enumerated in the List II in the
Seventh Schedule ( in this Constitution referred to as the State List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of
India not included (in a State) notwithstanding that such matter is a matter enumerated in the
State List
1) The Union List consists of 97 subjects and the subjects mentioned are of National
Importance. Eg. Defense, Foreign Affairs etc. (Some entries were added and deleted by
amendments)
2) The State List consists of 66 subjects and the subjects mentioned are of local importance.
Eg. Public order and Police, local Government etc.
3) The Concurrent List consists of 47 subjects. Both the Centre and State can make laws on
these subjects, but in case conflict arises, the Central law will prevail.
III. Principle of Interpretation of Lists (Refer Unit-3 short notes 7-Cut short as required)
IV. Parliament’s power to Legislate on State Subjects.
In certain exceptional circumstances the powers of the Union Parliament are extended
over the subjects mentioned in the State List.
[Rest of the answer pg 719,720- till “… greatly modified”]
4. Explain in detail the constitutional provisions relating to Union control over States in
normal times of administration.
5. The contractual liability of the State is the same as that of an individual. Elucidate this
statement with the help of appropriate case laws.
The contractual liability of the state is the same as that of an individual --
1. The contractual liability of the state under Indian constitution is the same as that of an
individual under ordinary law of contracts.
2. The contract not in proper form is not enforceable.
3. Contract entered into by unauthorised person on behalf of government, could be ratified
by the government.
4. Service contracts are not governed by article 299 but fall under statutory rules framed
under article 309.
No personal liability:
5. Under article 299 (2) the president or the governor shall not be personally liable for any
contract or assurance made or executed for the purpose of this constitution/any enactment
relating to government of India.
6. Any person making or executing any contract or assurance on behalf of the president or
the governor is also not personally liable for that.
No personal liability of the officer in the contract not in the proper form:
7. When the contract with the government is not in the form of article 299 (1) the officer
who entered into contract could be held personally liable under section 230 (3) of Indian
contract Act. - CHATURBHUJ v MORESHWAR.
8. The court dropped this view and held in STATE OF UP v MURALI LAL that section
230(3) of the Indian contract Act would not apply to such cases.
BhikrajJaipuria vs Union of India (1962)pg. 737
• If not in the form Art. 299- Not enforceable
Union of India vs A.L.Rallia Ram (1963)pg. 737
• Mere the fact – fails to express – execution
• Inferences –liable
Union of India vs Anglo (Indian) Afghan Agencies (1968)pg 738
• Govt. Declared-in the form Art. 299- Not enforceable
• Doctrine of Promissory Estoppel
MotilalPadampati Sugar Mills vs St. OfU.P (1979)pg 738
Facts:Govtreported in newspaper that UPgovt would grant sales tax exemption for 3 yrs to
new vanaspathi industry but later denied.
Court held:
Govt. bound by its promise,Equitable Doctrine
• Govt.- Bonafide intension/ fair & Just : requirement of equity
• Balance b/n Public interest & Doctrine of Promissory Estoppel
6. The residuary powers are legislative powers that fall in none of the three lists in the
Constitution of India. These powers are neither under the legislative powers of the State
nor the Union but are under the jurisdiction of the Judiciary. Critically analyse the
residuary powers in the light of the above statement.
Residuary Powers Article 248 vests the residuary powers in the Parliament. The Parliament has
exclusive power to make any law with respect to any matter not enumerated in the Concurrent
List or the State List. It is different from 3 lists, union list, state list, and concurrent list. These powers
are neither under the legislative powers of the State nor the Union. The residuary power of
legislation also includes the power to levy residuary taxes. Predominance of Union List In the
case of conflict between the Union and the State List, it is the Union List which is to prevail. In
case of conflict between the Union and the Concurrent List, it is again the Union List which will
prevail. In case of conflict between the Concurrent List and State List, it is the Concurrent List
that shall prevail. If there is a conflict between the central and the state law on concurrent
subjects, the central law will prevail. But, there is an exception to this provision. If the state law
has been reserved for the consideration of the President and has received his assent, then the state
law prevails in that state. However, still the Parliament is competent to override such a law by
subsequently making a law on the same matter. But the scope of the residuary powers is
restricted. This is because the three lists that is, the Union, State and Concurrent cover all
possible subjects. Then, the court can also decide whether a subject matter falls under the
residuary power or not.
Judiciary (being the interpreter of constitution) has a very important role to play in deciding the
residuary powers. It has been left to the courts to determine finally as to whether a particular
matter falls under the residuary, power or not.
Union of India v H.S. Dhillon
Whether parliament has legislative competence to pass wealth tax act on the assets of persons in
agricultural land?
Court held: in case of a central legislation the proper test was to inquire whether the matterfell in
list 2 (state list) or list 3 (concurrent list). Once it is found that the matter does not fall under list
2, parliament will be competent to legislate on it under its residuary power I entry 97 of list 1. In
such a case, it becomes immaterial whether it falls under entries 1-96 of list or not.
SHORT NOTES:
2. What is delegated legislation? What are the factors that contribute to the growth of
delegated legislation?
Delegated or subordinate legislation may be defined as rules of law made under
the authority of an act of parl.
Although laws are to be made by the legislature, but the legis may by statute
delegate its power to other person or bodies. Such a statute is known as ‘enabling
Act’ and lays down the principles and rules to be given by regulation made by a
minister or other persons.
FACTORS THAT CONTRIBUTE TO THEIR GROWTH:
Technicality: To understand the technicality of each and every topic, legislature
needs the expert of that particular topic. Therefore, after framing policies by the
parliament on any topic, that topic is given to the government department or any
particular person who knows about the technicalities of that particular topic and is
given the power to lay down the details
Pressure on parliament: The area, scope, or horizon of state activities are
expanding day by day and it is difficult for the Parliament to make laws on each
and every matter. So, it only frames the broad part of the rule and gives to the
executive or some of its subordinates to fill the full detail following the necessary
rules and regulations.
Flexibility:Parliamentary amendment is very slow and it involves a tedious
process to make any type of law but by the presence of delegated legislation it can
be made swiftly with the help of the executives.
Emergency: In the cases of emergency the legislature does not have the skill of
providing urgent solution. So, the delegated legislation is the only way to meet
such situation.
Unforeseen contingencies: subordinate legislation enables a gov to deal with
problems which could not be foreseen and to act quickly in an emergency when
the ‘enabling act’ was passed
3. Why there is a need to control exercise of delegated legislation? How it can be effectively
controlled?
The parliament does not have that much time to deliberate and debate about every topic.
Therefore, delegated legislation helps in making laws rapidly than the Parliament and the
procedure of the Parliament is also very slow as the bills for every law needs to pass from every
stage.
But there should be control over delegated legislation. Delegated legislation is controlled by the
Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as
it takes account with the statutory committees which make law through bills. The main object of
parliamentary control is to look that there is no abuse or unnecessary use of the powers given to
rulemaking authorities.
There are three kinds of Control given under Delegated Legislation:
Parliamentary or Legislative Control
Judicial Control
Executive or Administrative Control
Parliamentary or Legislative Control
In India “Parliamentary control” is an inherent constitutional function because the executive is
responsible to the legislature at two stages of control.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for the executive
to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines are
given which need to be followed while whether it is mandatory or directory to follow it or not. It
includes three components:
1. Pre-publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
Judicial Control
The court has to see that the power delegated is within the ambit of the constitution as
prescribed. Judicial review is more effective because court do not recommend but it clearly
strikes down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined
under the Constitution of India which clearly indicate that State should not make any law which
abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:
It is ultra vires to the Constitution of India, and
It is ultra vires to the enabling Act.
4. “No person shall be deprived of his property save by authority of law”. Discuss.
Right to Property:
1. Article 300A provides that no person shall be deprived of his property save by authority
of law.
2. This Article was added in the 44th amendment and Articles 19(1)(f) and 31 were deleted.
3. The outcome of the amendment is that the if the right to property is being violated under
Article 300A the person will not be allowed to file a writ jurisdiction under Article 32 in
the Supreme Court but can file a writ petition under Article 226 in the respected High
Court.
4. In the case Jilubai Nanbhai Khachar V State of Gujaratit was held that the right to
property stated under Art 300A is only a constitutional right and not a fundamental right.
5. The government has the right to take the private property of the citizens for public use.
This power is called the Eminent Domain.
6. The properties may be acquired for government offices, libraries, slum clearance projects,
railways and so on.
7. This power is recognized in all the civilized countries.
8. This Article only imposes certain restrictions on the power of eminent domain.
TAX FEE
No tax can be levied or collected without the This prohibition does not apply
authority of law
No direct give-and-take relationship between the The traditional concept that the element of quid pro
taxpayer and the tax-levying authority quo is always a sine qua non for the fee charged.
A taxpayer cannot demand any special favour A fee is a direct payment by those who receives
from the authority in return for taxes paid by him. some special advantages or the government
guarantees the services who pays fees. Fees are,
therefore, deemed to be the by-products of the
administrative activities of the government.
Fees are mostly imposed to regulate or control Objectives of taxation are many. It has no separate
various types of activities. objective. Taxes are levied in the greater interests
of the country
Art 300 says that the gov of India can sue or be sued by the name of the union of
India and gov of state can sue or be sued by the name of the state or of the
legislature of the state.
They can be sued in relation to their affairs in the like cases as the dominion of
India might have been sued if the constitution has not been enacted.
The position in this respect remains the same as it existed before the
commencement of the consti as long as parl makes any law otherwise.
Such liability arises only in the case of “non-sovereign functions”.
In the leading case P. and O. Steam Navigation Co. v. Secretary of State of
India some gov workmen carrying a heavy iron rod were going in the middle of
the road. When the carriage of the plaintiff drove up nearer, the coachmen gave a
warning and slowed its speed. While attempting to get out of the way, the
workmen collapsed and dropped the iron rod. The plaintiff’s horse, on the great
noise resulting from the fall of the iron rod, startled and fell on the iron rod. The
company filed a suit against the secretary of state in council.The S.C held that the
secretary of state for India was liable for the damages caused due to the neg by the
gov servants, because the neg act was not done in exercise of “sovereign power”
UNIT-4
LONG ANSWERS
1. TYPES OF EMERGENCY TO BE DECLARED BY THE PREZ:
One of the chief characteristics of Indian Constitution is the way in which the normal
federal constitution can be adapted to emergency situation.
The constitution provides for 3 types of emergency:
A. National emergency – Due to war, external aggression or armed rebellion (art 352)
B. State emergency – failure of constitutional machinery in states (art 356)
C. Financial emergency – (art 360)
A. NATIONAL EMERGENCY
Article 352 of the Indian Constitution talks about the national emergency.
National emergency is imposed whereby there is a grave threat to the security of
India or any of its territory due to war, external aggression or armed rebellion.
Such emergency shall be imposed by the president on the basis of written request
by the council of ministers headed by the Prime Minister. When they are satisfied
that there is an eminent danger thereof.
Every proclamation is required to be laid before each House of Parliament, it will
cease to operate after one month from the date of its issue unless in the meantime
it is approved by the parliament, the proclamation may continue for a period of 6
months unless revoked by the president. (352 (4))
In Minerva Mills Ltd v UOI, it was held that there is no bar to judicial review of
the validity of a proclamation of emergency issued by the president under Art 352
(1).
For further continuance of emergency, the resolution has to be passed by either
house of parliament by a majority of not less than two-third members of the
houses.
During the times of such emergency the executive, legislative and financial power
rests with the centre whereas the state legislature is not suspended.
The union government under Art.250 of the constitution gets the power to
legislate in regards to subjects enumerated in the state list.
Except Art20 and 21 all the fundamental rights are suspendedA. D. M.
JABALPUR V S. SHUKLA (Habeas corpus case). Under Art.359 the president
may suspend the right to move to the courts for enforcement of fundamental
rights during the time of emergency. (359) CASE LAW: M.M. PATHAK V
UOI [pg 817]
A proclamation may remain in force in the first instance for 1 month. If such a
proc is approved by Prez shall remain in force for 6 months unless revoked earlier
National emergency has been imposed thrice in the country- in 1962 at time of
Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of
internal disturbances
.
B. STATE EMERGENCY:
Article 256 talks about the failure of constitutional machinery in state also known
as the President’s rule. If the president on Governor’s report or otherwise is
satisfied that the situation has arisen that the government can’t be carried in
accordance with the constitutional provisions then, he may issue State emergency.
President can declare emergency either by the report of Governor or he himself is
satisfied that the situation is such that the emergency has to be imposed. But at
times, President may declare emergency when a report is not received from the
governor. This was done by President Venkataraman in 1991 in the state of Tamil
Nadu even though he didn’t receive a report from the governor.
After the 42th Amendment of the constitution the state emergency was made
immune from judicial review. But later in the 44th Amendment the legality of
President’s rule could be challenged.
The proclamation relating to state emergency shall be laid before each House of
Parliament unless both Houses approve it, the emergency shall cease to have
effect after the expiry of a period of two months. Further the duration of
proclamation can be extended to 6 months each time by both Houses of
Parliament passing resolution approving its continuance. Beyond the period of a
year the proclamation can only be continued if the Election Commission certifies
that it is not possible to hold election in the state or that territory.
The consequences of state emergency are
The president assumes all the executive power of the state himself. The state
administration runs by him or any person appointed by him generally the
Governor.
During such proclamation, the state assembly is either dissolved or
suspended. But the MLA’s do not lose their membership of the Assembly.
Parliament makes laws regarding the state list. The parliament only passes the
budget for the state.
The High court of the state functions independently.
President also proclaims ordinances in the state.
During the state emergency the Union government has absolute control over the
state except the judiciary.
If one looks at the past instances of state emergency in the country, three common
grounds emerge that have been invoked under Art.356- breakdown of law and
order, political instability, corruption and maladministration.
In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held
that the presidential proclamation dissolving state assembly in Bihar under
Art.356 was unconstitutional on extraneous and irrelevant ground. The court said
that the state governor misled the centre in recommending dissolution of state
assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High
court produced different opinion about the imposition of the President’s rule in
Karnataka, while in other states the court held that it was in violation of the
constitution and would have restored the original position. It was held that pres
can only dissolve the S.A after the approval of proclamation by both the houses
and not before.
C. FINANCIAL EMERGENCY:
The president under Article 360 of the constitution has the power to declare
financial emergency if he is satisfied that the financial stability or the credit of
India or any part of its territory is threatened.
It has to be laid before both the Houses of Parliament and ceases to operate at the
expiration of two months unless meanwhile approved by the resolution of Houses.
During the operation of financial emergency, the executive authority of the union
extends to the giving of directions to any state to observe certain specified canons
or financial propriety and such other directions that the President may find
necessary. The directions may include reduction of salaries or allowance of those
serving a state, of all those in connection with the affairs of union including
judges of high court and Supreme Court. There has been no occasion of financial
emergency in India.
This chapter was added to the consti by the Constitution (42 nd amendment) Act,
1976. It consists of two articles – Art 323-A & 323-B.
Article 323A provides the establishment of administrative tribunals by law made
by Parliament for the adjudication of disputes and complaints related to the
recruitment and conditions of service of Government servants under the Central
Government and the State Government.
It includes the employees of any local or other authority within the territory of
India or under the control of the Government of India or of a corporation owned
or controlled by the Government.
The establishment of such tribunals must be at the center and state level
separately for each state or for two or more states.
The law must incorporate the provisions for
1. the jurisdiction, power and authority to be exercised by tribunals;
2. the procedure to be followed by tribunals;
3. the exclusion of the jurisdiction of all other courts except the Supreme Court
of India.
4. The transfer of all cases to the tribunals which were pending before any court;
5. Repeal or amend any order made by the prez under clause (3) of Art 371-D
6. Supplementary or incidental or consequential provisions for the effective
functioning of such tribunal.
UOI v Deep Chand Pandey (Pg. 782)
- Articles 323 A and 323 B provide for the exclusion of the matters mentioned
in these Arts from “all courts” except the jurisdiction of supreme court under
Arts. 32 and 136. These Art deprive the GC of their writ jurisdiction under the
Art 226 in matter specified therein.
- The object of this provision is to remove the hurdles in the implementation of
laws providing for socio economic reforms.
In the landmark case of L. Chandra Kumar v. Union of India, the court reached
various conclusions as to jurisdictional powers of the tribunal constituted under
Articles 323A and 323B. The Supreme Court struck down clause 2(d) of Article
323A and clause 3(d) of Article 323B on the ground that they excluded the
jurisdiction of the High Courts and the Supreme Court under Article 226/227 and
32 respectively.
The SC ruled that the tribunals created under Article 323A and 323B would
continue to be the courts of the first instance in their respective areas for which
they are constituted. The litigants are not allowed to approach the High Courts
directly by overlooking the jurisdiction of the concerned tribunal.
The court also held that Sec 28 of the Administrative Tribunal Act, 1985 and the
exclusion of jurisdiction clauses enacted under these Arts will, to the same extent,
be unconstitutional
The courts expressed unhappiness over the functioning of these tribunals and
suggested various measures to be initiated for their effective functioning.
The Malimath Committee, in its report, has pointed out that the tribunals have not
inspired confidence in the public mind and were unable to dispose of cases
speedily resulting in huge backlog of cases.
The Bench 7 judges have now resolved the problem. The court applied the
Doctrine of prospective overruling for saving cases already decided in various
tribunals and those which are still pending in the SC.
The result of this decision is that the tribunals have lost their status but not
jurisdiction. Earlier after losing in a tribunal the aggrieved party could
immediately approach SC for special leave petition under Art 136. Now it will not
be possible to go to the SC directly, without first moving the HC under Art
226/227.
BASIC STRUCTURE:
There is no mention of the term “Basic Structure” anywhere in the Indian
Constitution.
In order to remove difficulties created by the SC in Golak Nath’s case, parliament
enacted the Constitution (24th Amendment) Act, 1971. This Act not only restored
the amending power of the parliament but also extended its scope by adding the
words “to amend by way of addition or variation or repeal any provision in
accordance with the procedure laid down in tis Article”. The validity of the
Constitution (24th Amendment) Act, 1971 was challenged in Keshavananda
Bharati’s case. It has been held that every provision of the constitution can be
amended provided, in the result the basic foundation and structure of the
constitution remains the same.
The basic structure are systematic principles underlying and connecting provisions
of constitution. They are part of constitution even if they are not expressly stated.
The theory of basic structure is based on the concept of constitutional identity
(Nagraj v UOI)
It was the Kesavananda Bharati case that brought this doctrine into the limelight. It
held that the “basic structure of the Constitution could not be abrogated even by a
constitutional amendment”. The judgement listed some basic structures of the
constitution as:
1. Supremacy of the Constitution
2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom
Over time, many other features have also been added to this list of basic structural
features. Some of them are:
- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
- Harmony and balance between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the parliament to amend the Constitution
- Power of the Supreme Court under Articles 32, 136, 142 and 147
- Power of the High Court under Articles 226 and 227
Any law or amendment that violates these principles can be struck down by the
SC on the grounds that they distort the basic structure of the Constitution.
EVOLUTION OF BASIC STRUCTURE: (ANY 5 CASE LAWS)
The concept of the basic structure of the constitution evolved over time. In this section,
we shall discuss this evolution with the help of some landmark judgement related to this
doctrine.
Shankari Prasad v UOI (1951)
- In this case, the SC contended that the Parliament’s power of amending the
Constitution under Article 368 included the power to amend the Fundamental
Rights guaranteed in Part III as well.
Sajjan Singh v State of Rajasthan (1965)
- In this case also, the SC held that the Parliament can amend any part of the
Constitution including the Fundamental Rights.
- It is noteworthy to point out that two dissenting judges, in this case, remarked
whether the fundamental rights of citizens could become a plaything of the
majority party in Parliament.
Golaknathv State of Punjab (1967)
- In this case, the court reversed its earlier stance that the Fundamental Rights can
be amended.
- It said that Fundamental Rights are not amenable to the Parliamentary restriction
as stated in Article 13 and that to amend the Fundamental rights a new Constituent
Assembly would be required.
- Also stated that Article 368 gives the procedure to amend the Constitution but
does not confer on Parliament the power to amend the Constitution. This case
conferred upon Fundamental Rights a ‘transcendental position’.
- The majority judgement called upon the concept of implied limitations on the
power of the Parliament to amend the Constitution. As per this view, the
Constitution gives a place of permanence to the fundamental freedoms of the
citizens.
- In giving to themselves the Constitution, the people had reserved these rights for
themselves.
Kesavananda Bharati v State of Kerala (1973)
- This was a landmark case in defining the concept of the basic structure doctrine.
- The SC held that although no part of the Constitution, including Fundamental
Rights, was beyond the Parliament’s amending power, the “basic structure of the
Constitution could not be abrogated even by a constitutional amendment.”
- The judgement implied that the parliament can only amend the constitution and
not rewrite it. The power to amend is not a power to destroy.
- This is the basis in Indian law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with the basic structure of the
Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)
- Here, the SC applied the theory of basic structure and struck down Clause(4) of
Article 329-A, which was inserted by the 39th Amendment in 1975 on the
grounds that it was beyond the Parliament’s amending power as it destroyed the
Constitution’s basic features.
- The 39th Amendment Act was passed by the Parliament during the Emergency
Period. This Act placed the election of the President, the Vice President, the Prime
Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
- This was done by the government in order to suppress Indira Gandhi’s
prosecution by the Allahabad High Court for corrupt electoral practices.
After the decision od SC inKeshavananda Bharati and Indira Nehru Gandhi
case, the Constitution (42nd Amendment) Act, 1976 was passed which inserted
two new clauses, namely clause (4) and (5) in Art. 368.
Minerva Mills v UOI (1980)
- This case again strengthens the Basic Structure doctrine. The judgement struck
down 2 changes made to the Constitution by the 42nd Amendment Act 1976
(inserting clause (4) & (5) to Art. 368), declaring them to be violative of the basic
structure.
- The judgement makes it clear that the Constitution, and not the Parliament is
supreme.
- In this case, the Court added two features to the list of basic structure features.
They were: judicial review and balance between Fundamental Rights and DPSP.
- The judges ruled that a limited amending power itself is a basic feature of the
Constitution.
Waman Rao v UOI (1981)
- The SC again reiterated the Basic Structure doctrine.
- The Waman Rao case held that amendments made to the 9th Schedule until the
Kesavananda judgement are valid, and those passed after that date can be subject
to scrutiny.
“If amendments help a constitution to survive, they must include changes in the
allegedly basic part of the Constitution”.
SHORT ANSWERS
3. Pg. 806.