LECTURE NOTES FOR CONSTITUTIONAL GOVERNANCE

- Jane Maria Tomy (2013/ballb/020)

LECTURE - 1

WRIT JURSIDICTION UNDER ARTICLE 226

Prerogative writs were used in England by the King against officers to compel them to exercise
their functions or to prevent them from abusing their powers. These writs were used to
administer justice in the public law.

Habeus Corpus bring the body the oldest writ. It is to secure the release of a person
who has been unlawfully detained
Mandamus It is a hard-and fast writ. To require a public authority to perform a duty
owed by law and to public
Prohibition To prevent the inferior courts from exceeding jurisdiction
Certiorari To quash the order given by the court or tribunal without jurisdiction
Quo Warranto To find the authority of the official

When it was applied in India, the courts were given larger powers by the addition of the reliefs
that are in nature of these writs. Difference between India and England is that :-

English Courts cannot decide on Constitutionality of the Laws

FRs are inbuilt to check the legislative power by the Courts

The writ jurisdiction is exercised under Article 226 and 32. The purpose of the writ jurisdiction
under 226 is 1) enforcement of the FRs and 2) any other purpose.

Enforcement of the FRs and any other purpose

Enforcement of FRs : The power under Article 226 is not derogation of Art. 32. The powers
with the Supreme Court is still intact but here, the High Courts share some of the powers for the
local enforcement of the FRs.

Article 13 makes it mandatory for every court to entertain disputes of FRs.

The earlier view was that both Articles 226 and 32 enforces a duty of court to enforce
FRs. Hence, regardless of the alternative right available, courts cannot reject the case.
But later, the judiciary brought in the distinction that Article 32 imposes a duty whereas
Article 226 is a discretionary jurisdiction.

Any other Purpose : The difference between the Article 226 and 32 lies here. Any other purpose
implies the enforcement of any legal right. Here, the powers of the High Court are broad.

The powers of the court shall be discretionary while enforcing the legal rights.
In Sohanlal v. Union of India, the court held that if evidence is required to be taken
regarding the legal rights in question, then, the case maybe sent back to the ordinary
jurisdiction.

Any Person or Authority

It is a public law remedy

It covers all the authorities that can be held as a State under Article 12.
In addition to this, it covers the bodies discharging public function. The criterion is that
the body must be discharging a public law function.
It can be a private body discharging public function too.
To hold that a Body is an authority under Article 12, the court have evolved the test of
whether:- on facts the body is financially, functionally and administratively dominated by
or under the control of the Government.

Zee telefilms ltd. v. UOI, AIR 2005 SC 2677 The court held that BCCI cannot be held as a State
under Article 32 as it was not financially, functionally or administratively dominated by or under
the control of the Government so as to bring it within the expression State.
 But, the test under Article 226 is wider and the court looks at the nature of duties and
functions of an organization.

In BCCI v. Union of India The question of BCCIs jurisdiction under Article 226 was raised
since it was a Private body. The court looked at the nature of duties and functions which the
BCCI performs. It is common ground that the respondent-Board has a complete sway over the
game of cricket in this country. It regulates and controls the game to the exclusion of all others.
Hence,

WRIT JURISDICTION UNDER ARTICLE 32

Article 32 is a fundamental right in itself. Hence, it imposes a duty on the Supreme Court to
guarantee the fundamental rights.

Its horizons are narrower compared to Article 226 :-

as it does not allow enforcement of other legal rights under its jurisdiction.
Further, it can be only enforced against the State as defined under Article 12.

The other differences are :-

Alternative jurisdiction is not a bar under Article 32

Anticipatory Relief can be granted under Article 32.
Jurisdiction under Article 32 cannot be rejected for not praying the proper writ.

PUBLIC INTEREST LITIGATION

It is a departure from the traditional standards of locus standi person aggrieved to

persons interested.
In the case of Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802, the court clarified that
there is no limitation that the FRs sought to be enforced must belong to the person
moving to the court.
 In M C Mehta v Union of India, AIR 1987 SC 1087 - The case widened the scope of
public interest litigation to social interest litigation
But, a busybody or meddlesome interloper must not be entertained under this jurisdiction.

LECTURE NO. 2

NATURE OF JUDICIAL REVIEW

Judicial Review, does not examine the decision. Rather, it examines the illegality, irrationality
and impropriety of the decision making process itself.

Legislative Matters

The tests for the reviewing of legislative functions of the government :-

1) Whether a violation of FRs has occurred?

2) Whether there has been a transgression of Constitutional limitations?
3) Competency of the Legislature

Executive Matters :-

Wednesburys Principle The three tests are as follows :-

1) Administration did not take into account the relevant matters.
2) Administration took into account the irrelevant matters
3) The decision is too absurd for an authority of such a position to be taken
Test of Propotionality is applied herein to see whether the transgression is justifiable on
the basis of public law remedy.
Violation of Natural Justice
Illegality
 Quasi-Judicial Matters

Writ Jurisdiction is only supervisory and corrective only here.

1) Violation of Natural Justice

2) Procedural limitations.
3) Jurisdiction

Where Judicial Review is Excluded :-

Policy, Political Question, Substantive Justice, Act of State, Academic matter.

ORIGINAL JURISDICTION ARTICLE 131

The jurisdiction under the Article is exclusive and self-contained. It neither names the
proceeding under it as a suit and nor does it uses the normal terminologies like cause of
action etc. Instead, it includes terminologies like disputes.
In order to invoke the original jurisdiction, two conditions must be satisfied

1) Parties and

2) Nature of the Dispute

Parties who can Approach under Jurisdiction

Parties :- Union v. State/s; Union & State/s v. State/s; State/s v. State/s.

Nevertheless, it is in the executive capacity of the Government that the State/s or Union
can come under this Article.
In the case of State of Mysore v. UOI, AIR 1968 Mys 237, UOI v. State of Mysore, AIR 1977 SC
127, the dispute was regarding the excisability of the goods manufactured in the States
Implements Factory.

The Supreme Court held that the Union of India was made a party to the writ petition merely
because it had dismissed the revision application (under the authority of the Tribunal) of the
State Government. An indirect interest in the collection of the revenue in the form of excise
duty is far too slender a foundation for the postulate that in every controversy arising under the
provisions of the Central Excise Act, the Central Government is necessarily a disputant.

Parties should only be constitutent units of federation. Hence, where private parties are
involved, the case shall be rejected

In the case of Tashi Delek Gaming Solutions Ltd. v. State of Karnataka (lottery), the States of
Sikkim and Meghalaya filed under Article 131 against State of Karnataka for banning online and
internet lotteries. They, along with the lottery agents, also maintained separate writ petitions
against State of Karanataka. Court held that the lottery agents had a separate independent cause
of action and had a legal right to maintain writ application. Hence, a suit in terms of Article
131 is not maintainable.

In the case of State of Bihar v. UOI, AIR 1970 SC 1446, the State of Bihar filed a number of
suits against Union of India, Hindustan Steel Ltd. and Indian Iron & Steel Co. Ltd. under Art.
131 in connection with the delayed delivery of iron and steel materials for its Gandak
project. The specification of the parties in Art.131 is not of the inclusive kind. The express words
in cls. (a), (b) and (c) of the Article exclude the idea of a private citizen, a firm or a corporation
figuring as a disputant.

The Government shall not be engaged in the dispute in its commercial or contractual
capacity.

In Union of India v. State of Rajasthan, The respondent, filed a suit in the court of the District
Judge, Balotra against Union of India, and the Railway Administration claiming damages for the
loss suffered by it on account of the damage caused to the goods transported by rail. The
District Court rejected the petition by holding maintainability under Article 131. The Supreme
Court held that where parties act in commercial capacity, the article 131 shall not be attracted.
Thus, the terms Union or State shall represent the interests of the people of its respective
territories. Hence, held that the petition is maintainable in District Court.

Interpretation of Government of India

In State Of Rajasthan & Ors. Etc. Etc v. Union Of India 1977 AIR SC 1361, it was argued that
the usage of the term State, unlike Government of India excludes a dispute of the State
Government body with other State/s or Union from the purview. But, the majority held that
Government of India refers to UOI. Seervai, in fact, disagrees with this reasoning. He opines that
Govt. of India is a drafting error and reliance must be placed on legislative history. UOI v.
State of Rajasthan, AIR 1984 SC 1675.

Also, State shall not receive the definition in Art. 12.

Nature of the Dispute

Exclusion of Political Disputes - As Seervai had opined, the very term If and in so far as
the disputelegal right implies that the makers wanted to exclude political disputes.
Violation of Legal Right is not Required. Under this jurisdiction, the SC can allow only a
dispute on which the existence or extent of a legal right shall depend. It does not say
that the legal right should be violated.

In United Provinces v. Governor General, AIR 1939 FC 58, the question was regarding whether
there was a legal right for the Provinces to recover fines from the Governor General in Council.
The court held that the nature of the right must be legally recognized and protected (by rule of
law) and it is not necessary to be enforceable in the court. Hence, also includes equitable rights.

Nevertheless, all these rights must appertain to the Govt. in Office.

Scope of the Remedies

In State of Bihar(supra), the court had declared that it relates only to the adjudication of
the legal questions involved. But this view has been rejected in the subsequent cases, as
under Section 143, the SC has vast powers to give relief.
 Subject to - to exclude water disputes or References to the SC etc. In State of
Haryana v. SO Punjab, AIR 2002 SC 685, it was decided that Only question of non-
implementation of the binding decision of the water disputes can be questioned.

LECTURE NO. 3

ARTICLE 132 CONSTITUTIONAL APPELLATE JURISDICTION

In State of J&K v. Ganga Singh, AIR 1960 SC 356, it was held that the principle
underlying the article is that the final authority of interpreting the constitution must rest
with the Supreme Court. Hence, it is freed from limitation which are imposed on the
other Articles from 133-135.
The appeal can be raised from a judgment, decree, final order or other proceeding. The
test to determine a final order is whether the order finally disposes of the rights of the
parties.
Other proceeding was added to the language of Section 205(1) of the Government of
India Act, 1935 to widen the ambit above the civil and criminal jurisdictions. Eg.
Revenue proceedings.

Condition to issue Certificate of Appeal

1) it must have a substantial question of law

2) must concern with interpretation of constitution

3) applicant must be a party to the proceedings

The test to determine the substantial question was provided in Sir Chunilal Mehta & Sons Ltd. v.
The Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314.

1) Whether it is of general public importance or substantially affecting the parties rights

2) Questions of laws which have not been settled by the courts or if any alternative
interpretation is possible.
Nevertheless, Supreme Court is not bound by the certificate of appeal. It can reject the appeal if
it finds it to be irrelevant.

Single Judge granting Certificate of Appeal

In the case of Election Commission v. Saka Venkatan, the Supreme court held that a
single judge can directly provide a certificate of appeal.
But, in the controversial case of RD Aggarwala v. UOI, AIR 1971 SC 299, it was held
that the parties must be given chance to go before the division bench.
But this viewpoint was rejected by Seervai and in DD Basu, as there was no
constitutional basis for this arguments.
Constitutional Bench Article 145(3)

ARTICLE 133 CIVIL APPELLATE JURISDICTION

Appeal Shall Lie :- Once the conditions of clause (1) is satisfied, the high court has to issue the
certificate of appeal.

Civil Proceeding any suit enough to cover any proceedings of a civil nature. It is on the
infringement of civil rights and imposes civil penalties like compensation, damages etc:.

Conditions to grant the Certificate of Appeal

Before, the amendment of 1973, the conditions are :-

a) a suit with a minimum value of Rs. 20,000/- or

b) regarding property of the like value or
c) if the case is fit to appeal or involves a substantial question of law.

Now, there are two tests :- 1) substantial question of law of general importance and

2) questions of law which needs to be decided by Supreme Court

This amendment excluded the matters of private importance. Also, the clause (c) prior to
amendment was very wide in terms of ambit.

Clause (3).
 LECTURE NO. 4

ARTICLE 134 CRIMINAL APPELLATE JURISDICTION

Difference with the above provisions is that for clauses (a) (b), there is no discretion
with the HC while granting the certificate of appeal.
In Siddeshwar v. State of UP, the court interpreted Clause (c) and held that certificate
shall be granted only for exceptional and special circumstances or where there is a
substantial question of law.

SPECIAL APPELLATE JURISDICTION

The reason (my opinion) why the constitution states Notwithstanding anything in this
Chapter is to emphasis the utter discretion of the Supreme Court which is devoid of
any constitutional limitations.
In Janardhan v. Reddy, the court held that the article is only prospective and the court of
Nizam cannot be held as any court in India.

The Nature of the Power

The const. have purposely chosen wide words as this article wields extraordinary power
which overrides the normal procedure of suits. The extraordinary power is hinted in the
non-obstante clause itself.
It is depended on Supreme Court discretion, hence. In another way, it does not confer a
right of appeal. Only a discretion. Power is with the Supreme Court.
NO limitations are put in that article.
It provides for an equitable remedy. The exercise will be governed by the well-
established principle which guides the overriding constitutional powers.

Tests :- Allowed only during manifest injustice or substantial question of public importance.
 ARTICLE 137 & CURATIVE PETITION

Nature of the Review power :- although there are no limitations within the article, it
must be used only during exceptional circumstances such as to correct
o grave error
o per incuriam decisions
o miscarriage of justice
In civil cases, as per the XL of the Supreme Court Rules, O47 Rule 1 of CPC applies to
the review petitions.
In criminal cases Order 40 of the Supreme Court provides that the petition should be
allowed only if the error is apparent on the face of the court.
Review petition is to be filed within thirty days from the date of judgment or order and as
far as practicable, it is to be circulated, without oral arguments, to the same Bench of
Judges who delivered the judgment or order sought to be reviewed.
Review is the last means to go for a modification of the judgment.

CURATIVE PETITION LECTURE NO. 5

The concept of Curative petition was evolved by the Supreme Court of India in the matter of
Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an
aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court,
after dismissal of a review petition. The Supreme Court in the said case held that in order to
prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its
judgements in exercise of its inherent powers.

It is available in the rarest of the rare cases.

It can be used by an aggrieved person who was not a party to the proceedings or was not
heard. It can also be filed where a judge failed to disclose his/her connection in any
manner with the subject matter before him/her.
It can be allowed only on the grounds of

1) violation of natural justice

 2) biased-ness of the judge

3) abuse of the process of the court

4) miscarriage of justice.

Procedural Propriety :-

1) grounds must be same as that of review petition

2) A senior advocate must certify to the requirements of the filing of the petition

Who will hear Curative Petition? The judges who had decided the case and three- senior
most judges must consent (in majority) for admitting this petition.

Transfer of Cases
Under Article 139A

Tests : - Invoked where the cases are of substantial and of great importance. It also reduces the
multiplicity of proceedings.

LAW UNDER ARTICLE 141

This Article read with Art.144 secures the supreme position of the Supreme Court.
It declares the law for the nation and mandates all the courts to follow it.
But, it has the power to only declare the law not to enact. Hence, it can underline what is
already existing. In Golak Nath v. State of Punjab, AIR 1967 SC 1643, the court held that
It is wider than the words found or made. To declare is to announce an opinion.
Interpretation, ascertainment and evolution are part of this formation of opinion.
Therefore, the obiter dicta is not a final declaration of the law. It is the ratio decidendi
which is the interpretation of legal points of law raised in the dispute accompanied by the
dispute that forms the law of the court.
 The lower courts have to mandatorily follow this law unless the ratio doesnt apply to the
case at hand. In case of conflicting decisions, it has to prefer the larger bench.
The doctrine of Stare decisis is not strictly applied. Espectially to the Constitutional
disputes. Following the US Precedents.
Prospective Overruling is an innovation of the court to prevent uncertainty or litigation.
When they are concurring, it is accepted 1) unless expressly denied 2) unless forms a
ratio depending on the law
To be Noted :
o Per incuriam not binding
o Bound by the principle
o If the material facts and issues are not identical, not binding
o Precedent Sub Silentio not binding