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MODEL ANSWER PAPER DEC-2016

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I SEMESTER 3 YEARS LL.B. / V SEMESTER

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5 YEARS B.A. LL.B.

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SUBJECT: CONSTITUTION
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 AL-AMEEN COLLEGE OF LAW

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MODEL ANSWER PAPER DEC-2016

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I SEMESTER 3 YEARS LL.B. / V SEMESTER 5 YEARS B.A. LL.B.

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SUBJECT: CONSTITUTION

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Duration : 3 Hours Max. Marks: 100

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Instructions: 1. Answer Q. No 4 & 5 and any two of the following question in Part-I

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2. Answer Q. No 9 & 10 and any two of the following question in Part-II.

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3. Marks are indicated against each Question.

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PART-I

Q.No.1. Explain “State” as provided under Art.12 of the Constitution with reference to decided
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cases. 16 Marks
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Synopsis:
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Introduction
Meaning and Definitions
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Analysis of Concept of State with Decided Cases

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Conclusion
Introduction
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Article 12 OF the constitution defines the term State, It lays down, In this part, unless the
context otherwise requires, the state includes the Government and Parliament of India and the
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government and the legislature of each of the states and all local or other authorities within the
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territory of India or under the control of the government of India.”

Meaning and Definition of State as per Constitution of India-Article 12
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Article 12 of Constitution: The word "State" has different meanings depending upon the
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context in which it is used. The expression "The State" when used in Parts III & IV of the
Constitution is not confined to only the federating States or the Union of India or even to both.
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By the express terms of Article 12, the expression "the State" includes :
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1. The Government and Parliament of India, i.e., Executive and Legislature of union of
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India.
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2. The Government and the Legislature of each State i.e., Executive and Legislature of
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States.

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 3. All local or other authorities within the territory of India.

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4. 4. All local and other authorities under the control of the Government of India.

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The term state thus includes executive as well as legislative organs of the Union and

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States. It is, therefore, the actions of these bodies that can be challenged before the Courts as

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violating fundamental rights.

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Analysis of Article-12 of the Constitution with Decided Cases

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(a) Authorities: According to Webster’s Dictionary, “Authority” means a person or body

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exercising power to command. In the context of art.12, the word ‘authority’ means the
power to make laws, orders, regulations, bye-laws, notifications etc. which have the force

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of law and power to enforce those laws.
(b) Local Authorities: Local authorities as defined in section-3 (31) of the General clauses

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Act refers to authorities like: Municipalities, District Boards, Panchayats, improvement
Trust and Mining Settlement Boards.

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(c) Other Authorities: In Art-12 the expression ‘other authorities’ is used after mentioning a
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few of them, such as, the Government, Parliament of India, the government and
legislature of each states and all local authorities.
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In University of Madras vs. Santa Bai, the Madras high court held that the
‘other authorities’ could only indicate authorities of a like nature i.e., ejusdum generis.
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So construed, it could be only mean authorities exercising governmental or sovereign

functions. It cannot include persons, natural or juristic, such as, a University unless it is
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maintained by the State.

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But in Ujjammbai vs. State of U.P., the court rejected this restrictive
interpretations of the expression ‘other authorities’ given by the Madras High Court and
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held that the ejusdum generis rule could not be resorted to in interpreting this expression.
In Article 12 the bodies specifically named are the Government of the Union and the
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States, the Legislature of the Union and the States and Local Authorities.
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In Electricity Board, Rajasthan vs. Mohan Lal, the Supreme Court held that the
expression ‘other authorities’ is wide enough to include all authorities created by the
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Constitution or Statute on whom powers are conferred by law. It is not necessary that the
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statutory authority should be engaged in performing governmental or sovereign function.

In Rajasthan Electricity Boards, decision the Supreme Court overruled the decision of
Madras High Court in Santa Bai case, holding a University not be ‘the state’. And finally,
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the Patna High Court, following the decision of the Supreme Court, has held the Patna
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University is ‘a State’.
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In one of the case it has been held that Oil and Natural Gas Commission, Life
Insurance Corporation and Industrial Finance Corporation, are authorities under Article
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12 of the Constitution and therefore they are State.

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 In Airport Authority’s Case, it has been held that if a body is an agency or

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instrumentality of government it may be an ‘authority’ within the meaning of Article 12

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whether it is a statutory corporation, a government company or even registered society.

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Accordingly it was held that the International Airport Authority which had created by an

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Act of Parliament was the ‘State’ within the meaning of Article 12.
In Ajay Hasia vs. Khalid Mujib, it has been held that a Society registered under the

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Societies Registration Act, 1898, is an agency or ‘instrumentality of the state’ and hence

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‘state’ within the meaning of article 12.

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Q.No.2. Explain the Principle of Equality as laid down under Art.14 of the Indian Constitution.
Synopsis:

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Introduction

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Significance of Right to Equality under Article 14
Principles Laid down under Article 14

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Conclusion
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Introduction:
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Equality is one of the basic element of democracy. Right to Equality means equality in
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all forms i. e., legal, civil and social. The object of right to equality is to secure to the citizens
equality in all its form. Articles 14 to 18 of the Constitution guarantees the Right to Equality to
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every Citizen of India and also to Aliens.

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Significance of Right to Equality under Article 14

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Article 14 embodies the general principles of equality before law and prohibits
unreasonable discrimination between persons. Article-14 declares that the State shall not deny to
any person equality before law and equal protection of law within the territory of India. Article -
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14 is based upon the principle of natural justice. “Equals have to be treated equally and unequal's
have to be treated unequally”. Article 14 of the constitution guarantees that all citizens shall be
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equally protected by the laws of the country. It means that the State cannot discriminate any of
the Indian citizens on the basis of their religion, race, caste, sex or place of birth.
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No one can be favored more and no one can be unflavored more. Equal law should be
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applied to all persons in the same situation. There should not be any discrimination to person to
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person. The rule of law embodied in the Article-14 is the basic feature of the Indian Constitution
and it cannot be destroyed even by an amendment to the constitution. The words any person in
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Article 14 denotes that the equal protection of law is available to any person who includes any
company or association or body of individuals. The Article-14 extends to both citizens and non-
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citizens and to natural persons as well as legal persons.

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 Principles Laid under Article 14:

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Article 14 declares that the state shall not deny to any person equality before the law or equal

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protections of the laws within the territory of India. Thus Article 14 uses two expressions

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“equality before law” and “equal protection of law”. Article 14 is based upon the principles of
natural justice. Equals have to be treated equally and unequal ought not to be treated equally.

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1. Equality Before Law:-

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Equality before law in Article 14 is based on the principles of Rule of law. No man is above the
law of the land. There is no distinction before the law. The concept of equality before law does

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not mean absolute equality among human beings which is physically not possible to achieve. It is
a concept implying absence of any special privileges by reason of birth, creed or like in favour of

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any individual and also the equal subjects of all individuals and classes to the ordinary law of the

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land.

Equality before the law means that among equals the laws should be equal and should be equally

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administered, that like should be treated alike. The right to sue and be sued, to prosecute and be
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prosecuted for the same kind of action should be same for all citizen of full age without
distinctions of race, religion, wealth, social status or political influence.
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2. Equal Protection of Laws:-

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Equal protection of law is a positive concept, implying equality of treatment under equal or
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similar circumstances. No one can be favoured more and no one can be unfavoured more. Equal
law should be applied to all persons in the same situation. There should not be any
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discrimination between one person to another. Equality must becomes a living reality for the
large masses of people. Article 14 applies to citizens and non- citizens of India. It only means
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that all persons similarly circumstanced shall be treated alike both in privileges conferred and
liabilities imposed by the laws. Equal law should be applied to all in same situation, and there
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should be no discrimination between one person and another.

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3. Exceptions to the Rule of law:

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The rule of equality is, however not an absolute rule and there are number of exceptions.
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Firstly, equality before law does not mean the “powers of the private citizens are the same as the
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powers of the public officials

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Secondly, the equality before law does not prevent certain classes of persons being subject to
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special rules.

Thirdly, today ministers and other executive bodies are given very wide discretionary powers by
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statute.

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 Fourthly, certain members of society are governed by special rules in their professions i.e.

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Lawyers, Doctors, Nurses, Members of Armed forces and Police such classes of people are

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treated differently from ordinary citizens.

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4.Article 14 permits classification but prohibits class legislation:-

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The equal protection of laws guaranteed by Article 14 does not mean all laws must be general in

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character. It does not mean that same law should apply to all persons. It does not mean that every
law must have universal application for. Thus Article 14 forbids is class- legislation but it does

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not forbid reasonable classification. The classification, however, must not be “arbitrary, artificial,

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or evasive” but must be based on some real substantial distinction bearing a just and reasonable
relation to the object sought to be achieved by the legislation.

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Test of Reasonable Classification: while Article 14 forbids class legislation, it does not forbid

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reasonable classification of persons, objects and transactions by the legislature for the purpose of
achieving specific ends. But classification must not be “arbitrary, artificial or evasive”. It must

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always rest upon some real and substantial distinction bearing a just and reasonable relation to
the object sought to be achieved by the legislature. Classification to be reasonable must fulfill the
following two conditions:-
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1. The classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from other left out of the group; and
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2. The differentia must have a rational relation to the object sought to be achieved by the
Act.
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Thus, the legislature may fix the age at which persons shall be deemed competent to contract
between themselves but no one will claim that competency. No contract can be made to depend
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upon the stature or color of the hair. Such a classification will be arbitrary. If the classification
satisfies the test laid down in the above propositions, the law will be declared Constitutional.
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Leading Case- laws on right to Equality:

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In Sunil Jately v. State of Haryana: the reservation of 25 seats for admission to M.B.B.S. and
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B.D.S. course for students who were educated from classes I to VIII in common rural schools
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was held to be violative Article 14 and invalid as the classification between the rural educated
and urban educated students for this purpose was wholly arbitrary and irrational having no nexus
to the object sought to be achieved of providing extra facilities to students coming from rural
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schools to enter medical college.

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In A.K. Abbas v. Union of India: the validity of cinematograph Act, 1952 was challenged on
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the ground that it makes unreasonable classification. Under the Act, cinema, films were
classified into two categories, viz. “U” films and “A” films according to their suitability for
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adults. It was argued that the motion pictures as a form of expression was, entitled to equal

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 treatment with other forms of expression. The Court held that the treatment of motion pictures

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must be different from that of other forms of art and expression due to, itsd versatility, realism

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and its co-ordination of the visual real senses. The motion picture is able to stir up emotions

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more deeply than any other product of art. Its effect particularly on children and adolescent is

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very great since their immaturity makes them more willingly suspend their disbelief than mature
men and women. They also remember the action in the picture and try to imitate what they have

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seen. Therefore, the classification of films into two categories is a reasonable classification.

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Ramakrishna Dalmia v/s Justice Tedndolkar [ AIR1958 SC 538] :In this case the Supreme

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Court held that Article 14 protects all persons from discrimination by the legislative as well as

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the executive organ of the state. Article 14 forbids class legislation it does not forbid reasonable
classification for the purpose of legislation.

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Air India V/S Nargesh Meerza and others [AIR 1981 SC 335]: In this case was filed by the

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Air hostesses of Air India who challenged the rules of Air India contending that there was too
much gender discrimination between the male crew and air hostesses from the appointment stage

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to the retirement stage, promotions, emoluments etc. The Supreme Court gave the judgement in
favour of the petitioners, i. e. air hostesses, holding that too much discrimination was shown by
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Air India. The Supreme Court also held that the clauses regarding retirement and pregnancy were
unconstitutional and struck them down. As a result of the Supreme Court judgement, the period
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of retirement of air hostesses was extended upto 45 years.

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State of Madras V/S Champakam Dorairajan: The Madras Government had reserved seats in
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state medical and engineering colleges for different communities in certain proportions on the
basis of religion, race and caste. The state defended the law on the social justice for all sections
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of the people. But the Supreme Court held the view that the law is void because it classified
students on the basis of caste and religion.
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Q.No.3. Discuss the relative importance of the Fundamental Rights and Directive Principles of
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State Policy with the help of decided cases. 16 Marks

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Synopsis:
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Introduction
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Purposes for insertion of Part III and IV in the constitution of India

Relation between Directive Principles of State Policy and Fundamental Rights
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Conclusion
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Introduction
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An individual to lead a life requires some rights. Rights have been described as those claims
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of an individual that are necessary for the development of his oneself and recognized by society
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or state. Some of rights that are recognized by the state and enshrined in the constitution are

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 called fundamental rights. Fundamental rights are those rights of an individual that are

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enforceable through courts of law.

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The fundamental rights that are provided in the constitution can be divided into six categories are

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as follows;

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1. Right to Equality (Articles 14 to)

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2. Right to Freedom (Articles 19-22)
3. Right against Exploitation (Articles 23-24)

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4. Right to Freedom of Religion (Articles 25-28)

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5. Cultural and Educational Rights (Articles 29-30)
6. Rights to constitutional remedies. (Article-32-35)

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Directive principles of state policy are included in part IV of the Indian constitution. Indian

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constitution is one among few constitution of the world that has incorporated such provisions as
a part of the main body of the constitution. The constitution makers were inspired to include

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directive principles of state policy in the constitution by the constitution of Ireland.One of main
objectives of the constitution makers in including such a provision in the constitution was to lay
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down certain principles for the guidance of the governments. While formulating their policies the
Governments are expected to according to these principles.
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During the freedom struggle of India our national leaders had made promises regarding the
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fundamental rights that the citizens of free India should get, these fundamental rights included
not only civil & political rights but also social & economic rights. But when India got
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Independence the leaders realized that it would not be possible for them to grant immediately
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some of the social & economic tights that they had promised in the past. But at the same time
they did not want to go back on hurdle. They assigned this task to a sub – committee of the
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constituent assembly. The sub-committee suggested that the fundamental rights should be
divided into two categories. Some rights could be granted immediately and others may be
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granted in future, if and when the country was in position to grant them. This was the genesis of
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the two parts of the constitution. Part three of the constitution deals with fundamental rights
while part IV relates to directives principles of state policy.
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The Fundamental Rights are defined as the basic human rights of all citizens. These rights,
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defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste,
creed or gender. They are enforceable by the courts, subject to specific restrictions. The
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Directive Principles of State Policy are guidelines for the framing of laws by the government.
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These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the
principles on which they are based are fundamental guidelines for governance that the State is
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expected to apply in framing and passing laws.

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Purposes for insertion of Part III and IV in the constitution of India

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 The framers of the Indian constitution were aware that there were other constitutions

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which had given expression to certain ideals as the goal towards which the country should strive

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and which had defined the principles considered fundamental to the governance of the country.

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The framers of the Indian constitution, therefore, headed the constitution of India with a

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preamble which declared India’s goal and inserted parts III and IV in the constitution.

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Relation between Directive Principles of State Policy and Fundamental Rights:

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The genesis and objectives underlying part III and part IV have common desideratum in

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responding to the social consciousness rest with the constitution making force. Which

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fundamental rights focus on interests of personality, the Directives principles look on to the
welfare of society. Judicial remedies for fundamental rights and non justice able of directive

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principles are the deliberate strategies of the constitution. The dichotomy between part III and
part IV and the supremacy of former over the latter a theory based on formalistic and too textual

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an interpretation in Champakam Dorairajan did not last for long time.

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A government order of the Madras government divided seats in colleges on the basis of
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religion and caste. This was repugnant to article 29(2). But it was argued that the government
order could be supported on the basis of article 46 of the constitution which makes the state
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responsible for promoting the education interests of the weaker sections of people. The Supreme
Court held that the fundamental rights under Article 29(2) over the Directive principle under
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article 46. So the government order was struck down. It was held that in case of any conflict
between part III and part IV, the part III would prevail. These observations of the court were
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based on the literal interpretation of the provision of article 37 which declares the directive
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principle not justifiable. A remarkable change had come over in the judicial attitude on the
question of inter relationship.
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In Inre Kerala Education bill The Supreme Court observed “though the directive
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principles can not override the fundamental rights, nevertheless, in determining the scope and
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ambit of fundamental rights the court could not entirely ignore the directive principle but should
adopt the principle of harmonious construction and should attempt to give effect to both as much
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as possible. The Supreme Court began to assert that there is “no conflict on the whole” between
the fundamental rights and the directive principles. They are complementary and supplementary
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to each other.
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In Chandrabhavan and Kesavananda Bharati cases inaugurated a new era of integrationist

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approach which could emphasis the under pinning of interrelated value of part III and part IV,
Kesavananda Bharati’s case stood for penetration of the notion of distributive justice under
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Article 39(b) and (c) into the property relations by upholding the constitutionality of Article 31c.
the legislative contributions through agrarian and economic reforms, labor welfare and other
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social justice statutes have by focusing on social welfare, ultimately enhanced the worth of

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 fundamental rights. Judicial review, by removing unreasonable provisions monitored this

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process. In practice, the interconnections of rights are more sensitized when the government

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takes the directive principles of state policy seriously.

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In Minerva Mills Limited v/s Union of India The court observed that the constitution was
founded on the bed-rock of balance between part III and part IV. To give absolute primacy to

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one over the other was to disturb the harmony of the constitution. This harmony and balance

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between fundamental rights and the directive principles is an essential feature of the basic

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structure of the constitution. Both the fundamental and directive principles of the state policy are
embodying the philosophy of our constitution, the philosophy of justice social economic and

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political. They are the two wheels of the chariot as an aid to make social and economic
democracy a truism.

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In Bandhua Mukti Morcha v/s Union of India. The approach of sticking to strict legalism

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in the implementation of laws enforcing directive principles, which in turn promote fundamental

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rights, has increased the role of directive principles in the inter-relationship doctrine.
The integrative approach towards fundamental rights and directive principles or that the both
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should be interpreted and read together has now come to hold the field. It has now become a
judicial strategy to read fundamental rights along with Directive principles with a view to define
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the scope and the ambit of the former. Mostly, directive principles have been used to broaden
and to give depth to some fundamental rights and to imply some more rights therein for the
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people over and what are expressly stated in the fundamental rights.
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By reading article 21 with the directive principles, the Supreme Court has expanded the
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horizon of article 21 and derived there from different rights of the citizen. Some of them are;
Right to life includes the right to enjoy pollution free water, air and environments. The court has
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derived this right by reading article 21 with article 48A.

Right to health has been recognized as fundamental rights of the workers under article 21.
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Article 23 and 24 deal with right against exploitation. Those articles reflect the principles of
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article 39c. the directive principles that the tender age of children and not abused and the
children are given opportunities and facilities to develop in a healthy manner and in conditions of
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freedom and dignity and that childhood and youth are protected against exploitation and against
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moral and material abandonment are supported by the post Maneka jurisprudence of rights of
children under article 21 and 24. In Asad and Salal Hydro project cases, the Supreme Court
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applied article 24 along with article 21 to prohibit child labor being influence by the above
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directive principles. Right to education under article 21A is to be understood with reference to
directive principles contained in article 41 and 45.
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It is necessary to look into interrelationship between specific directive principles and

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fundamental rights in active practice. The central theme of directive principles is human
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development with distributive justice, aims at upward movement of the entire social system by

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 making more people better off without making others worse off. The interrelationship between

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the two results in greater freedom and autonomy to all people, reduction of disparity in access to

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resources and opportunities and sustainability of environment. Although directives principles is a

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policy, because of its importance to human rights values, its elevation to principle has taken

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place through the inter-relationship, at least in core areas.

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I. Directive Principles of state policy, which are related to distributive justice, molded the

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property relations by influencing the inter-relationship doctrine both directly strive for promoting

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justice, social, economic and political, in the social order. According to article 39(b) and (c), the
state shall direct its policy towards equitable distribution of the material resources of the

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community, and non-concentration of wealth and means of production to the common detriment.
Article 38(2) directs state to minimize inequalities in income and status amongst individuals and

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groups of people residing in different areas or engaged in different vocations. The protection of

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agrarian reform legislations under Article 31(4) and (6) was a manifestation of achieving these
goals in property relations. The post Kameshwar Singh development of incorporating articles

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31A and 31B into the constitution was for promoting the policy of distributive justice. This
meant the philosophy underlying article 39b and (c) in the sphere of property relations became
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established after the incorporation of article 31c. This provision immunizes the laws providing
for implementation of Directive principles enshrined in Article 39(b) and (c) from any challenges
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based on articles 14, 19 and 31. It was in 1971 that the first step was taken to provide supremacy
for directive principles in the form of article 31c which was added to the constitution by the
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constitution twenty fifth amendments Act, 1971. The effect of the insertion of articles 31c was to
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provide supremacy for directive principles contained in articles and 39(c) over fundamental
rights contained in articles 14, 19 and 31. It enhanced the utility of directive principles which had
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stood the testimony of the Supreme Court in Kesavananda Bharti v/s State of Kerala The Court
observed: In building up a just and social order it is sometimes imperative that the fundamental
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rights shared be subordinated to directive principles, economic goals have no uncontestable

claims for priority over ideological ones on the ground that excellence comes only after
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existence. It is only if men exist that there can be fundamental rights.

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II. The inter-relationship doctrine is very much influenced by article 39A providing for equal
justice and free legal aid the justice delivery system. According to article 39A. The state shall
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secure that the operation of the legal system promotes justice, on a basis of equal opportunity and
shall in particular provide free legal aid, by suitable legislation or schemes or in any other way to
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ensure that opportunities for securing or other disabilities. The role of this provision was pivotal
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in removing the impediment of poverty in one’s access to grievance redressed system

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III. The directive principles that the state shall strive to secure its citizens right to an adequate
means of livelihood and make effective provision for securing rights to work article 41 provided
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a basis for the supreme court in olga tellis to locate right to livelihood in right to life under article
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21, at least the circumstance of deprivation of that right. The post Maneka approach of just a fair

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 and reasonable procedure become a handy instrument in this regard similarly various positive

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rights of life like right to food, health, environment and education were evolved by emphasizing

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on the relevant directive principles of state policy. It is important to note that the language of

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these provisions hinted the limitation of the scope of the positive rights also. This enabled a

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pragmatic approach with regard to positive rights.

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IV. The directive principle that “tender age of children are not abused” and article 39(f) could

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give impetus to and also get supported by the post Maneka jurisprudence of rights of children

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under articles 21 and 24. In Asiad construction and Salal hydro project cases the Supreme Court
applied Article 24 in collaboration with article 21 to prohibit child labor being partly influenced

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by the above directive principles. In Lakshmikanth Pandey a case concerning transnational
adoption to conform to article 14, and 21 The PIL cases relating to rights of children under

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custodial detention also reflect similar approach.

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V. The directive principles of “Equal pay for equal work” and “participation of workers in

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management” were received through right to equality under article 14 into part III in Randhir
Singh v/s UOI and national textile workers Union v/s P.R. Ramakrishna cases, and in turn
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assisted freedom of occupation under article 19(1) or right to livelihood under Article 21. In
consumer education and research centre v/s UOI by reading article 21 with articles 39(c), 41, 43
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and 48A K. Ramaswamy J held for the court, “The health and strength of the worker is an
integral facet of right to life”.
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VI. The directive principles relating to uniform civil code has to potentiality of using the
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interrelationship doctrine for its implementation. Application of articles 14, 19, 21 in examining
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the constitutionality rights or right to maintenance has shown the permeability of these noble
principles into personal laws will be compelled to conform to these standards, and hence uniform
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of constitutional spirit will persuade for uniform standards. In John Vallmattam v/s UOI where
section 118 of Indian success Act 1925 which discriminated between religious communities in
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the matter of allowing death bed bequests was struck down as violative of articles 14, 15, 16 and
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26. The Supreme Court emphasized the need to effectuate the policy of uniform civil code.
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VII. Articles 46 of DPSP provides a guidance for affirmative actions under articles 15(4) and
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16(4) and a pointer for resonant the tension between formal and substantive equality by laying
emphasis on infusing of strength and ability to compete, through education and training to the
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weaker sections.
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VIII. The directives principles that the state shall Endeavour to foster respect for international
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law and treaty obligations articles 51 has a great potentiality of absorbing the international
principle relating to guarantee of human rights , and thus influence the inter-relationship
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doctrine.
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 Conclusion:

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The inter-relationship doctrine between fundamental rights and directive principles of

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state policy is not only theoretical but also practical and rewarding. Fundamental rights provide

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for political freedoms to the citizens by protecting them against excessive state action while
directive principles are to securing social and economic freedom by appropriated action both are

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inspiration of reform legislation. The fundamental rights should be interpreted in the light of

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directive principles to observe the limits set by directive principles in the scope of the

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fundamental rights. For example article 39, 39-A can be interpreted with article 21 of the
constitution and article 46 can be interpreted with article 29 and 30 of the constitution.

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The judicial attitude has undergone transformation where courts are very active to uphold

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the fundamental rights enshrined in the constitution thereby interpreting the provisions of part-IV
i.e. Directive Principles of State Policy. Initially, the courts adopted a strict and literal legal

RE
position in interpreting part-III with part-IV of the constitution which is reflected in State of

LO
Madras V/S Champakam Dorairajan. It was held in case of conflict between part-III and part –IV
the fundamental rights will prevail. In the course of time, change came over the judicial attitude
GA
as the apex court views the interplay between part-III and part-IV in different manner from that
of Champakam Dorairajan’s case and held that there is good deal of value for directive principles
AN

of state policy from legal point of view and started to have harmonize between the two parts of
constitution. The author has made an attempt to show core area of interaction part-III and Part-IV
,B

in the above paragraphs of this article .In the recent decisions of the apex and high courts there
W

has been a changing trend by making a harmonious construction between part-III and part-IV of
the constitution making directive principles of state policy justifiable and enforceable on par with
LA

fundamental rights of the constitution.

OF

Q.No: 4 Write Short on any One of the following 08 Marks

E

(a) Ex-Post Facto Laws

EG

Article 20(1) of the constitution says, “ No person shall be convicted of any offence
LL

except for violation of a law in force at the time of the commission of the act charged as an
offence, nor he subjected to a penalty greater than that which might have been inflicted under the
CO

law in force at the time of commission of the offence.

Article 20(1) corresponds to the provisions against ex-post-facto laws of the American
N

constitution. Ex-post-facto-laws are laws which impose and enhanced penalties upon acts already
EE

done i.e. retrospectively. This means that person can only be convicted of an offence if the act
AM

was charged against him was an offence under the law in force at the date of commission of the
act. However it does not prohibit the imposition of civil liabilities retrospectively. So a tax can
-

be imposed with effect from a past date. This first part of art.20(1) simply means that if an act is
AL

not an offence at the date of its commission, it cannot be made an offence at any date subsequent

13
 to its commission. The second part of the clause provided that a person cannot be subjected to a

)
penalty greater than that which might have been inflicted under the law in force at the time of the

in
commission of the offence.

w.
In Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it will be noted, extends

nla
not only to the passing of ex-post-facto laws but also the conviction or the sentence under such
laws. It was held that penalty means penalty for the offence committed. In Venkataraman v.

ee
Union of India.1954: -such a trial under a procedure different from what obtained at the time of

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the offence or by a court different from that which had the competence at the time cannot ipso

.al
facto be held to be unconstitutional. Protection of cause(1) or article 20 cannot be claimed in
cases of preventive detention.

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(b) Right to Privacy

(w
The right to privacy is a fundamental right under Article21. The right to privacy or the right

RE
to let alone is guaranteed under Article 21. A citizen has a right to safeguard the privacy of

LO
his own, his family, marriage, procreation, motherhood, child-bearing and education among
other matters. No one can publish anything concerning the above matters without his consent
GA
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be
violating the right of the person concerned and would be liable in an action for damages.
AN

This is subject to exceptions that,

,B

1. if any publication of such matters are based on public record including court record it
will be unobjectionable. If a matter becomes a matter of public record the right to privacy
W

no longer exists and it becomes a legitimate subject for comment by press and media
LA

among others.
2. the right to privacy or the remedy action for damages is simply not available to public
OF

officials as long as the criticism concerns the discharge of their public duties.

Auto Shankar Case: the Supreme Court has expressly held that ‘right to privacy” is
E

guaranteed by Art.21 of the Constitution.

EG

In State of Maharashtra v/s Madhukar Narain.: it has been held that although the “right to
LL

privacy” is available even to a women of easy virtue and no one can invade her privacy.
CO

Mr. ‘X’ v/s Hospital ‘Z’: the Supreme Court has held that although the “right to ptivacy”
is a fundamental right under Art.21 of the constitution but it is not an absolute right and
N

restrictions can be imposed on it for the prevention of crime, disorder or protection of

EE

health or morals or protection of rights and freedom of others.

AM

Q.N:.5 Answer any One of the following Problems with Reasons 10 Marks
-

(a) The State Government issued an order under Art.15(4) of the Constitution reserving
AL

68% of seats to backward and more backward classes and 32% seats made available to the

14
 merit pool in the Medical and Engineering Colleges. The validity of the order was

)
challenged by a student who had secured more marks than those admitted under the order.

in
Decide.

w.
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The order passed by the State Government under Article 15(4) of the Constitution reserving
68% of seats to backward and more backward classes and 32% seats made available to the merit

ee
pool in the Medical and Engineering Colleges is invalid on the basis of following constitutional

am
provisions: A

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Article 15 of the constitution states that no person shall be discriminated on the basis of

ww
religion, race, caste, sex or place of birth. Special provisions may be made for the advancements
of any socially or educationally backward class or scheduled castes or scheduled tribes. Clause 4

(w
of Article 15 contains an exception to the general provisions of non- discrimination. It empowers
the State to make special provisions for the advancement of socially, educationally and

RE
economically backward classes of citizens or for SC’s and ST’s. The state is prohibited to
discriminate between citizens on grounds only of religion, race, caste, sex, and place of birth or

LO
any of them.
GA
Further Article 15(4) is another exception to clauses (1) and (2) of Article 15, it was added by
the Constitution (1st Amendment) Act, 1951, as a result of the decision in Sate of Madras V/S
AN

Champakam Dorairajan. In that case the Madras Government had reserved seats in Sate
Medical and Engineering Colleges for different Communities in certain proportions on the basis
,B

of religion, race and caste. The state defended the law on the ground that it was enacted with a
W

view to promote the social justice for all sections of the people. But the Supreme Court held the
view that the laws is said to be void because it classified students on the basis of caste and
LA

religion.
OF

In Balaji vs. State of Mysore: the Mysore Government issued an order under Article 15(4)
reserving the seats in medical and engineering colleges in the State as follows: Backward Classes
E

28%, more backward Classes 20%, Sc & ST 18%. Thus 66% of the seats available in the
EG

colleges were reserved and only 34% was made available to the merit pool. The validity of the
order was challenged by the candidates who had secured more marks than those admitted under
LL

the order. Though qualified on merit they had failed to get admission only be reason of the
CO

Government order.

The court held that the sub-classification made by the order between “backward classes” and
N

“more backward classes” was not justified under Article 15(4).backwardness as envisaged under
EE

Article 15(4) must be both social and educational and not either social or educational. Though
caste may be a relevant facto but it cannot be the sole test of ascertaining whether a particular
AM

class is a backward class or not. Poverty, occupation, place of habitation may all be relevant
factors to be taken into consideration.
-
AL

15
 From the above it is very much clear that any type of orders passed by the State Government

)
which are discriminatory in nature such orders are said to be considered as a unconstitutional.

in
w.
(b) The State Government detained large number of persons under Narcotic Drugs Act for

nla
a long period without trial. The ‘Under trial Prisoners’ questioned the validity on the
ground of violation of Article 21 of the Constitution. Decide.

ee
am
Under Article 21 of the Constitution speedy trial is the essence of criminal justice. The
right to speedy trial is a fundamental right which is implicit in the Constitution guarantee of life

.al
and personal liberty enshrined in article 21 of the Constitution

ww
In Hussainara Khatoon v/s Home Secretary, State of Bihar: A petition for a writ of habeas
corpus was filed by number of under trial prisoners who were in jail in the State of Bihar for

(w
years awaiting their trial. The Supreme Court held that “right to speedy trial” a fundamental right

RE
is implicit in the guarantee of life and personal liberty given Article 21 of the Constitution.
Speedy trial is the essence of criminal justice. The right to speedy trial flowing from Article21 is

LO
available to accused at all stages namely in the stage of investigation, inquiry trial, appeal,
revision and retrial.
GA
The right to speedy trial flowing from Article 21 is available to accused at all stages
AN

namely the stages of investigation, inquiry, trial, appeal, revision and retrial. The detention of
under trial prisoners in jail custody to an indefinite period violates Article 21. Every person
,B

detained or arrested is entitled to speedy trial. it looks that the appellants have to remain in jail
longer than the period of detention, if they are convicted. The undertrials are presumably
W

innocent until convicted and if they are kept with criminals in jail it violates the Article 21 of the
LA

constitution.
OF

Thus from the above it is very much clear that the undertrial prisoners are entitled to
speedy trial in all the stages under article 21 of the Constitution.
E

PART-II
EG

Q.No.6. Explain the Composition and Functions of Parliament with references to the
LL

procedure for making an Ordinary Bill. 16 Marks

CO

Synopsis:
Introduction
N

Composition of Parliament
EE

Functions of Parliament with Reference to Procedures for making Ordinary Bill.

Conclusion
AM

Introduction
India has a parliamentary form of government in which the Prime Minister and his
-
AL

Council of Ministers are collectively responsible to the lower House of the Parliament i.e. Lok

16
 Sabha. In a parliamentary form of government the Parliament is the most important organ. It is

)
the people who elect their representatives to be members of the Parliament and these

in
representatives legislate and control the executive on behalf of the people. The Prime Minister

w.
and his Council of Ministers remain at the helm of affairs so long as they enjoy the confidence of

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Lok Sabha. The Parliament (Lok Sabha) may dislodge them from power by expressing a no
confidence against the Prime Minister and his Council of Ministers. Thus the Parliament

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occupies a central position in our parliamentary system.

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Composition of Parliament:
Article 79 declares: “There shall be a Parliament for the union which shall consist of the

ww
President and two Houses known as the Council of States and the House of the People”. It has to
be noted that the Council of States is also referred to as “Rajya Sabha” or the Upper House” or

(w
“House of Elders”. And, the House of People is referred to as Lok Sabha” or the “Lower House”.

RE
[ Henceforth, the two Houses of Parliament will be referred to as Rajya Sabha and Lok Sabha.]
While Rajya Sabha represents the States, Lok Sabha represents the People the foregoing

LO
establish that the Indian Parliament is Bicameral. The President is an integral part of the
Parliament though he is not a member of the either House. As an integral part of the Parliament,
GA
the President has been assigned certain powers and functions.
AN

Functions of Parliament with Reference to Procedures for making Ordinary Bill.

The Parliament has extensive powers and performs a number of functions. The primary
,B

function of a parliament is law making or legislative work. Modern society is so complex that
W

the laws govern it have necessarily to be complex. While making law Parliament has to look to
the future. As a result of this law making has become a complex or difficult process. The
LA

legislative procedure is initiated in the form of a Bill. A Bill contains the Draft provisions of the
Law being proposed. It originates in the Ministry concerned. It goes over to the Law Ministry for
OF

its legal opinion in respect of the Draft Provisions. Then the cabinet has to consider it. In the
light of consultations with the Law Ministry, discussions and deliberations over the Provisions in
E
EG

the Bill, deletions, alterations, and amendments may be effected. Finally, the Law Ministry,
drafts the provisions and the Bill will be introduced in either House. In respect of ordinary
LL

legislation, the two Houses enjoy coordinate jurisdiction. However, a Financial Bill or a Money
Bill can be introduced only in the Lok Sabha. As pointed out earlier basically the Parliament is a
CO

law making body. Any proposed law is introduced in the Parliament as a bill. After being passed
by the Parliament and getting the President’s assent it becomes a law
N

There are two kinds of bills, which come up before the Parliament:-(i) ordinary bill and (ii)
EE

money bill. Here we shall discuss the legislative procedures of ordinary bill.

Ordinary Bills
AM

An Ordinary bill, i.e., Bill other than Money Bill and Financial Bill may originate in
-

either house of the Parliament. The Bill must be passed by the both the Houses of Parliament
AL

then only it can be sent for President’s assent. It becomes a law when it is assented by the

17
 President. Every member of the Parliament has a right to introduce an ordinary bill and from this

)
point of view, we have two types of bills – government bills and private member’s bills. A

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Minister moves a government bill and any bill not moved by a Minister is a Private Member’s

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Bill, which means that the bill has been moved by a member of parliament but not a minister in

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the Government. The Government bills consume most of the time of the Parliament. The Bills
pass through several stages. : -

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(A) First Reading: With the introduction of the bill, the First Reading of the bill starts. This stage

am
is simple. The Minister wanting to introduce a bill, informs the presiding officer. He/she puts the

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question of introduction to the House. When approved, normally by voice vote, the Minister is
called upon to introduce the bill. At this stage no discussion takes place.

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(B) Second Reading: -This stage is the most vital stage. After general discussion the House has
four options: - (i) it may straightaway take the bill into detailed (clause by- clause) consideration

(w
or (ii) refer it to a select committee of the House or, (iii) refers it to the Joint Committee of both

RE
the Houses or (iv) circulate it among the people to elicit public opinion. If the bill is referred to a
select committee of the House or the joint select committee of both the Houses, the concerned

LO
committee examines the bill very minutely. Each and every clause is examined. The committee
may also take the opinion of professionals and legal experts. After due deliberations, the
GA
committee submits its report to the House.
(C) Third Reading: - After the completion of the second reading, the Minister may move that the
AN

bill be passed. At this stage normally no discussion takes place. The members may oppose or
support the adoption of the bill, by a simple majority of members present and voting.
,B
W

• Bill in the other House: -After the bill has been passed by one House, it goes to the
LA

other House. Here also the same procedure of three readings is followed. The following
consequences may follow: -
(A) It may pass it; then the bill is sent to the President for his assent.
OF

(B) It may pass the bill with amendments. The bill will be sent back to the first House. In
such a case, the first House will consider the amendments and if it accepts the
E
EG

amendments then the bill will be sent to President for his assent. In case the first House
refuses to accept the amendments, then it means there is a deadlock.
LL

(C) It may reject it. It means there is a deadlock. In order to remove the deadlock between
the two Houses, the President may call for a joint sitting of the two Houses. Such joint
CO

sittings are very rare in India and till now only three times such meetings have taken
place. They were convened on the occasion of passage of Dowry Prohibition Bill 1959,
N

Banking Service Commission (Repeal) Bill, 1978, and Prevention of Terrorism Bill,
EE

2002.
(D) President’s assent to the Bill:- After being passed by both the Houses or the Joint
AM

Sitting of both Houses, the bill is referred to the President for his assent. The President
also has some options in this regard: - (i) He may give his assent and with his assent, the
-
AL

bill becomes a law. (ii) He may withhold his assent, but may suggest some changes. In

18
 such a case the bill is sent back to the House from where it had originated. But if both the

)
Houses pass the bill again with or without accepting the recommendations Structure of

in
Government of the President, the President has no option but to give his assent. (iii) In

w.
1986, the President Giani Zail Singh invented a new option. He neither gave his assent

nla
nor he returned it to the Parliament for reconsideration of the Postal Bill. He sought some
clarifications, which were never provided. The bill thus, lapsed.

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am
Q.No.7. Examine the provisions relating to appointment and transfer of Judges from one

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High Court to another in the light of decided cases. 16 Marks

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Synopsis:

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Introduction

RE
Appointment of Judges
Transfer of Judges from One High Court to another Court

LO
Introduction:
GA
India has the oldest judiciary in the world. No other judicial system has a more ancient or
exalted pedigree. Barring the Supreme Court, India has no federal judiciary like the United
AN

States. Each State has its own judiciary, which administers both Union and State laws. As
during the Maurya Empire, each district in the State has its hierarchy of judicial officers- Munsif,
,B

Civil Judge, Civil and Sessions Judge- with the District Judge as its head.
W

The judiciary in states consists of a High Court and a system of courts subordinate to the
High Court. Article 214 says that there shall be a High Court in each State. However, under Art.
LA

231 (1) Parliament can establish by law a common High Court for two or more States or for two
or more states and a Union Territory. The High Court stands at the head of the Judiciary in the
OF

state.
Every High Court consists of a Chief Justice and such other Judges as a President may,
E

from time to time, deem it necessary to appoint (Art. 216). Thus the Constitution does not fix any
EG

maximum number of Judges of a High Court.

LL

Appointment of Judges:
CO

Article 217 provides that every Judge of a High Court shall be appointed by the
President. The President appoints the Chief Justice of a High Court after consultation with the
N

Chief Justice of India and the Governor of the State concerned. In case of appointment of a judge
EE

other than the Chief Justice he may consult even the Chief Justice of the High Court concerned.
In S. P. Gupta & Others V. Union of India, popularly known as the Judges Transfer
AM

case the question was whether in appointing the additional Judges of the High Court’s the
President was bound by the advice of the Chief Justice of India. Under Article 217 the President
-
AL

is obliged to consult the three functionaries, the Chief Justice of India, the Chief Justice of High
Court and the Governor of the State. In the present case, the President had relied on the advice of
19
 the Chief Justice of the Delhi High Court in non-extending the term of the additional Judge Mr.

)
Kumar of the Delhi High Court. The Court by 4:3 majorities held that non-extension of the term

in
of Sri. Kumar as additional Judge of the Delhi High Court was valid. The Central Government

w.
had taken decision not to give an extension to Sri Kumar on the basis of the charges of bribery

nla
leveled against him by Chief Justice of the Delhi High Court. The Chief Justice of India had,
however, recommended the extension of Mr. Kumar on the basis that no materials had been

ee
shown to support the charge of bribery.

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In a historic judgment, S.C. Advocate-On-Record v. Union of India a nine judge

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Bench of the Supreme Court by a 7:2 majority overruled the Judges Transfer case and held that
in matter of appointment and transfer of Judges greatest significance should be attached to the

ww
view of the Chief Justice of India. The majority gave primacy to the opinion of the Chief justice
of India formed in consultation with two senior most judges of the Supreme Court in regard to

(w
appointment and their transfers. The Court held that the process of appointment must be initiated

RE
by the Chief justice of the High Court.
In the event of conflicting opinion by the constitutional functionaries, the opinion of the

LO
judiciary symbolized by the view of the Chief justice of India, formed after consulting some of
his colleagues has primacy. No appointment of a judge of the High Court can be made unless it
GA
is in conformity with the opinion of the Chief Justice of India.
AN

Transfer of a Judge from One High Court to Another:

Article 222(1) empowers the President after consultation with the Chief Justice of India
,B

to transfer a Judge from one High Court to any other High Court. Clause (2) makes provisions
W

for the grant of compensatory allowance to a Judge who goes on transfer to another High Court.
In Union of India Vs. Sankalchand Seth of the High Court of the Gujarat High Court
LA

was transferred to the High Court of Andra Pradesh, was challenged on the ground that the order
was passed without the consent of the Judge and against public interest and without effective
OF

consultation of the Chief Justice of India. The Supreme Court held that a Judge of a High Court
could be transferred under Article 222 (1) without his consent
E
EG

The power to transfer the judges from one High Court to another is conferred by the
Constitution in public interest and not for the purpose of providing the Executive with a weapon
LL

to punish a Judge who does not touch its line or who, for some reason or the other, has fallen
from its grace. Article 222(1) casts an absolute obligation on the President to consult the Chief
CO

Justice of India before transferring a Judge from one High Court to another. That is the condition
precedent to the actual transfer of the Judge. The consultation with the Chief Justice of India
N

must make the relevant data available to him on the basis of which he can offer to the President,
EE

the benefit of his considered opinion.

Transfers cannot be done by way of ‘punishment’. Accordingly, the Court held that the
AM

transfer of the Chief Justice of Patna High Court to the Madras High Court was in Public Interest
because certain persons were taking undue-advantage of their close relationship with him which
-
AL

had created considerable misunderstanding and dissatisfaction in the working of the High Court.

20
 Q.No.8. What is an Amendment? State the types and procedure for amending the

)
Constitution of India under Art.368. 16 Marks

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Synopsis:

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Introduction

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Necessity of Amending Provisions in the Constitution

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Types of Amendment:
Procedures for Amending the Constitution

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Introduction

A constitutional amendment refers to the modification of the Constitution of a nation. In

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many jurisdictions the text of the constitution itself is altered; in others the text is not changed,

RE
but the amendments change its effect. The procedures of amendment in the Indian Constitution is
laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the

LO
sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of
India. However, there is another limitation imposed on the amending power of the constitution of
GA
India. There has been a conflict between the Supreme Court and Parliament, where Parliament
wants to exercise discretionary use of power to amend the constitution while the Supreme Court
AN

wants to restrict that power. This has led to the laying down of various doctrines or rules in
regard to checking the validity/legality of an amendment, the most famous among them is
,B

the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda
W

Bharati v. State of Kerala

LA

Necessity of Amending Provisions in the Constitution

OF

Provisions for amendment of the Constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the Constitution. If no provisions
were made for the amendment of the Constitution, the people would have recourse to extra
E
EG

Constitutional method like revolution to change the Constitution. A federal Constitution is

generally rigid in character as the procedure of amendment is very difficult. So is the case with
LL

Australia, Canada and Switzerland. It is a common criticism of federal Constitution that is too
conservative, too difficult to alter and that it is consequently behind the times. The framers of the
CO

India Constitution were keen to avoid excessive rigidity. they were anxious to have a document
which could grow with a growing nation, adapt itself to the changing need and circumstances of
N

a growing people. But the framers of the India Constitution were also aware of the fact that if
EE

the Constitution was so flexible it would be a playing of the whims and caprices of the ruling
party. They were, therefore, anxious to avoid flexibility of the extreme type. Hence, they
AM

adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for
undesirable changes. The machinery of amendment should be like a safety valve, so devised as
-
AL

neither to operate the machine with too great facility nor to require, in order to set in motion, an

21
 accumulation of force sufficient to explode it. The Constitution- makers have, therefore, kept the

)
balance between the danger of having non- amendable Constitution and a Constitution which is

in
too easily amendable.

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Types of Amendment:

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For the purpose of amendment the various Articles of the Constitution are divided into three

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categories:-

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1. Amendment by Simple Majority:-

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Articles that can be amended by parliament by Simple majority as that required for
passing of any ordinary law. The amendments contemplated in Arts-5, 169 and 239-A, can

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be made by simple majority. These Articles are specifically excluded from the purview of the
procedure prescribed in Article 368.

RE
2. Amendment by Special Majority:-

LO
Articles of the Constitution which can be amended by special majority as laid down in
GA
Article 368. All constitutional amendments, other than those referred to above, come within this
category and must be effected by a majority of the total membership of each House of Parliament
AN

as well as by a majority of not less than 2/3rd of the members of that House present and voting.
,B

3. by Special Majority and Ratification by States:-

W

Articles which require, in addition to the special majority mentioned above, ratification by
LA

not less than ½ [one-half] of the State Legislatures. The States are given an important power
under the Constitution and any unilateral amendment by Parliament may vitally affect the
fundamental basis of the system built up by the Constitution. This class of Articles consist of
OF

amendments which seek to make any change in the provisions mentioned in Article 368. The
following provisions require such ratification by the States:-
E
EG

1. Election of the President- Articles54 and 55

2. Extent of the Executive powers of the Union and States:- Articles 73 and 162.
LL

3. Articles dealing with Judiciary, Supreme Court, High Court in the States and Union
CO

territories- Arts- 124 to 147, 214to 231, 241.

4. Distribution of Legislative powers between the Centre and the State- Articles 245 to 255
N

5. Any of the Lists of the VII schedule.

EE

6. Representation of States in parliament - IV schedule.

7. Article 368 itself.
AM

Procedures for amending the constitution

-

The procedure of amendment makes the Constitution of India neither totally rigid nor totally
AL

flexible, rather a curious mixture of both. Some provisions can be easily changed and for some

22
 others, special procedures are to be followed. Despite the fact that India is a federal state, the

)
proposal for amending the constitution can be initiated only in the House of the Union

in
Legislature and the State Legislatures have no such power. In case of ordinary legislation, if both

w.
houses of the Parliament disagree, a joint session is convened. But in case of amendment of bills,

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unless both the houses agree, it cannot materialize, as in such cases there is no provision for
convening the joint session of both the Houses of the Parliament. In fact, there are three methods

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of amending the Constitution. But Article 368 of the constitution which lays down the procedure

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for amendment mentions two methods.

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1) An amendment of the constitution may be initiated only by the introduction of a Bill for the

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purpose in either house of Parliament and when a bill is passed in each house.

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i) by a majority of total membership of that house.

RE
ii) by a majority of not less than two-thirds of the members of that house present and voting,
it shall be presented to the President who shall give his assent to the Bill and there upon the

LO
Constitution shall stand amended in accordance with the term of the Bill. Most of the
provisions of the constitution can be amended by this procedure.
GA
2) For amending certain provisions a special procedure to be followed,
AN

(i) a Bill for the purpose must be passed in each house of Parliament by a majority of total
membership of the house,
,B
W

(ii) by a majority of not less than two-thirds of the members of that house present and voting
and
LA

(iii) it should be notified by the legislatures of not less than one-half of the states before the
OF

Bill is presented to the President for assent.

The provisions requiring this special procedure to be followed include- (a) manner of the
E
EG

election of the President, (b) matters relating to the executive power of the union and of the state,
(c) representation of the states in Parliament (d) matters relating to the Union Judiciary and High
LL

Courts in the states (e) distribution of legislative powers between the union and the states (f) any
of the list in the seventh schedule (g) provisions of Article 368 relating to the procedure for
CO

amendment of the constitution etc.

N

3) There are certain provisions which require simple majority for amendments. They can be
EE

amended by the ordinary law making process. They include

AM

(a) formation of new states and alteration of areas, boundaries or names of existing ones

(b) creation or abolition of Legislative Councils in the states

-
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(c) administration and control of scheduled areas and scheduled Tribes

23
 (d) the salaries and allowances of the Supreme Court and High Court Judges

in )
(e) laws regarding citizenship etc.

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It is significant that the laws passed by Parliament to change the above provisions would

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not be deemed to be amendments of the Constitution for the purpose of Article 368.

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Q.No.9. Write Short Note on any One of the following. 08 Marks

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(a) Doctrine of ‘Pith and Substance’

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Pith means "true nature" or "essence" and substance means the essential nature

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underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true

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nature of a statute. This doctrine is widely used when deciding whether a state is within its rights
to create a statute that involves a subject mentioned in Union List of the Constitution. The basic

RE
idea behind this principle is that an act or a provision created by the State is valid if the true
nature of the act or the provision is about a subject that falls in the State list.

LO
The case of State of Maharashtra v/s F N Balsara AIR 1951 illustrates this principle very
GA
nicely. In this case, the State of Maharashtra passed Bombay Prohibition Act that prohibited the
sale and storage of liquor. This affected the business of the appellant who used to import liquor.
AN

He challenged the act on the ground that import and export are the subjects that belong in Union
list and state is incapable of making any laws regarding it. SC rejected this argument and held
,B

that the true nature of the act is prohibition of alcohol in the state and this subject belongs to the
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State list.
LA

The court looks at the true character and nature of the act having regard to the purpose,
scope, objective, and the effects of its provisions. Therefore, the fact that the act superficially
OF

touches on import of alcohol does not make it invalid. Thus, as held in State of W Bengal vs
Kesoram Industries, 2004, the courts have to ignore the name given to the act by the legislature
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and must also disregard the incidental and superficial encroachments of the act and has to see
EG

where the impact of the legislation falls. It must then decide the constitutionality of the act.
LL

b) Writ of Mandamus.
CO

The term “Mandamus” in Latin means “We command”. This writ is issued to a public
official who refrains from performing his public duties which he is obliged to do. This writ can
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also be issued to any public authority (including the government, corporation and Court)
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commits an act which is detrimental to the welfare of the general public. This writ however
cannot be issued against the President and the Governor.
AM

Mandamus was introduced in India by the Letters Patent creating the Supreme Court in
-

Calcutta in 1773. The Supreme Courts in the Presidency towns were empowered to issue the
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writ. In 1877, the Specific Relief Act substituted an order in the nature of mandamus in the place
24
 of the writ of mandamus for the purpose of "requiring any specific act to be done or forborne

in )
within the local limits of its ordinary civil jurisdiction by any person holding a public office. The

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Constitution empowered all High Courts to issue directions, orders or writs including writs in the

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nature of mandamus for the enforcement of any of the rights conferred by Part III and for any

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other purpose.7 The Supreme Court can also issue mandamus for the enforcement of fundamental

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rights.

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Mandamus lies against authorities whose duty is to perform certain acts and they have

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failed to do so. Under following circumstances mandamus can be issued :

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(i) The applicant must have a legal right to the performance of a legal duty. It will not

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issue where to do or not to do an act is left to the discretion of the authority. It was
refused where the legal duty arose from an agreement which was in dispute. The duty to

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be enforced by a writ mandamus could arise by a provision of the Constitution or of a
statute or of the common law.
GA
AN

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V.
Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529:
,B

(1957) S.C.R. 738 the Supreme Court stated that mandamus might under certain
W

circumstances lie against a private individual if it is established that he has colluded with
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a public authority.
OF

It will not issue against a private individual to enforce a private right such as a contract.
E

Even though mandamus does not lie to enforce a contract inter partes, it will lie where the
EG

petitioner's contractual right with a third party is interfered with by the State. Mandamus
LL

will not issue to enforce departmental manuals or instructions not having any statutory
force which do not give rise to any legal right in favour of the petitioner as in the cases of
CO

Raman & Ramanv. State of Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar,
N

A.l.R. 1965 S.C. 1196.

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However if the authority were under law obliged to exercise discretion,

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mandamus would lie to exercise it in one way or the other. Mandamus can be issued to
-

compel an income-tax officer to carry out the instructions issued by income-tax appellate
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25
 tribunal exercising its appellate power. Again it can be issued to a municipality to

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discharge its statutory duty.

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There are however exceptions to this rule. Where there is no statutory provision,

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executive instructions fill in the gap and are capable of conferring rights on the citizen

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imposing obligations on the authorities. In appropriate cases the courts may even compel

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the performance of such a duty. Mandamus is not available where the order upon which

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the alleged right of the petitioner is founded is itself ultra vires. Similarly it was held

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that the grant of dearness allowance at a particular rate is a matter of grace and not a
matter of right and hence mandamus cannot issue to compel the Government to pay

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dearness allowance at a particular rate. Article 320 (3) of the Constitution which provides

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that before a government servant is dismissed, the Union Public Service Commission

LO
should be consulted, does not confer any right on a public servant and hence failure to
consult the Public Service Commission does not entitle the public servant to get
GA
mandamus for compelling the government to consult the Commission. Where provisions
AN

are merely directory, non-compliance with them does not render an act invalid and hence
,B

no mandamus issues.
W

(iii) The right sought to be enforced must be subsisting on the date of the petition. If the
LA

interest of the petitioner has been lawfully terminated before that date, he is not entitled
to the writ25.
OF

(iv) As a general rule, mandamus is not issued in anticipation of injury. There are
E

exceptions to this rule. Anybody who is likely to be affected by the order of a public
EG

officer is entitled to bring an application for mandamus if the officer acts in contravention
LL

of his statutory duty. Thus an intending bidder at an auction is entitled to apply if the
CO

authority holding the auction acts contrary to the statute under which the auction is held
or fails to perform his statutory duties in connection with the auction. A person against
N

whom an illegal or unconstitutional order is made is entitled to apply to the court for
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redress even before such order is actually enforced against him or even before something
AM

to his detriment is done in pursuance of the order. For, the issue of such order constitutes
-

an immediate encroachment on his rights and he can refuse to comply with it only at his
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peril.

26
 Q.No. 10. Answer any one of the following Problems with Reasons. 10 Marks

in )
(a) ‘Mr. Mohan’ a Central Government employee was removed from the service without

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conducting an enquiry. He was removed from the service on the ground that he used some

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criminal force against his superior authority. Is removal valid?

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Yes, the removal of Mr. Mohan is valid.

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In India, the civil servants can bring an action against the State under certain circumstances.

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Article 311 provides the following safeguards to civil servants against any arbitrary dismissal
from their posts:

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1. No person holding a civil post under the Union or the States shall be dismissed or removed

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by authority subordinate to that by which he was appointed

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2. No such person shall be “dismissed”, “removed” or “reduced” in rank except after an
inquiry in which he has been informed of the charges against him and given a reasonable

LO
opportunity of being heard in respect of those charges.
GA
Article 311(2) lays down that a civil servant cannot be dismissed or removed or reduced
in rank unless he has been given a reasonable opportunity to show cause against the action
AN

proposed to be taken against him. Originally, the opportunity to defend was given to a civil
servant at two stages:
,B

i) At the enquiry stage and this is in accord with the rule of natural justice that no man
W

should be condemned without hearing. And

LA

ii) At the punishment stage, when as a result of enquiry the charges have been proved and
any of the three punishments, i. e. dismissal, removal or reduction in rank were proposed
OF

to be taken against him.

E

Exception to Article 311 (2)

EG

Article 311(2) Provides that reasonable opportunity of being heard is not applicable in the
LL

following cases.
CO

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge; or
N
EE

(b) Where the authority empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason, to be recorded by that authority in writing, it is not
AM

reasonably practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the
-
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interest of the security of the State, it is not expedient to hold such inquiry

27
 In Union of India v Tulshiram Patel the Court held that the dismissal, removal or

)
reduction in rank of a person convicted on criminal charges is in public interest, and therefore

in
not violative of Art. 311(2) of the Constitution. In this case the Respondent, Tulsiram Patel, was

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convicted under section 332, I.P.C. for causing head injury with iron rod to his superior. Hence,

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the respondents were dismissed from service without holding inquiry under clause (b) 0f second
proviso to Art. 311(2) of the Constitution.

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Similarly in the instant case also Mr. Mohan is held liable for using a criminal force
against his superior officer without inquiry. As per the provisions of Article 311(2) of the

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constitution every civil servant is entitled to protection against dismissal, removal and reduction

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in Rank. But under Article 311(2) (a) Mr. Mohan is exempted from the safeguard or the
protection because of using the criminal force against his superior officer. Hence, Mr. Mohan in

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sot entitled to protection under article 311 of the Constitution the same article gives certain
ground under which the person is not entitled to protection. Hence his removal is valid in the

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eyes of law.

LO
(b) A member of the Lok Sabha Challenges the legality of the proceedings in the Lok sabha
before the Supreme Court of India. What action can the Supreme Court take in this
GA
regard?
AN

According to the provisions of the Constitution Supreme Court do not have any power to
take actions against the proceedings of the Lok Sabha.
,B

Article 122 of the Constitution lays down that the validity of any proceedings in Parliament
W

cannot be called in question in any Court on the ground of any alleged irregularity of procedure. .
LA

no officer or member of Parliament who has authority to regulate the procedure or the conduct of
business or for maintaining order in the House is subject to the jurisdiction of any court in
OF

respect of the exercise by him of those powers. The courts cannot issue a writ against the
Speaker from presiding a meetings of the House or stop the passage of a Bill. The Courts cannot
E

go into the question as to the validity of the proceedings in the House of Parliament.
EG

From the above mentioned it is clear that the member who challenges the legality of the
LL

proceedings in the Lok Sabha before Supreme Court is not maintainable. The constitution under
article 122 restrains the Supreme court not to interfere with the proceedings of the Houses of
CO

Parliament. Hence the Supreme Court do not have the Power to take actions against the
proceedings of the Lok Sabha.
N
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AM

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