Atul Depak

Let’s talk about Qanoon (law), Huqooq (rights) & Insaaf (justice) for Empowerment & Falah (welfare)

Constitutional Law II Notes

Focus- Structures and organs of government
Broad Topics-Union and Judiciary
1. Historical background
2. Analysis of relationship between Union and State Judiciary
3. Concepts
4. Case-laws
5. Conclusion
Characteristics of Constitution
1. Supreme Law of the land
2. Defines structures of governance
3. Defines powers and liabilities of different organs of state-
Executive
Articles 52-78
Articles 123 and 213 (Ordinance making power)
Articles 153-167
Legislature
Articles 105 and 194 (Powers and Privileges)
Articles 79-122
Articles 168-212
Judiciary
Articles 124-213
Articles 214-237
Articles 32 and 216
We shall also deal with-
1. Parliamentary system
2. Cabinet
3. Collective responsibility
4. Rules of Business
5. Law making process
6. Fiscal relationships (GST)
7. Doctrine of pleasure (Articles 309-311)
8. Emergency Provisions
9. Amendment procedures
10. Difference between States and UTs (Earlier Part A, B and C states)
11. Scheduled and Tribal areas
12. Election
13. Panchayats and Municipalities
14. Language
15. State Liability (299-300)
16. Vicarious Liability
17. Contractual Liability
18. Tortuous Liability
19. Sovereign and Non-Sovereign functions
20. Committees and Commissions
Difference between Constitution and Constitutional Law
1. Constitution is the just the bare text.
2. Constitutional Law is the application of that text into law by making statutes in confirmation with the provisions of the constitution.
Constitutional Conventions-
Article 75- When elections are there, President has to call the party with largest number and appoint him the PM.
If no majority then single largest party.
President will take into account pre-poll and then post-poll alliance situations.
Pocket Veto– If President does not sign the bill and does not even return it.
Read Fali S Nariman article on Constitutional Conventions.
Other Constitutional adjectives
Constitutional morality enunciated in the cases of-
1. Navtej Johar case
2. Sabarimala Case
3. Tripple Talaq

Some other concepts-
Constitutional Democracy
Constitutional Validity
Constitutional Theocracy?
Constitutional Monarchy.
Article 14-Equality has been interpreted as-
1. Dignity
2. Opportunity
3. Rule of Law
4. Non-arbitrariness
5. Non-discrimination
Constitutionalism-
1. Idea that government should not have absolute powers but limited under the provisions of constitutions.
2. Separation of Power. (Montesquieu)
3. Distribution of Power (Eric Brandt)
4. Socialism- means of production and ownership should be controlled by the state. After liberalization, it has little meaning
5. Federalism
Difference between federation and confederation.
Indian federalism is amphibian (Justice Beg)
Quasi-Federal
Cooperative Federalism (Granville Austin)

Fundamental Rights summary (covered in previous semester)
FR- Part III
Enforceable under article 32 and 226.
Article 20
1. Ex-post facto law- That you cannot make an act an offense retrospectively. Cannot be punished more than the punishment prescribed in law.
2. Double Jeopardy
3. A person cannot be punished twice for the same offense.
4. Self-incrimination.

Case laws-
1. Nandini Satpathy v PL Dhani
2. Kathi Kalu Aughad v TN

Article 22
1. A person should be told the grounds of Arrest
2. Right to counsel
3. Must be produced before nearest magistrate within 24 hours of the arrest.
Exceptions-
1. Enemy Alien
2. Preventive detention
3. Not more than 3 months unless advised otherwise by the advisory board

Article 23
1. Prohibition of traffic in human beings and forced labor.
2. Begar- A person is forced to do something against wishes without being paid.
Exception
1. Public welfare (Jail etc)
2. Compulsory service for public purpose

Article 24
1. Prohibition of employment of children in factories.

PART I (Article 1-4)

PART V UNION
Articles 52-78
There shall be a President of India (A.52)
Confederation is voluntary and federation is involuntary.
EU, Switzerland are confederation.
Whether President is head of executive or head of union?
A.1 India that is Bharat.
Head of the Union.
A.53-Executive power of the Union to vest in President.
Power to be exercised directly or through officers subordinate to him.
Direct exercise– Appointments, Clemency, appointment of commissions
Indirectly. Exercise of power shall be regulated by law. To be read with A.74 and A.75
A.74– President to act in accordance in aid and advice of Council of Ministers.
Can ask to reconsider but only once.
A.75– PM to be appointed by Prez. And other ministers by Prez. On advice of PM. Total no. of ministers including PM to not exceed 15% of the total members of the house. The Ministers shall hold office during the pleasure of the President. (advice of PM) (Authority that appoints should have the power to remove) The Council of Ministers shall be collectively responsible to the House of the People. If one minister holds an opinion, all other have either to endorse it or keep silent.
President in India is not hereditary unlike Monarch but is elected.
He/she can be impeached on ground of violation of constitution. (S.61)
He/she can be criticized.

KM Munshi- Indian President has three powers.
1. Right to Advice
2. Right to Warn
3. Right to be consulted
Pocket Veto-when he holds the bill for indefinite time.
Prez. Gyani Zail Singh exercised Pocket Veto for the the Post-Office Bill which he thought was in violation of FR.

Difference between President and Governor
Election of President (A.54-55)
Electoral college of elected MPs and MLAs.
By 70th amendment Act 1992, elected MLAs of NCT Delhi and Pudduchery were made part of electorate. Nominated members cannot elect.
Indirect Election-Power equation; cost and time
1. Elected members of both houses of parliament
2. Elected members of state legislative assemblies and elected members of Delhi and Pondicherry (70AA 1992)
3. By proportional representation
4. By means of single transferable vote/uniformity and parity
5. By secret Ballot
6. Uniformity in the scale of representatives of different states and parity in states as a whole and Union.
Art.71-Doubts and disputes in respect of election of President to be inquired into and decided by SC of India

Presidential and Vice Presidential Elections Act 1952
50 electors as proposers and 50 electors as seconders along with 15000 as deposit

Cases Laws on Presidential Election
NB Khare v Election Commission 1957
Punjab and HP did not have state assemblies at the time of election of President. Petitioners claimed that we should wait till state assemblies are elected.
SC held that any kind of vacancy in state legislature should not affect election of President
71(4) was also added-The election of a person as President or Vice- President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.
Ram Nath v Election Commission 1957
Any dispute regarding election of president shall be decided by SC.
Terms of office-5 years (A.56)

Should there be re-election if president resigns or dies in mid-term?
Yes. New president has to be elected within 6 months.
What will happen if some state assemblies are vacant or have been dissolved.
Read 56 along with 62 and 71.
Re-election (A.57)
Qualifications A.58
1. Citizen
2. 35 Years
3. Qualified for election as a member of HoP/not if office of Profit.
4. Conditions of office A.59
Oaths A.60
Discharge of functions in contingencies. A.70
Removal by Impeachment A.61
1. For violation of constitution
2. Charge preferred by either HoP
3. Proposal of Charge-Charge-Resolution moved after 14 days notice in writing to either house
4. Signed by min 1/4th of total membership of the house
5. Other House to investigate and President right to appear and represented
6. If passed by min 2/3rd by the investigating House-charge sustained-sustained-resolution removing the president passed.
What if President does not step-down even after impeachment?
361 and 77
Filling of vacancy A.62
Pardoning Power A.72
Extent of executive power A.73

Executive Powers-
1. Co-extensive with legislative powers (77)
2. Residue of governmental functions except legislative and judicial functions
3. Determination of policy and its execution
4. Initiation of policy and its execution
5. Promotion of social and economic welfare
6. Direction of foreign policy
Carrying on supervision of general administration
Maintenance of order
Whole corpus of authority to govern-widening.
Ramjawaya Kapur v State of Punjab
Whatever is left after we deduct legislative and judicial power is executive power.
President only formal constitutional head. Real power vests in council of Ministers on whose advise President Acts.

UN Rao v Indira Gandhi
President not to exercise powers without the aid and advice of the council of ministers-mandatory functions.

Singh v State of Punjab 1974
Executive functions not personal; Personal or constitutional satisfaction of President-Satisfaction of council of ministers

Legislative Powers-
Component part of Union Executive
Nominates 12 persons (eminent in science, Art, Literature, Social Sciences) to Rajya Sabha (Art.80)
Nominates 2 Anglo-Indian community to Lok Sabha, if not adequately represented. (Art. 331)
Takes final decision reg. qualifications of members of either HoP.
Power to prorogue and summon sessions of Hop-Time and Place.

Other Powers-
1. President addresses the house after new government has taken over.
2. President addresses first session of Parliament each year.
3. Addresses the Joint-session of parliament. 108
4. When there is a deadlock in on house.
Article 87-88.
Money Bills 109- Prior recommendation of President
Finance Bill 117- Prior recommendation of President
Consolidated Fund 113
Prior recommendation to Bill-for formation/re-organisation of states (A.3)
Recommendation for imposing restrictions on Freedom of trade and commerce in State Legislatures 303.
President cannot refuse ascent the money bill.
UPSC Report to beauthenticated by president

Pardoning Power of President 72
Pardon– Completely absolves the guilt of the offender/punishment completely gone.
Reprieve– Temporary suspension of Punishment fixed by law
Respite– postponement to the future-the execution of sentence
Remission-reduction of punishment/amount of sentence w/o changing its character.
Commute-Exchange of one form of punishment of another rigorous Imprisonment/different sort of punishment.
Reasons
1. Crime is offense against State.
2. Popular government take political steps.
3. Humanitarian government.
4. Prevent Injustice.
5. Prisoner has reformed.
6. Mercy under changed circumstances.

When mercy petition can be filed?
Articles. 72 and 171

Cases Laws-

G Krishna Goud v State of AP 1976
2 Deaths due to terrorist activities.
President refused to pardon.
Judicial review of pardoning power only in exceptional cases. Grounds which are not irrational, unreasonable, discriminatory, mala-fide, etc.
Burden is on accused.
Oral/Personal hearing is not a matter of right.

Maru Ram v UOI 1980
Should basis of pardon be made public?
It would be better if such guidelines are there.
Obiter Dicta.

Kuljeet Singh v State of Bombay 1989
SC held that pardoning power is widest residuary power, it cannot be restricted by guidelines.

Kehar Singh v Bombay 1989
Again held that pardoning power is widest residuary power, it cannot be restricted by guidelines.
Main person responsible for assassination of Indira Gandhi.

Ashok Kumar v UOI 1991
Clubbed Maru Ram and Kehar Singh. That Maru Ram is obiter. If judicial review is to be done, it has to be on the merits of the cases. Grounds of pardon should not be irrational, unreasonable, discriminatory, arbitrary or mala-fide, etc.
Burden of proof on accused.

Epuru Sudhakar v AP 2008
That order of President should not be seen as non-application of mind. Retained all grounds mentioned in Ashok Kumar.

Devender Pal S. Bhullar v NCT Delhi 2013
DPSB was a Delhi bomb blast convict 1993. President did not do anything. Ultimately pardon was rejected in 2013. SC held that when pardon has been rejected, there cannot be any review. There can be no sympathy for a terrorist.

Shatrughan Chauhan v UOI 2014
Justice Sathasivam said, that 15 death-convicts were petitioning president who did not take any action. Court said that this is inordinate delay on part of executive. Cause mental agony to convicts. Death sentence was converted to life-sentence.

Devender Pal S. Bhullar v NCT Delhi 2013
After this case, wife of Bhullar filed curative petition after the case of Shatrughan Chauhan.
Justice Sathasivam gave relief.

Sawarn Singh v UOI
President rejected the pardon granted by Governor.
If the sessions court has convicted and the matter is pending in appeal. Will mercy petition be entertained by Governor?
Yes.

Basis of Mercy Petition-
1. Humanitarian
2. Circumstantial
3. Health
4. Good Conduct
5. Aggravating and mitigating

Jessica Lal case.
Can President annul pardon granted by Governor?
Yes.

ORDINANCE MAKING POWER (Art.123)
Promulgate ordinances
For short duration
To meet unforeseen/urgent situations
Parliament not in session
Satisfied regarding the circumstances/emergency
Objective and constitutional satisfaction.
S.123 and 213
It is nothing but a law.
Constitutional Satisfaction.
6 months+6 Weeks.

DC Wadhwa v State of Bihar 1982
1. 256 Ordinances promulgated by Bihar government
2. Court held it to be a fraud of constitution. Bypassing the democratic requirements. Colourable legislation.

Can the same ordinance be promulgated again without changes?
Yes.
It’s subject to Judicial Review.

Case Laws

SKG Sugar v State of Bihar 1974
RC Cooper v UOI 1970
Bank Nationalisation case. Ordinance passed in 1961
AK Roy v UOI 1981
T Venkata Reddy v State of AP 1985
DC Wadhwa v State of Bihar 1982

Constitutional State liability in Tort and Contract case.
S.299 (Contract) and 300 (Tort)
1. Vicarious Liability-Master is vicariously liable for wrongs committed by servant during the course of the employment.
2. My driver despite my warning drives negligently and causes an accident. 3. Victim filed a case against both driver and the master. Both will be jointly and severally liable. If 100000 damage is to be paid to plaintiff, master and driver will internally decide in what ratio they will bear the expense.
4. If the contract has been formulated according to 299, only then will there be state liability and no personal liability.

CK Achutan v Kerala 1959
1. There is no need to give choice to private person when they are signing the contract with the government.
2. Government is different from ordinary people
3. Gave literal interpretation to contractual liability. 3 requirements under 299 are to be fulfilled.
4. Contract making is not statutory function but executive power being discharged.

Erusian Equipments and Chemicals v WB 1975
Govt. is not free as private individuals are so some guidelines must be there

RD Shetty v International Airport Authority 1979
1. When u giving licences, it has to be done in accordance with Article 14.
2. Government must announce the standards for allocating licences.
3. Standards must be objective, reasonable and non-discriminatory.

Common Cause v UOI
1. Allocation of petrol pumps case.
2. No unfettered discretion to public officials.
3. Public Trust Doctrine-Government holds all public property as a trust.

FCI v Kamdhenu Cattle 1993
No unfettered discretion to public officials.

Tata Cellular v UOI 1996
1. Government contracts should be very transparent
2. Illegality and Irrationality should be absent.

State of Haryana v Lalchand 1984
Under Punjab Excise Act license was granted to a person for liquor sale. Later the license was revoked.
Its statutory contract under Punjab Excise Act.
Oral Agreements not covered under 299?

TORTOUS LIABILITY 300
Government Liability in Torts Bill 1967
Common law principles.
Sovereign Immunity-King can do no wrong.
Was never applied in India even in British times.

Peninsular and Oriental Steam Navigation Company v Secretary of State 1861
A EEIC horse carriage carrying iron lost control and injured a passerby.
It was held to be a non-sovereign function and liability was imposed.

State of Rajasthan Vs. Vidyawati, AIR 1962

In this case the driver of a Government jeep, which was being used by the Collector of Udaipur, knocked down a person walking on the footpath by the side of a public road. The injured person died three days later, in the hospital. It was found by the court, as a fact, that the driver was rash and negligent in driving the jeep and that the accident was the result of such driving on his part.

Kasturi Lal Ralia Ram Jain v UOI 1965
A police constable ran away with the gold confiscated from a person to Pakistan and never came back. Damages were not allowed by court on two basis- 1. The act was done in the purported exercise of a statutory power. 2. The act was done in the exercise of a sovereign function.

Rudal Shah v State of Bihar 1983
Court ordered release of a prisoner but Jail authorities did not release him for a long time.

Chairman Railway Board v Chandrima Das
1. A Bangladeshi Women was raped in Train and Kolkata Lawyer filed a writ petition.
2. Article 21 was made available to Non-Indians as well.
3. India is a signatory to UDHR

Nilabati Bahera v State of Orissa 1992
A son of petitioner died in suspicious circumstances in Jail. Damages were allowed.

N Nagendra Rao v State of AP 1994
Revenue Officers confiscated food grains of the appellant under a statute but when unable to return all of that when the case was decided in his favour. They did not store it properly and it perished.
Maintenance of law and order is a sovereign function.
Sovereign function should inalienable.
Injuria sine Damnum– Legal Injury without damage
Damnum sine Injuria– Damage without Legal Injury
Process-
1. Prove violation of Legal Right
2. Then prove Injury
3. Then prove it was a non-Sovereign Function

Govt (Liability in Torts) Bill 1967 was introduced but could not be passed.
Armed forces cannot claim sovereign immunity in peace times.

How to convert legal right into FR?
1. By proving violation of FR
2. If able to prove violation of FR, then remedy of writ petition 32/226
3. You don’t need to prove sovereign and non-sovereign function.
4. Article 14 violated in case of contractual violation by State

Parliament=Prez+2 houses
Article 361- 2 members from Anglo-Indian community

Why Rajya-Sabha?
1. Stablising
2. Checks and balances
Articles 82 and 83-Membership of RS
Schedule 4- Rajya Sabha Members
S.3 and S.4 of RoP Act

Kuldeep Nair v UOI 2006
Nomenclature of council of states represent federal character of house.

Article 84-Qualification for members of RS
Read with S.3 pf RoP Act
RoP is importnat
Conditions for Memberships
1. Sound Mind
2. Not insolvent
3. Citizen of India
4. No office of Profit

OFFICE OF PROFIT AND DISQUALIFICATION
Art. 102(1)
1. Holds any office of Profit
2. Unsound Mind
3. Undischarged Insolvent
4. Not citizen of India
5. Disqualified by or u/any law made by Parliament
RP Act 1951
Article 102(2): Disqualified u/10th schedule (52AA 1985)
Article 103: President decides and acts according to opinion obtained from EC (Quasi-Judicial Body to investigate into allegations levied)
Only when the questioned is referred to President
Question arises as to whether a member has become subject to any of the disqualifications mentioned u/a 102
Office of Profit
1. Office– Should be permanent and substantial, exists independent of its holder.
2.Of Profit-Office capable of yielding some profit (does not matter whether actually received that profit or not)
Under Central or State Government-appointing and removing authority; payment; functions; control;
Statutory bodies not directly u/govt-Not OOP
Conflicts with duty of an elected legislator OoP
Reasons
1. Bias
2. Prejudice
3. Ingredients
Central/State government appointee
Whether Lawyer representing state can be said to be holding the office of profit?
No. Not taking salary on a regular basis

Jaya Bachhan v UOI 2006
She held office of the chairman of development council under central government but took no salary/perks. And was also the member of the RS
So there was office of central government but not receiving any salary.
Nonetheless it was held to be office of profit.

Shibu Soren v Dayanand Sahai
Chairman of Jharkhand Area Autonomous Council
Was receiving honorarium of 1000/- and other perks.
Contended that honorarium does not amount to salary
SC refused the contention.

ECI v Saka Venkata Rao 1953
A.102 and 103
A person was convicted and sentenced for 7 year imprisonment in 1942.
RPA Act came in 1951 so before-after controversy.

K Venkatachalam v K Swami Kant
Prevention of Disqualification Act 1959

Ram Krishna Hegde v State of Karnataka
Petitioner was an MLA and govt. wanted to make him the chairman of the planning commission.

CERC v UOI 2009
Disqualified before elections but elected-continue as member despite disqualification unless declaration/admission.

Joint Committee on Office of Profit
10 Members from LS and 5 members from RS
Continuous scrutiny of opposition and character of various government appointed bodies and report to both the houses
Tests
1. What are the emoluments/allowances to membership and
2. What is the nature of functions?
3. If advisory/no influence then no disqualification on account of OoP.

Parliamentary secretaries to aid and advice ministers given cabinet status/MoS status in many states such as Goa, Punjab, Haryana, Telangana, West Bengal, Assam and Mizoram
Court generally held it as unconstitutional and contrary to the constitutional intent of limiting the size of Ministry or cabinet and holding as OoP— disqualification unless incorporated u/Parliament (Prevention of Disqualifications) Act 1959.

AAP 21 MLA disqualification case-
21 MLAs were appointed as parliamentary secretaries by APP government.
Prabhat Patel filed petition before president to disqualify MLAs for holding OoP
President sought EC opinion and disqualified them.
AAP approached HC and tried to add the post into Delhi State (Prevention of Disqualification) Act retrospectively.
Delhi HC refused to grant interim relief but asked EC to hear afresh and decide again as there was lack of communication.

ANTI-Defection Law and Schedule X
Para 3-Split-Omitted by the 91st amendment 2003
Para 4-Merger-Not less than 2/3rd members agree to merge. Its different from defection
Para 5Exemption-No disqualification if elected as an officer, till holds office and rejoins original party.
Para 6-Decision on question of disqualification-Decision of Chairman/Speaker shall be final; Proceedings deemed to be u/a 122/212.

Kihoto Holohan case held para 6 of Schedule 10 unconstitutional on grounds that it was not ratified by more than half of state legislatures as required in such amendments.

GOVERNOR OF STATE
A.153-154
Appointment of governor (A.155)
Terms of office-Pleasure of President.
Eyes and Ears of Central Government
S.163 (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
Comparison between 53 and 163(1), 72, 73
Governor has more discretionary power than President.
Appointment of Chairman and member of State service public service commissions.
356-State Emergency
239-
200-

Legislative Powers of Governor

  1. Summons the legislature of the state
  2. Gives assent to bills passed by state legislature
  3. He may reserve any bill for the consideration of President
  4. No money or financial bill can be introduced without his/her prior recommendation.
  5. He can promulgate ordinances u/a 213 but he cannot promulgate ordinance without the instructions of President in some cases.

Judicial Powers of Governor

  1. Pardoning power u/a 161
  2. But is limited to offenses against any law relating to matter where the executive power of the state extends.

Governor also has some discretionary power u/a 163

MP Special Police Establishment v State of MP 2004

PANCHAYATI AND MUNICIPALITIES
1. 73rd and 74th Amendment gave constitutional status to Panchayats and Municipalities.
2. Existed since centuries
3. PART IX
4. 243-243O
6. Schedule 11
7. Consists of certain subject on which state government has power to make law.
29 Subjects-
Social Welfare, Family Welfare
What is Panchayat?
1. Village Council
2. Mode of local self-government
3. Decentralization of Power
Exists at 3 levels-
1. Village
2. Block
3. District

Javed v State of Haryana
Educational Qualification for election in Panchayat.
Can educational qualifications be the criteria? At what level? Village level? Central Level?
Will 2 child policy stop population explosion?
No.
Loopholes and malpractices.
News regarding 2 child policy-SC rejects PIL seeking making mandatory 2 child norm in all elections.
243(I)-
243(K)-

MUNICIPALITIES
On similar lines in Municipalities
Reservations
Levels
1. Wards
2. Metropolitan Area
Types of Municipalities-
1. Nagar Panchayat
2. Municipal Council
Municipal Corporation
Article 243R-
Article 243U-
Article 243V-

102, 191 and 361B have to be read together.
Article 361-B- If an MP or MLA is taking up a remunerative post, it would amount for disqualification.

PARLIAMENTARY PRIVILEGES
Article 105 and Article 194
1. For members, committees, Ministers, Attorney general, entitled to speak in the house
2. No civil or criminal liability for anything said or vote again.
3. Absolute immunity w.r.t to speech and voting subject to Article. 107, 121 and RoP
4. Fundamental Rights u/a 19(1)(a) and (2) and u/a 105 and 194.
5. No unparliamentary language/conduct.

Facts situation-
A reporter publishes the happenings of the house. Will he also be immune?
S.105(2)-
Reporting should be true and without malice. Substantially True.
Its qualified privilege.

Committee of Privileges (LS=15 & RS=10)
Parliament (Prevention of Publications) Act 1956

Powers, Privileges and Immunities of State Legislature, Re (1956 SC) (cases seeking Advisory opinion are referred to as Re)
Keshav Singh printed published and circulated pamphlets against CM and others outside house.
Speaker reprimanded him and sent him to jail for 7 days.
Petition u/s 491 CrPC and art. 226 to HC- released on bail-LA resolution against HC Justices, Keshav and lawyer for contempt of assembly so be arrested.
Petition to HC-FB w/0 jurisdiction, interim order to set aside.
Advice u/a 143. LA jurisdiction; contempt of LA; FB jurisdiction; outside house; lawyer.
Full bench of Judges advised against speaker.
Procedure adopted by speaker cannot exceed his jurisdiction.
If the procedure is unfair, court can review it. So limited judicial review.

Tej Kiran Jain v Sanjeev Reddy 1970 SC
Shankaracharya spoke in World Hindu Conference 1969 Patna on Untouchability. Next day some members of Bihar Assembly praised him and 6 others criticised him and used derogatory remarks against him. Followers of Shankaracharya filed a defamation case against them.

Gunupati Kesavaram Reddy v Nafisul Hasan (Blitz Editor) (1954 SC) 5J
Blitz editor Homi Dinshaw Mistry aspersions against UP LA speaker-speaker-referred to committee on Privileges. Summoned to appear-appear-did not appear-LA resolution to arrest on Breach of Privilege. Mistry arrested in Bombay-kept in Lucknow for 7 days in hotel-habeaus corpus to SC for violation of Article 22 and FRs. SC ordered release.
FR control privileges. IMP

MSM Sharma v Srikrishna Sinha (Searchlight Case) 1959 SC
Searchlight editor-MSM Sharma published expunged portions of speech-Bitterest attack on CM. LA/CoP=BoP. Why not action>
MSM Sharma writ u/a 32. Violation of art. 19(1)(a).
SC-Art. 194(3) will prevail over Art.19(1)(a); Harmonious construction, if conflict.
Action may be by house for breach of privilege, if inaccurate/garbled/expunged version of speeches, mis-reporting, mis-representation, premature publication.
Authority was given to publish only partial proceedings and not the expunged portions.

Other Privileges- (taken from UK)
Freedom from Arrest
40 days prior and 40 days after.
Right to exclude strangers
During secret session
Especially in War time session
Right to prohibit the publication of proceedings/debates
After 1886, UK allowed publication of proceedings.
Qualified privilege
Article 361A- it should be true without malice.
u/a 105(3) was amended by 44th amendment 1978
Right of house to regulate its own procedure
Rules of procedure shall be made by the house.
Right to regulate internal proceedings
Right to punish members/outsiders for contempt
Right to expel members.
These privileges started being interpreted differently by case laws.

PV Narasimha Rao v State (1998) 3:2
Bribe givers and takers for voting
Whether give bribe is illegal/unconstitutional and breach of privilege?
MP taking bribe and voting-still under privilege and cannot be disqualified u/a 105.
If they have taken bribery and have not taken, then they can be expelled. So 2 were expelled as they took money but did not vote.
Thos expelled said they no word ‘expelled’ in constitution so they cannot be expelled. If they had been disqualified they could not have become MP. art. 102 and 191 talk about disqualification.
SC said that an immunity does not mean absolute. If an MP is found taking bribe, doing criminal offence or convicted, he can be disqualified.

Raja Ram Pal v Hon’ble Speaker Lok Sabha 2007
MPs taking bribe to vote
Sting operation-live telecast-disqualified/expelled
Difference between being expelled and being disqualified

Other Privileges- (taken from UK)
Freedom from Arrest
40 days prior and 40 days after.
Right to exclude strangers
During secret session
Especially in War time session

Right to prohibit the publication of proceedings/debates
After 1886, UK allowed publication of proceedings.
Qualified privilege
Article 361A- it should be true without malice.
u/a 105(3) was amended by 44th amendment 1978
Right of house to regulate its own procedure
Rules of procedure shall be made by the house.
Right to regulate internal proceedings
Right to punish members/outsiders for contempt
Right to expel members.
These privileges started being interpreted differently by case laws.

LEGISLATIVE PROCEDURE (107-120)
Rules of Procedure for Conduct of business (CoB) in both houses.
BPST-Bureau of Parliamentary- Drafts laws and legislations.
indiacode.nic.in
Many parliamentary committees
Department related Standing Committee
Select Committees of LS/RS
Joint Committees for both houses.
Depending on the subject, membership shall be there.
As business of the houses grew, the committees and their membership also increased.
These are assisting bodies.
Types of Bills-
Ordinary Bills OB
Money Bill MB
Finance Bill FB
Financial Bill FB
Bill on Expenditure BE
Appropriation Bill (running/supply bill)

ORDINARY BILL
Can be introduced by minister, etc

Private member bill- A bill introduced by a member of the house who is not from the party in power.
Process
Asking for the leave of the house to introduce a bill.
Concerned minister who wants to introduce the bill has to give notice to the speaker 7 days earlier. Full Friday is reserved in RS for private members and 2.5 hours in LS.
If the speaker consents, the copies shall be sent to all members prior to 3 days before the bill is introduced.
1st ReadingIntroductory all members shall read the copies and give comments when the bill is introduced in the house. The will voting and will require simple majority. In case of constitutional amendment special majority.
Drafting, Notice, etc
Legislative competence to be checked. (lists)
2nd Reading- Consideration-The bill will be sent to standing committees which will take into account suggestions.
Now there are more than 31 standing committees.
General reading
Clause by clause reading.
What if there is a deadlock?
When there is no agreement over the bill.
Prez will convene a joint setting of the house.
No new clauses will be added here.
If the Lok Sabha is dissolved before the joint session notification will the bill lapse?
107(5)
If notification has been issued for joint session and then the LS got dissolved. Will joint session convene or not?
3rd Reading- Final– will require simple majority of those present and voting.
Money Bill is introduced in Lok Sabha. (To be decided by Speaker)
110-Money/Finance/Appropriation Bill (only in Lok Sabha) In RS it can be there only for 14 days. LS may agree or disagree with the suggestions of RS.
111-
No money can be taken out except by the authority of law.
Difference between Finance Bill and Financial Bill
117- Finance Bill. It’s partly money and partly ordinary bill. All money bills are financial bills but vice versa is not true.
Some nomenclatures (See BPST website)
Consolidated Fund of India CFI-
Reservoir of Funds
All revenues received by GOI is credited to CFI
u/a 266-most important account of GOI
Inflow by way of taxes like income tax, central excise, customs, non-tax revenues received by govt.
All loans raised by SG are done from this fund.
Contingent Fund-
Public Accounts-
Other receipts apart from CFI
Smaller than CFI
u/a 266(2)
Deals with the transactions related to debt and not covered u/CFI
It accounts for flows of those transactions where the govt. is merely acting as a banker.
These funds do not belong to the govt. They have to be paid back to the rightful owner. For example-provident funds, small savings, etc
Expenditures are not to be approved by the Parliament.
Provisions for how much & for what purpose to withdraw/appropriate money.
Provisions for demand for Grants (DFGs): Grants which govt. is demanding from parliament to spend in coming fiscal year.
Estimates of expenditure from CFI included in AFS
Revenue, capital expenditures, grants to Govts. Of states/UTs, loans and advances.
Generally one DFG for one Ministry/Department & more than one for larger Ministries/Department.
Estimated Expenditure: Sums required to meet expenditure charged upon the CFI (ECCFI-Non-votable items of expenditure) & sums required to meet other expenditure on revenue account from other expenditure (Demands for grants to HoP)
ECCFI-not to be submitted to the vote of Parliament, but only discussed.
Other Expenditures=Demand for grants DFGs to LS which may assent/reject/refuse/reduce any DFG
All DFGs to be made only after President’s recommendation.
Vote on Accounts-
Demands for Grants-
Annual Financial Statement-
Votes on Credit-
Supplementary Grants-
Contingent Grants-
Excess Grants-
Token Grants-
Regional Grants-
Cut Motions-
Annual Financial Statement 112– How to withdraw/appropriate money and how to spend it.
AFS comprises of 2 bills:
Finance Bill=Estimated Receipts or income. It is collection of funds.
Appropriation Bill=expenditure of government. Book of demands in case of appropriation bill.
Presented by FM& both are discussed in each HoP; amendments decided-govt. Makes changes, before passing.
Both are money bills to be laid before LS, passed by the HoP.
Article 114-Appropriation Bill (AB)-After DFGs made in LS, AB introduced for appropriation out of CFI of all money to meet grants to be made/Expenditure charged upon CFI
Authority given to the govt. to incur expenditure from & out of CFI
Voted by LS in form of Money Bill
Debate only on public importance
No amendment to AB proposed to vary amount/alter destination of any grant so made.
DFG-one DFG for one Ministry/Department generally
Estimates of expenditure from CFI
Included in AFS required to be voted in LS
Provisions wrt revenue & capital expenditures
Art. 115- Supplementary, additional or excess grants: President to recommend
Article 116-Votes on account, credit and exceptional grants: Allotting of limited sum out of CFI to execute to be spent on services/items until AB finally passed.
Votes of Credit-grants for an unexpected demand upon the resources of the government due to magnitude/indefinite character of service.
Exceptional Grants- Grant which forms no part of current service of any financial year.
Supplementary DFG: New Service not contemplated in AFS
Extra expenditure-supplementary estimate to be approved by Parliament.
Additional/Excess DFG: Money spent in excess of the amount granted;
Unexceptional/national emergency-no detail- lump-sum.
Finance Bill
Taxation proposals for ensuing year of the government introduced in LS after AFS;
Taken up for consideration & passing after AB is passed
Essential for raising revenues & includes AFS (general & Railways, DFGs, supplementary & Excess DFGs, votes on account, etc)
Financial Bill
Art. 117
Bill dealing with certain matters not strictly financial in nature; otherwise as good as ordinary bill as regards to the procedure for passing 2 things
Financial Bill cannot be introduced or moved except on the recommendation of the Prez. (except bill for reduction/abolition of tax) & Financial Bill cannot be introduced in RS.
Bill involving Expenditure
Kind of financial bill u/a 117(3) involve expenditure from CFI
This can be introduced in RS also & need the recommendation of Prez only at the time of passing/before the motion for passing is made.
Contingent Fund: Unforeseen, from CFI, prior to parliament approval.
Cut Motion:
Lack of confidence in govt.
DRSC considers DFGs of concerned ministry-Report to HoP-Parliament control over government expenditure.
Guillotine:
Exercise by the speaker of the house on the very last day of the period allotted for discussions on DFGs whether discussed or not, puts to vote all outstanding DFGs at a time specified in advance.
Govt. then formally introduces AB to authorise govt. to draw funds from CFI
After voting on AB, becomes Act, FB is taken up for consideration.
FB becomes Act-Final Budget gets approved.
Policy and Legislative Impact Assessment PLIA- New concept to determine whether a bill requires pre-legislative impact assessment.

PART 16-SPECIAL PROVISION RELATING TO CERTAIN CLASSES
Four points wrt SC, ST, Backward Classes and Anglo Indians
Reservation of seats in LS and State Assemblies for these classes
Whether the number of seats fixed?
1. Depends upon proportion of their population.
2. Census needs to be taken into account.
3. For Anglo-Indians, 2 seats in LS and 1 seats in in LA if they are not adequately represented.
4. Rational was socio-economic upliftment of these classes.
5. Reservation in jobs and services as well
6. Not for Anglo-Indians any more.
What needs to be considered?
Article 335– maintenance of efficiency of administration.
Balance between advancement of these classes as well efficiency of administration.
Establishing Commissions for these classes
1. Article 366
2. For SC, ST, Women and BC
3. Duties of National Commission
4. Power of Civil Court
5. Investigate
6. Recommend
7. Quasi-Judicial
8. They derive their authority from constitution but power is determined by statutes.

KC Jayashree v State of Kerala
1. Admission fee in colleges was 10000. A person asked for reservation.
2. Court said certain criteria should be taken account
3. Economic criteria.
4. Education
5. Living standard in society
6. Special privileges for those who need it.
7. Article 366 clause 24 and 25 enumerates the castes in these categories who were notified by President in 1950.

Article 341-Castes to be notified by President
Can one go to court against president’s notification?
1. No. Civil court does not have power to inquire into whether a particular caste is SC or not.
2. Clause 2 of 341-Only parliament has power to include or exclude a caste.
3. President has to make the list in consultation with governor but if he has to make some inclusion or exclusion, that can be done only by parliament.
Whether a person belonging to such a caste if migrates to other state will continue be eligible?
1. Status will not change for posts and services of Union but for state, it might change.
2. Depends upon the state list where he has migrated.
If a caste has various sub-classes and president notification does not mention all, will those not mentioned will be eligible?
No. Only those specifically mentioned.
Whether a person belonging to such a caste, if marries non-caste member eligible?
A Person belonging to such a caste marries a spouse non-socially backward person, the latter will not be eligible?
What about the children of such marriage?
Only if parents are able to prove that the child has suffered injustice and discrimination.
What about those who get converted to other religion?
1. Depends upon facts to facts.
2. Definition of Hindu
3. Whether he also changes the personal law?
4. His practices.

SCHEDULE TRIBES
Indigenous

State of Maharashtra v Milind AIR 2001
Whether a caste or a tribe was SC or ST was to be determined by looking the entries as they were in the order and no inquiry could be held and no evidence could be led in to establish that caste or tribe, its parts or groups not expressly included in the order was SC or ST. Neither the state government not any authority not court or tribunals are vested with any power to modify to vary the said orders.

PV Chinayia v AP
1. Article 341 indicates that there can be only one list in a state
2. A person cannot loose its status just by conversion to another religion.

ANGLO INDIANS
Article 366(2)-

NATIONAL COMMISSION FOR SC
Article 338-

NATIONAL COMMISSION FOR ST
Article 338A

NATIONAL COMMISSION FOR BC
Justice Kelkar Commission
1. To look into what classes can be classified as backward classes.
2. Recommended to consider the caste hierarchies.
3. Recommendation was not accepted.
4. Accepted that backwardness shall be considered by occupation.
Mandal Commission
1. Observed that 22.7% population was ST and SC and 52% population was BC.
Indira Sawhney case 2000
1. That caste only cannot be the basis of reservation.
2. Reservation can be for a backward class of a citizen of a particular caste.
3. Therefore from that the creamy layer and non-backwardness of citizens are to be excluded.
Ashok Kumar Thakur Case
1. Whether reservation should extend to private institution.
2. Principle of creamy layer.
3. Article 340-
4. National Commission for Backward Classes 1993
5. Power is of a civil court.
KC Jayashree v State of Kerala
1. Admission fee in colleges was 10000. A person asked for reservation.
2. Court said certain criteria should be taken account and no reservation only on the basis of caste and religion.
3. Economic criteria.
4. Education
5. Living standard in society
6. Special privileges for those who need it.

UNION TERRITORIES
Part 8 of constitution
3 categories
Number 1
Andaman Nicobar, Daman Diu, Chandigarh, Dadar & Nagar Haveli, Lakshadweep
Number 2
Pondicherry
Number 3
Delhi
239AA, 239AB
Before 1956, they were known as Part C states.
After re-organisation of states, it was felt that they should be centrally administered.
Legislative Assemblies in Delhi and Pondicherry
239B-Power of an administrator to promulgate ordinance during recess of legislature.
240-
241-
239AA-Special Provision wrt Delhi (69th Amendment 1991)

NCT Delhi v All India Civil Account
Issue-Can Delhi govt. and central govt in an appeal be pleaded as separate party?
Held-All UTs are administered by central government and if something happens, responsibility of central government
No. Doubt that UTs are administered by Centre but they have their own separate identity, they can plead as a separate party. They cannot be said to be merged into the identity of the central government

UNION JUDICIARY (Article-124-147-Union) (Article-214-237-State)
Judiciary as defined in constitution
Evolution, constitutional Provisions
Appointment and removal of judges
Powers of review

Mulberry v Madison US
Accountability and activism
Independence of Judiciary
Confusion
PIL is the result of Judicial Activism

SP Gupta v UOI 1982 (PN Bhagwati)
Continuous Mandamus
Direction shall continue
Adventurism
Delhi ceilings

SP Gupta v UOI 1982
Where a judge of the SC is to be appointed, the CJI is required to be consulted, but again it is not concurrence but only consultation.

SCAORA v UOI (2nd Judges case 1993)
Overruled the 1st judges case
Evolved the collegium system for the purpose of judicial appointments.

Re: Presidential Reference (3rd Judges case 1999)
SC laid down a process in which it said that the CJI should consult with a plurality of 4 senior most SC judges to form his opinion on judicial appointments and transfers.

NJAC Judgement (SCAORA v UOI) 2015
99th Amendment Act
Provided that Collegium System is not good and hence Judicial appointment must happen according with this system.
Collegium System
CJI along with 4 judges (generally senior-most) + A judge from HC (if required) recommends (to president) name of the persons to be appointed as Judges of SC.
NJAC Composition
PM+Leader of Opposition+Law minister+2 Eminent person (selected by PM+Leader of Opposition)
NJAC held unconstitutional.
Ratio was 4:1
Justice Kehar
1. Unconstitutional
2. Issue was how are judges judging the judge-makers.
3. NJAC did not provide adequate composition to Judicial component.
4. Impeaching directly the independence of Judiciary
5. Principle of Reciprocity– Give and take situation. If Law Minister is going to have say in appointment of NJACm then primacy of Judiciary is compromised.
6. Plurality is must.
7. Sensitivity of appointing Judges is so important. If wrong appointment is made, it would be dangerous
8. Width and Identity Test laid down in M Nagraj case. It says that 99th amendment is so wide that it crosses the width and identity test.
9. Consultation is the word in 124 which was added after so many deliberation in CA. NJAC disregards this spirit.
10. Judiciary is not an appointment in service in real sense and cannot be handled like they are handling that.
Justice Madan Lokur
Unconstitutional
Justice Kurian
1. Unconstitutional
2. Institutional Caution. We know that collegium has some problems as it lacks transparency, accountability, objectivity and there is trust deficit but 3. NJAC is more dangerous.
4. NJAC is like a structural bargaining which is not good for our country.
5. Problems of collegium needs to be rectified.
Justice Goyal
1. Unconstitutional
2. When constitution is saying something, Parliament cannot override that.
3. NJAC is beyond the power of Parliament.
4. In India Constitution is sovereign and not parliament but NJAC is reversing that.
5. Lack of clarity regarding the role of law minister and imminent persons.
Justice Chelemeshwar
1. Constitutional
S.124(4)-