case laws sections everything Flashcards
except in spheres where the governor acts on his own discretion, he is to take the aid and advice of the council of ministers
samsher singh v state of punjab
President and governor have similar functions, what president is to the nation, governor is to the state
Ram Jawaya Kapur v State of Punjab
grounds of qualifications for tribunal members was challenged, court upheld the exclusion of HC jurisdiction, chairman must be retiring CJ of state or senior judge of HC
sampath kumar v UOI
sampath kuman v UOI reiterated by
RK Jain v UOI
Judicial review is part of the basic structure of the constitution and remedies against tribunals are also available under articles 32, 226 and 227
L Chandra v UOI
how many items in each list
list 1: 97
list 2: 66
list 3: 47
Doctrine of Territorial Nexus
State of Bombay v RMDC
Doctrine of Pith and Substance
Profulla mukherjee v Bank of Khulna
doctrine of colourable legislature
MR Balaji v State of Mysore
Doctrine of Repugnancy
Deep Chand v UOI
Harmonious Construction
Minerva Mills v UOI
Calcutta Gas Company Limited v State of WB
RC Cooper v UOI
Validity of ordinance making power challenged on the ground that 123 doesnt make president the final arbiter on exerecise of the conditions on which ordinance is issued
Justice Ray said that this power is subjective and can be challenged on the basis of bad faith/mala fide/corrupt motive
re-promulgation of an ordinance
Krishna kumar singh and Anr. v state of bihar
Under article 131 only a state can raise a water dispute not an individual or society
Gandhi Sahitya Sangh v UOI
dispute regarding political agreement to construct a dam is not a water dispute
State of Haryana v State of Punjab
Height of Mulla Periyar Dam not a water dispute
State of TN v State of Kerala
Principles followed by Tribunals
Doctrine of Riparian rights
Doctrine of Prior Appropriation
Doctrine of Community of interest theory
Doctrine of Equitable appointment
right to stand as a candidate in elections is a special right and can only be exercised by conditions laid down by it
Jamuna Prasad v Lacchi Ram
Right to elect is a statutory right
Jyoti Basu v Debi Ghosal
SS Dhanoa v UOI
EC were appointed for the first time (for a term of 5 years or till the age of 65 whichever came first)
notification was challenged, held that power to create EC was with president
T N Seshan v UOI
recommendation of removal to be based on intelligible and cogent considerations
TN Seshan was a CEC and he challenged that the EC should not be a multimember body or he shoul have sole repository of powers and the rest are advisors
court held that it is a multimember body, and being chairman doesnt mean he has all the powers
commission can postpone elections under certain circumstances subject to judicial review
Digvijay Mote v UOI
while adjudication upon issues regarding recognition of a political party EC is a tribunal
APHL Conference Shillong v WA Sangma
which amendment act provided for defection
52nd amendment act of 1985
Which schedule is for defection
10th schedule
which amendment act made a change in the 10th schedule and what
91st amendment act
removed the 1/3rd party split
tenth schedule changed which four articles of the constitution
101(3)(a), 102(2) [centre]
190(3)(a), 191(2)
what are the grounds for disqualification for defection
1- if an elected member gives up his membership voluntarily
2-if he votes or abstains from voting in the house, contrary to the direction issues by his party
3-independently elected member joins a party
4- any nominated member joins a party at the end of 6 months
speakers order disqualifying a member is subject to judicial review
kihota hollohon v zachilhu
defecting members are not allowed to become minister for the term of legislature or next election, whichever comes before
BJP-UP case
person defects if he is expelled by one party and joins the other
G Vishwanathan v Speaker
test for defection based on whether he has given up his independent character to be ascertained from material on record and his conduct
jagjit singh v state of haryana
why did we require defection
in 1967 and MLA in Haryana - Gaya Lal changed his party three times in a day
a committee was established under the home minister: yashwantrao balwantrao
(chavan commission)
exceptions for defection
1- when a member goes out of the party as a result of a merger (2/3rd members agreeing is a merger)
2- if a member after being elected as presiding member of the house voluntarily gives up party membership
3- 1/3rd party split exception has been removed
who is the deciding authority for defection
the presiding officer (speaker)
what are the rule making powers given for defection
1- presiding officer is entitle to make rules to give effect to the provisions of the tenth schedule
2- all the rules must be placed before the house for 30 days
3- the house may approve or direct them
4- according to the rules made so the presiding officer can take up defection case only after he receives a complaint
5- before taking a final decision member must be given a chance to defend himself
6- he may also refer the matter to the committee for inquiry , hence defection does not have an immediate and automatic effect
who are parliamentary privileges given to
those who under the constitution are entitled to speak and take part in proceedings of the house (attorney general also has)
art 105 (1)
there shall be freedom of speech in the parliament
105(2)
immunity for anything said or any vote given (extends to publishing as well)
state equivalent of 105
194
what are the limitations of parliamentary privileges
- everything should be in accordance with art 118 of the constitution under 121, cannot discuss conduct of judges of the SC or HC
PV Narsimha Rao case
also known as jharkhand mukti morcha case shibu soren and some of his party MPs were accused to taking bribe to vote against the then PV Narsimha Rao government SC quashed the case citing immunity under 105(2)
article 122
validity of any proceeding cannot be called into question on grounds of irregularity of procedure of any officer of parliament
courts cannot issue writs under 226 to restrain house from enacting any legislation even if it is ultra vires, they can do this only on the grounds of illegality or unconstitutionality
state of punjab v sat pal dang
freedom from arrest explain
for civil proceedings: cannot be arrested 40 days before or after a session, this is sot ensure safe arrival and attendance of member on scene of parliamentary duties
if arrest is on a criminal charge: speaker to immediately be informed of arrest, reason, conviction/detention and the place
Disciplinary powers over members
has power to enforce discipline, punish its members for their offending conduct, expel a member etc
power of house to punish for contempt
punish for contempt of house and breach of privilege (admonition, reprimand, suspension, fine etc)
publications of proceedings
searchlight case (msm Sharma v sinha) misreporting speeches made in the parliament is a breach of privilege
areas of conflict in parliamentary privileges
right to prohibit certain publications conflicts with the right to speech and expression
parliamentary privileges are referred to as absolute rights with no restrictions but Fr of 19(2) is an absolute right with reasonable restrictions
Keshav Singh v speaker
keshav singh- not a member of parliament was held guilty for contempt of house and was sentenced to imprisonment for seven days
petitioner moved the court under habeas corpus petition alleging that his detention was illegal and mala fide as he was not given the opportunity to defend himself
allahabad court granted him interim bail and he was released
aggrieved by this, comtempt of court order was passed against keshav singh, his advocate and the judges that granted him interim bail
SC held that the judges were not guilty as hey have the jurisdiction to pass an order of interim bail and release person from illegal detention as it is an FR under article 22
when was the parliamentary privilege rule established
rule became established in sir Elliot johns case in the 17th century
seditious statements given by him were given protection and later incorporated into the bill of rights
how many times has emergency been invoked
Indo-China War in 1962
Indo-Pak war in 1971
Internal disturbance- 1975
emergency provisions in which part
XVIII (18)
how many types of emergency
national 352
state 356
financial 360
on what grounds can proclamation of national emergency be de
war, external aggression and armed rebellion
changed internal aggression to armed rebellion
44th amendment
internal aggression is wider than armed rebellion, armed rebellion actually poses a threat while internal aggression may not
naga peoples movement for human rights v union of India
can president act on PMs advice alone (for emergency)
352 (3) no (added by 44th amendment) he needs a written communication from the Union Council of Ministers
which amendment and case made it possible to judicially review emergency proclamation
38th amendment made it so that the proclamation could not be reviewed but the 44th amendment changed that in minerva mills case
it was held: court can challenge emergency on the grounds of mala fide or that the proclamation was based on extraneous and irrelevant facts
what are the consequences of emergency
- centre can make law on any subject under the state list (lasts for six months after the proclamation ceases)
- they can levy taxes on state subjects
- fundamental rights are suspended but art 20 and 21 still operate by way of 44th amendment
- centre can direct state to manner in which it should exercise its executive functions
- any provisions related to distributions of funds may be modified/subjected to exemptions
- term of lok sabha may be extended by one year
356(5) no house can pass resolution to extend emergency unless
proclamation under 352 is operating at the time election commission certifies continuance of the proclamation due to difficulty in conducting elections for state legislature
who said india is a quasi federal
KC Wheare
which form of government is constitution supreme is
federalism (suprema lex)
which schedule creates three lists for the division of powers and what are the lists
7th schedule
union
state
concurrent
India that is Bharat, shall be a union of states
Article 1
power of centre to create or abolish states, change boundaries or even change names
can be done done by simple legislation by simple majority to be done with consultation of respective state
articles 2 and 3
administrative tribunals
article 323A
which amendment added tribunals
42nd
laws made under administrative tribunal article may provide for-
a) provide for the administration of a tribunal
b) specify jurisdiction, powers and authority of the court
c) exclude jurisdiction of all courts except SC under 136
d) provide for procedure of the tribunal
e) transfer the existing cases that would now fall under the tribunal
f) any supplement to the above
tribunals for other matters article
323B
what are the other matters tribunals can be created for
1- tax issues
2- foreign exchange, import and export
3- industrial and labour disputes
4- land reforms
5- ceiling on urban property
6- elections to either house of legislature (state or union both)
7- production, procurement, supply and distribution of foodstuff
8- rent
what did the parliament pass in pursuance of 232A
Administrative tribunals act, 1985
what was the composition of tribunals under the act
one chairman and such number of vice chairman as the appropriate government may deem fit
appointed by president incase of central tribunal and by governor incase or state of joint tribunal
existing or former judge of HC is qualified but person with only administrative issue is also qualified (later challenged)
governor article
153
appointment of governor who does it and which article
155 and the president
term of office of governor = article
156 and generally 5 years but he holds office at the pleasure of the president and can resign when he wants to as well
qualification of governor + article
157
citizen of india and 35 years old
conditions of being a governor
158
must be an MP or an MLA, when he becomes a governor he is deemed to have vacated that seat
should not hold any office of profit during his term
provided with the allowance and privileges as per law and in the absence of law as per schedule 2
if a person is a governor of two of more states then allowance is decided accordingly by the president
allowances cannot be reduced during his term of office
oath of the governor
administered by president 159
executive powers of the governor
make rules about the state government
right to seek info from the CM of the state and he is bound to provide such information
can also ask CM for providing decisions of individual ministers
incase of no confidence the governor can dismiss the CM and and the council of ministers
Judicial powers of the governor
Power to grant pardon
art-161- reprieve, commute, respite or remit the punishment of a person
legislative powers of the governor
summon the houses when he thinks appropriate but there shouldnt be a gap of more than 6 months between the sitting of the houses
dissolve the legoslative assembly under article 174
address the house(s) after each general election and the first session
governors assent required for certain bills to pass, can send certain bills back (not money bills tho), right to reserve bills for president
nominate members from various fields to the house
financial powers of the governor
demand for grant by state can only be made on the recommendation of the governor
ask state legislature for additional grants under article 205
to introduce a money bill prior recommendation of the governor is necessary
contingency fund of the state can be used by the governor at his disposal
recommendations of governor necessary in making changes in financial matters
authority to ensure annual budget is laid before the house and passed
Emergency powersof the governor
similar to pres but governor cannot declare emergency
he can send a report to the president when the constitutional machinery has failed
plays an advisory role in the promulgation of emergency
in many cases of state emergency governor assumes power acting as an agent of the president
interstate water dispute article
262
regulation and development of interstate rivers and valleys, entry what
Entry 56 union list
issues related to water supply, storage, irrigation etc mentioned under
Entry 17 of the state list
which article allows SC to take cognisance of water disputes
131
explain river boards act
river boards act 1956
made under entry 56 list 1 (provides for establishment of river boards)
this is for the development and regulation for rivers and river valleys
lots of disputes between states despite entry 17
job is to advise interested state governments
Powers of river boards
1- advise governments on regulation and development
2- advise govts on dispute rsilution
3- prepare schemes for development
4- allocate funds for execution of such schemes
5- watch progress
6- anything supplementary to the above
to resolve disputes and provide for adjudication of inter state river water what was passed
Inter-state River Water Dispute act 1956
doctrine of riparian rights
those who posses land alone the rivers have the right to reasonably access and use the water
doctrine of prior appropriation
first party to take a quantity of water for beneficial use, has the right to continue to use that quantity of water for that purpose
doctrine of community of interest
river water belongs to the whole community and should be shared equitably to maximise benefit
Doctrine of equitable appointment
enable a state at the mouth of the big river to insist that no state higher up shall make any sensible diminution in the water which comes down the river
advisory jurisdiction of the supreme court article
143
original jurisdiction + article
131
between state and centre
between states
between state and centre on side sides and other state(s) on the other
original jurisdiction where will it not apply
interstate water disputes
treaties signed before promulgation of the constitution
treaties signed that specifically mention that original jurisdiction of SC will not apply
finance commission matters
allocation of funds b/w centre and state
commercial disputes b/w centre and state
power of issuing writs
guarantor and protection of FR
habeas corpus
mandamus
certiorari
prohibition
quo warranto
appellate jurisdiction
Article 132(1), 133(1) or 134 of the Constitution
Special leave petition
136
determination of office of profit
whether the government is the appointing authority
whether the government can terminate the position
whether the
whether the government decides the renumeration
the source of renumeration
the power that comes with the position
there shall be a president of india
Article 52
president must act with aid and advice of the council of ministers
74
presidents power to grant pardon
72
pardoning power of president may be exercised when
in all cases of punishment by court martial
in cases where the offence relates to matters of executive power
cases with punishments of death sentence
presidents power of pardoning presents a wide power which doesn’t require guidelines but is subject to judicial review
Kehar singh v UOI
judicial review for pardoning power is available on the grounds that (+case)
order was passed without application of mind
order was mala-fide
order was passed on irrelevant consideration
relevant material was not considered
order is arbitrary
Eppuru Sudhakar case
pardoning power must not be used in an arbitrary manner and framing of guidelines is recommended
Maru Ram v UOI
pardoning power must be exercised in accordance with the aid and advice of the council of ministers
Ramana Dayaram Shetty case
A Money Bill is a specific category of bill defined in Article
110
appointment of SC judge article
124
appointment of HC judge article
217
first judges case
SP Gupta v UOI
second judges case
SC advocates on Record v UOI
third judges case
RE: Special reference 1 of 1998
who supported the NJAC Act
Justice Chelameshwar
