CONSTI2 mod 9-17 Flashcards
National Emergency
● Article 352
Article 352-
If the president is satisfied that a grave emergency exists, whereby the
security of India, is threatened, whether by war or external aggression or armed rebellion,
he may, by a proclamation make a declaration to that effect in respect of whole of India or
such part of India, as may be specified in Proclamation = this can be done even before the actual occurance of war or aggression- if presidnet is satisfied of imminent danger
TERM ARMED REBELLION WAS INTRODUCED BY 44TH AMENDMENT REPLACING INTERNAL DISTURBANCE
AS THE TERM INTERNAL DISTURBANCE IS TOO VAGUE AND PRONE TO LIBERAL INTERPRETATION.
Article 352(2): Such a proclamation may be revoked by subsequent proclamation.
● Article 352(3): The President shall not issue a Proclamation under clause (I) or a
Proclamation varying such Proclamation unless the decision of the Union Cabinet that such a Proclamation may be issued has been communicated to him
in writing
every proclamation of emergency must go to both houses and if not approved before end of one month - then they will cease to operate.
If the proclamation is issued when LS is dissolved, then the Proclamation shall cease to operate at the expiration
of thirty days from the date on which LS sits after reconstitution
Article 352(5): A Proclamation so approved by both houses shall continue till 6 months and expire unless it is revoked earlier or if it is passed again by both houses, it will continue for another 6m
effect of national emergency
Art. 353: While a proclamation of emergency is in operation, the executive power of the
union extends to the giving of directions to any state, regarding the manner in which its
executive power is to be exercised.
● Article 354: President mat, by order, direct According to Article 354 the Centre has the
power to alter the distribution of revenue between the Union and the State
● Article 358: While the proclamation of emergency is in operation, the provisions of article 19 may be suspended. However, the fundamental rights under Article 20 and Article 21
cannot be suspended. = only if its abt war/external agression NOT armed rebeliion
Makhan Singh v. State of Punjab
Continuation of proclamation and
imposition of restrictions on fundamental rights during such emergency are matters
which are best left to the executive, which would be able to assess the extent of the
crisis in the given situation. The argument that, during such an emergency, the
executive may abuse its powers, and the citizen would be left without a remedy,
was repelled by the court as being a political argument, with an indirect impact on
the constitutional question.
REFORMS INTRODUCED BY 44TH AMENDMENT
Whether the emergency should continue to be in force or not must periodically come before both houses of parliament (every 6 months).
President is obligated to revoke a proclamation of emergency or vary the same if lok sabha passes a resolution disapproving the same (Art 352(7)).
Where a notice in writing has been signed by not less than 1/10 of the total members of lok sabha has been given of their intension to move a resolution disapproving the proclamation of emergency to speaker or president, followed by a Special sitting within 14 days for purpose of considering such resolution.
By 38th amendment 1975** clause 9 was added to art 352 **which gave president power to **issue 2 different proclamations on 2 different grounds at the same time. **
Cases on judicial review of proclamation of emergency
Minerva mills v uoi : acc to j. bhagwati, whether the president in proclaiming emergency under art 352 has applied his mind or acted outside his powers or acted malafide in proclaiming emergency could not be excluded from scope of judicial review.
State of rajasthan v uoi: if the satisfaction of president is malafide or based on wholly extraneous/irrelevant grounds, the court would have jurisdiction to examine it. This is the narrow area in which the power under art 356(1) is subject to judicial review.
S.R. BOMMAI V UOI, 1994
The case dealt with the misuse of Article 356, which allows the President to impose President’s Rule (emergency rule) in a state.- and dismissal of state govt
- here judgment clarified that the Centre (Union government) cannot dismiss a state government arbitrarily using Article 356.
The validity of proclamation can be tested on these grounds-
1. whether issues based on any material at all,
2. whether that material was relevant,
3. whether proclamation was issued in mala fide exercise of power, proc. is based on wholly irrelevant grounds.
Where there is prima facie case against validity of proclamation the burden of proving relevant material lies on centre.
The material on which advice was tendered is not the part of advice hence can be disclosed to court without infringing art 74(2).
Union govt. has to produce material on basis of which action has been taken
ADM Jabalpur v. Shivkanth Sukla
emergency
aka habeas corpus case= that in cases of emergency= art 226 petitions of habeas corpuse or any other order to enforce rights of people detained under maintenance of internal security act.
MAJORITY held:
Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the fundamental rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
Dissenting opinion by J Khanna:
During the proclamation of emergency article 21 only loses the procedural power but the substantive power of this article is very fundamental and the State does not have the power to deprive any person life and liberty without the authority of law.
Rameswar Prasad v. Union of India
In 2005, Bihar held elections for Legislative Assemblies. No party was able to form a government. As a result, on March 7, 2005, a notice was issued establishing President’s Rule in the state until a government could be constituted. The President’s rule was only supposed to be transitory. However, on April 27, 2005, the Governor published a report stating that there is a possibility of horse-trading in the state and that another chance to form a government should be offered. On the 21st of May, 2005, the Governor presented a new report in which he repeated his previous position and requested that the suspended Assembly be dissolved so that the electorate could prove their government in the Assembly once more. The Legislative Assembly of Bihar was dissolved on May 23, 2005, as a result of this report. This was argued in front of the Supreme Court.
HELD: The dissolution of the Legislative Assembly was ruled unconstitutional. The case was decided with a 3:2 majority in favour of the argument that the president’s order fulfils the criteria of being unconstitutional.
The protection provided by Section 361 does not preclude the Court from examining the action’s legitimacy, including based on mala fide intent.
art361 provides immunity to governer
SPECIAL REFERENCE NO. 1 OF 2002 AIR 2003 SC 87.
The provisions of Article 174 are mandatory in character so far as the time period between two sessions is concerned in respect of live Assemblies and not dissolved Assemblies.
Article 174 and Article 324 operate in different fields. Article 174 does not deal with elections which is the primary function of the Election Commission under Article 324. Therefore, the question of one yielding to the other does not arise. There is scope of harmonizing both in a manner indicated supra.
Article 174 is not relatable to a dissolved Assembly. Similar is the position under Article 85 vis-a-vis House of People. Merely because the time schedule fixed under Article 174 cannot be adhered to, that per se cannot be the ground for bringing into operation Article 356.
As Article 174 does not deal with election, the question of Election Commissioner taking the aid, assistance or co-operation of the Center or the State Governments or to draw upon their resources to hold the election does not arise. On the contrary for effective operation of Article 324 the Election Commission can do so to ensure holding of free and fair election. The question whether free and fair election is possible to be held or not has to be objectively assessed by the Election Commission by taking into consideration all relevant aspects. Efforts should be to hold the election and not to defer holding of election.
Article 174= state legislature must meet every 6 months Art 85=union
Art 324: control of elections vested in Election Commission
President’s Rule (Article 356): Invoked when the state machinery itself breaks down. This could be due to reasons like political instability, collapse of law and order, or failure to hold elections.
Financial Emergency: Article 360
the proclamation or the continued operation. Which was later removed and now the
44th Constitutional Amendment Act of 1978 says that the President’s ‘satisfaction’ is
not beyond judicial review. It means the Supreme Court can review the declaration of
Financial Emergency.
Any such direction may include
■ A provision requiring the reduction of salaries and allowances of persons
serving a state, as also of person serving the union, including judges of HC
and SC
■ Provision requiring all money bills to be reserved for the consideration of
the president after they are passed by the legislature of the state.
state emergencyPRESIDENTS RULE
Art 355:
○ Duty of the Union to protect States against external aggression and internal
disturbance
explanation: Central government takes over the administration of a state that’s facing a breakdown in its constitutional machinery.
Provisions:
The state’s elected government is suspended.
The Governor takes charge of the state administration on behalf of the President.
The state legislature might be dissolved or suspended.
Article 356
○ If the president,
■ on the receipt of report from the governor of a state,
■ is satisfied that a situation has arisen in which the government of the statecant continue= proclamation \
Effects (Article 356-357)
a) assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor
When Emergency ceases to operate. Article 356 (3-4)
○ Such a proclaimation creases to operate after two months but not if before such
period of two months, it has been approved by resolution of both Houses of Parliament.
Article 356(4)
■ Unless revoked, a proclamation so approved creases to operate on the expiry
of six months from the date of issue of proclaimation.
amendment of constitution types
There are three ways in which the Constitution can be amended:
1. Amendment by simple majority of the Parliament =
300 – Total majority
200 – People present
So more than 50% of people present & voting
101 – People who need to vote
this is for matters such as formation of new states, altering boundaries, abolition/creation of legislative councils,
- Amendment by special majority of the Parliament=
300 – Total majority
250 present and voting
2/3rd present and voting
So, 167 members
The provisions which can be amended by this way include - Fundamental Rights;
- Directive Principles of State Policy; and
- All other provisions which are not covered by the first and third categories. also 3rd stage of reading bill.
total membership of each house and 2/3 of each to be present and voting
- Amendment by special majority of the Parliament and the ratification of at least half of the state legislatures.
300 – Total majority
250 present and voting
2/3rd present and voting
So, 167 members
+ >50% OF STATES
(So, 2/3rd present and voting + more than 50% of ratification by the States) this is for matters such as election of president and its manner= election of president, supreme court, sctent of executive power of state and center, lists in 7th scehdule and to AMEND AMENDMENT PROCEDURE
POWER AND PROCEDURE FOR
AMENDMENT
Bill to amend the constitution may be introduced in either of the house of
Parliament.
The previous sanction of the President is not required for introducing in Parliament
any Bill for amendment of the Constitution.
Must be passed by each house by a majority of total membership of house and by a
majority of not less than 2/3 of the members present and voting.
When bill passed by both the houses it shall be presented to President for his assent
who shall give his assent to the bill and thereupon the constitution stands amended.
Most of the provisions can be amended by the ordinary leg. process.
Shankari Prasad v UOI
Post-independence in an attempt to promote socio-economic development the government of India introduced various agrarian reforms and reservations, across various states of the country. The reforms primarily focused on land redistribution
schemes across different categories of landlords.
It was the Patna High Court which declared the Bihar Land Reforms Act 1950, asunconstitutional, violative of Article 13(2) of the Indian Constitution.
validity of the first constitutional amendment 1951 was challenged on grounds
that with the insertion of A31-A and A31-B the two provisions limited the scope of right to property- a fundamental right. It
was contended that the first amendment also violated Article 13(2), which is deemed as a protector of fundamental right.
Also, it raised issues such as-whether the parliament can amend the constitution? Can the fundamental rights be amended?
And, to what extent can the constitution be amended under Article 368?
HELD: It was evident that there existed a conflict between Article 13 and Article 368 of the Indian constitution. On one
hand Article 368 gave legislature the power to amend the constitution at the same time Article 13 (2) restricted the same. The
Supreme Court in this case used the doctrine of harmonious construction in an attempt to resolve the conflicting provisions.
It was concluded that the word ‘law’ in Article 13 (2) is for ordinary laws and not constitutional laws. Thereby limiting the
extent of ‘law’ under Article 13 (2).This also meant that the parliament had exclusive power under Article 368 to amend the
constitution including the fundamental rights under part III of the constitution4. The apex court validated Article 31 A&B
and also upheld the validity of the agrarian land reforms.
Sajjan Singh v. State of Rajasthan
Facts- Ratlam, a princely state that eventually joined the Indian Union, was governed by Sajjan Singh. Sajjan Singh and
the Indian government entered into a contract in 1949 that gave him a number of rights and privileges, including the
ability to receive a yearly privy purse. The Constitution (26th Amendment) Act, which was passed in 1954, removed
the rulers of the former princely states’ privy privileges and privy funds. In the Supreme Court, Sajjan Singh contested
the legality of the 26th Amendment Act, claiming that it infringed his fundamental rights.
Issues-
Whether a modification to a fundamental right within Article 368 qualify as “law” as per Article 13 (2)?
Judgment- The Supreme Court of India confirmed the constitutionality of the 26th Amendment Act. he Court further said that the word “law” in Art. 13(2) does not include a law passed by Parliament by virtue
of its constituent power to amend the Constitution. The Court further ruled that because royal privileges and privy
purses were never regarded as rights in the first place, their elimination did not infringe on the fundamental freedoms
protected by the Indian Constitution.
also, The phrase “amendment of the Constitution” clearly and indisputably refers to changing all of the Constitution’s
clauses.
Golaknath v State of Punjab
n 1953, the Punjab government enacted the Punjab Security of Land Tenures Act, 1953. This Act was placed under the ninth
schedule of the Constitution of India by the 17th Constitutional Amendment Act, 1964. Two brothers named Henry and William
Golaknath had possession of over 500 acres of land in Jalandhar, Punjab. Under the newly enacted Act, the Golaknath brothers were
informed by the government that they could only have 30 acres of land and that portion of land would be given to tenants while the rest
would be declared surplus and taken over by the government.
It was held that the fundamental rights provided under part 3 of the constitution cannot be subjected to process of amendment
provided in article 368 if any of such rights provided under part 3 is to be amended, a new constituent assembly must be convened for
making a new constitution or radically changing it. Justice subba rao, chief justice of India of that time concluded that the 17th amendment
violated the fundamental rights of acquiring any land and indulging in any lawful profession granted to the Indian citizens by the
constitution. The Supreme Court reversed its previous decisions which had upheld parliament’s power to amend all parts of the
constitution, including part 3 related to fundamental right. The judgement left parliament with no power to curtail fundamental rights.
BUT THEN
24th Amendment Brought to annul the effect of Golaknath case judgement.
It restored the absolute power of the Parliament to amend any part of the
Constitution including Part III (fundamental rights).
The president’s assent to the Constitution amendment bill was made
obligatory.
It amends article 13 of the Constitution to make it inapplicable to
any amendment of the Constitution under article 368.
It substituted a new marginal heading to article 368 in place of the old
heading “procedure for amendment of the constitution”. The new heading is
“power of parliament to amend the constitution and procedure thereof.”
Keshavnanda bharti v State of Kerela
Keshavnanda bharti v State of Kerela
AIR 1973 SC 1461
Court by a majority of 7:6 overruled the Golaknath case and held that
Parliament has wide powers of amending the Const. and it extends to all the
Articles but amending power is not unlimited and does not include power to
destroy or abrogate the basic structure/framework of Constitution.
Essentials of basic structure of Constitution listed by judges were only
illustrative and not exhaustive.
concept of basic structure included:
- supremacy of the Constitution
- republican and democratic form of government
- secular character of the Constitution
- separation of powers between the legislature, executive and the judiciary
- the mandate to build a welfare state contained in the Directive Principles of State Policy
- unity and integrity of the nation
I.R. Coelho v State of T.N. AIR 2007 SC 861
I.R. Coelho v State of T.N. AIR 2007 SC 861
9 judge bench held- Amendments made after the keshavnanda bharti case shall be tested on
touchstone of essential or basic feature of constitution as reflected in Art 21, 14 and19;
parliament has power to amend Part III subject to lim. of basic structure doc.; the ‘effect and impact’ test (what are the consequences of
the said amendment) should be considered while determining whether any law is damaging the
basic structure or not.
Waman Rao v UOI
Waman Rao v UOI - Held in 1981 - The SC held that the amendments made to the 9th Schedule before the Kesavananda
judgement are valid and those passed after that date can be subject to scrutiny. Basically stated
that the previous judgement should not be applied retrospectively.
art 245 and 246
Art 245 defines the territorial limits of legislative powers vested in the Parliament
and state leg. Art 246 defines respective jurisdiction of the union and state
legislature with respect to topics of legislation. Art 245 is concerned exclusively
with the territorial division of law making power of the union and state.
**Art 245(1) **lays down rule of Private international law to the effect that all
laws are territorial i.e. state leg can make laws for the territory of that state
only.
However, Art 245(2) serve as an exception to clause 1 as it provides that no
law MADE BY parliament shall be unconstitutional on ground of extra
territorial effect.
The state legislature cannot make extra territorial laws except when there is
sufficient connection/nexus between the state and the subject matter of
legislation. Though the object may not be physically located within the
territorial limits of state (A.H. Wadia v CIT, 1947)
State of Bombay v RMDC
State of Bombay v RMDC AIR 1957 SC 699
Facts- A weekly newspaper printed and published in Bangalore contained a crossword prize competition for
which entries were received from various parts of India including State of Bombay. A large no. of prize
competitors filled up the entry forms along with entry fee at collection depots set up in Bombay. The Bombay
legislature passed a law- the Bombay lotteries and prize competition control and tax act,1948 which imposed
tax on lotteries and prize competitions in the state. State of Bombay levied tax on sporting star newspaper
which was printed and published in Bangalore but had wide circulation in Bombay. RMDC challenged this
act on ground that no sufficient nexus between state taxing power and firm’s activities, as its head office
existed in Bangalore.
Issue-Whether state of Bombay can levy tax on newspaper published and printed at Bangalore?
Judgement- SC applied the ‘doctrine of territorial nexus’ to this case and held that a sufficient territorial
nexus exist for the state of Bombay to tax the newspaper printed and published from Bangalore. If there is
sufficient nexus between the person sought to be charged and state seeking to tax him the taxing statute would
be upheld. But the connection must be real and not illusionary. The liability sought to be imposed must be
pertinent to that connection. Whether there is a sufficient connection is a question of fact and will be
determined by the court in each case. Hence court held that there exists a sufficient territorial nexus which
enables state of Bombay to tax the respondent who was residing outside the state.
State of Bihar v Charushila Devi
State of Bihar v Charushila Devi AIR 1959 SC
1010
Facts-The Bihar state board of religious trust, Patna sent a notice to the petitioner asking her to
furnish a return in respect of trust known as Shrimati charusila trust. The petitioner protested and
moved the court to quash the proceedings taken against her by the board on ground that there is no
territorial nexus existed between trust properties situated outside Bihar and the power of the board to
ask for return to those trust properties.
Issue: whether territorial nexus exists between Smt. Charushila trust and notice issued under Bihar
hindu religious trust act by Bihar state board of religious trust, Patna?
Judgement- The court held that a state legislature has the power to legislate with respect to
charitable and religious trust situated within its territory even though any part of the trust property
small or large may be situated in another state. The trust being situated in a particular state the state
has legislative power over it and its trustees, administering the trust. Bihar hindu religious trust act
could affect the trust property situated outside Bihar but being operated by the trust situated within
the territory of Bihar. The court held that Bihar trust act applies to the Charushila trust which is in
Bihar and they cannot be struck down on the ground of extra territoriality.
when can union formulate on state list ?
Exceptions to general rule of distribution of
subject matters of legislation under Art 246
Parliament can make a law with respect to matter enumerated in the State list, if it
is necessary or beneficial to the national interest. (Art 249)
Art 353 provides that while a proclamation under art 352 is in operation, the
parliament shall have the power to make laws with respect to matters not included
in the Union list or concurrent list.
2 or more states may request the Parliament to legislate on the subject matter of
the state list. (Art 252)
Art 253 authorises parliament to make laws on any subject included in any list to
implement any treaty, agreement or convocation with any other countries or any
decision made at any international conference/asso./body.
PRINCIPLES OF INTERPRETATION
OF LISTS
PRINCIPLES OF INTERPRETATION
OF LISTS
In ascertaining the respective jurisdiction of Parliament and the state
leg set out in Art 246, the following principles of interpretation have
been upheld-
- Doctrine of Harmonious Construction
- Doctrine of Pith and substance.
- Doctrine of Colorable Legislation.
- Doctrine of Ancillary Power.
- Doctrine of Repugnancy- Article 254.
