Constitution Law 1 Flashcards
Preamble 3 cases
- Berubari union case - not part, not source of substantive power
- KBC - part, light of grand and noble visions expressed in preamble
- Charan lal sahu vs uoi- valuable aid in the construction of provisions of constn, same position as other provisions
Intro and Concl preamble
Alladi krishnaswamy
Nani palkhivala- preamble is the identity card of constn.
Preamble expressss what we had thought and dreamt for so long
Secularism is not defined in constn. But from various judgement
Like KBC and bommai
- Religious tolerance and mutual fraternity
- State doesn’t discriminate
- States take positive step to ensure religious tolerance and social wellbeing, democratic values
- Secular activities
Famous case of secularism
Aruna roy vs uoi
- Essence - mutual tolerance and fraternity
- Religious pluralism is at the base of indian secularism
- Religion major source of value generation
Define constitutionalism
Political philosophy of limited govt. No uncontrolled or arbitary power in the hands of legislature or executive.
How our constn ensures constitutionalism
- Powers prescribed: 72,161- power to grant pardon
- Procedure - 61
- Limitations- 13
- Held accountable - 75, 164
Negative constitutionalism article
14 15 19 22 21 32 226
Positive constitutionalism?
Set of political values and aspirations that reflect the welfare state concept.
Ensure social well-being and common good by placing checks and balance
16
39, 41( unemployment, oldage, sickness
Concl of constitutionalism
Am bedkhar in his last constituent assembly speech - however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.
Define constitutional conventions
Rules of political practice which are regarded as binding by those whom they apply.
Grow out of practice and precedents.
Enforce - Political will/ public opinion
What are the fedral features of our constn
- Legislative - 368 and 007
- Independent judiciary
- Written constn and it’s associated supremacy
- Exec - large autonomy under ordinary times
What are unitary features of constn
- Art 1 - destructible states
- Leg- 249,250, 252,253
Repugnant in concurrent -254
. Residuary -248 - financial -360, 293(3)
- executive -200, ais
Trace the evolution of definition of state under article 12
- very narrow- ejusdem generis
- sukhdev vs bhagatram- ongc, lic
- rd shetty vs aai, ajay hasia -instrumentality or functional test
- pradeep kumar biswas vs iicb- financial and administrative dominace coupled with functionality
- janet jayapul vs srm- pvt university was held to be an instrument of state because of it’s public function ( imparting education) and since it’s function are governed by UGC ( certain degree of govt control)
- Kishor madhukhar vs automative research association ( 2022) – ara was not FOA dominated by govt and enjoyed substantive autonomy. Hence neither an agency nor an instrumentality of the govt
Give the agency test as per ajay hasia case
- capital share
- Financial aid
- Monopoly statute
- deep control
- Functions of public importance
Case laws for doctrine of severability-art 13.?? What is the test applied to see if DOS can be applied
- Rmdc vs uoi - prize competition act valid wrt retriction of gambling but not other skill based competition
- Uoi vs rajendra shah - multistate cooperatives valid
- Valid part - Severable, workable, object defunct
- Would leg enact if severable part removed
- Legislative intent
Provisions of the constn wrt judicial review
Art 13
Art 32,226
Art 245- power of parl and Sl are subject to the provisions of the constn
Explain equality before law and equal protection of law under art 14
- Equality before law :-
Conferring privilege, equal society through machinery of law, diceys rule of law- no one is above law - Equal protection of law- like alike unlike unlike, 14th amendment of USA
Only when these 2- equality of status and opportunity
Test of reasonable classification under art 14 evolutions
- Anwar ali sarkar case - twin test of intelligible difference and rational nexus
Budhan cahudhary vs state - classification amy be founded on different bases namely geograhical, occupation etc.
- Ep royappa case - justice PN BAGWATI pronounced a new concept of equality. ARBITARINES is the antithesis of equality. This was applied in the famous AIRHOSTESS CASE- retire on 1st pregnancy. Not applicable to male-
- Maneka Gandhi - 14,19, 21
- DS NAKARA Vs UOI- prefixed with reasonable- element of equality and non arbitariness
Case law for a single individual may constitute a class under art 14
Chiranjit lal chaudhary vs uoi
Govt taking over sholapur
Reasonable classification- if some special circumstances applicable to a single person. Mismanagement- affecting prod of essential goods and serious unemployment issues
Equality is a positive concept. Cannot be used to perpetuate fraud
Gurusharan singh case
Municipal comm wrong order cannot be perpetuated with the help of art 14. Just bcoz wrong order was earlier passed in the favor of some.
Lokesh ahirwar vs state (2022) - while dismissing a petition filed by a teacher seeking study leave at par with
A. article 14 is not meant to perpetuate illegality or fraud.
B. Equality cannot be claimed in illegality.
Equal pay for equal work under art 14
State of Punjab vs jagjit singh
Daily workers, casual, contact worker- equal pay as permanent employee doing the same work
No judicial review of economic policy of govt
Balco employees union vs uoi - contrary to the legal and social interest of employees
- Global tender + above reserve price , ,, therefore not arbitary
- Fix of reserve price is prerogative of govt as long as non arbitary methodology used
- Sale of public asset is reasonable
- Divestment is valid policy unless there is breach of law
Art 15(3)
State can make special provision for women and children
Ex: educational institutions for women
Gaurav jain vs UOI - Special schemes for children of sex workers
Art 15(4) . Key elements discuss
State can make special provisions for advancement of SEBC, SC/ST
Not right but discretion of the state
Sc st - 366
Who are SEBC?
balaji vs state of mysore
Limitations under 15(4)
- Backward vs more backward- indra swahney case
- Super specialty courses in medical and engineering - dr preeti sagar vs state
- Obc reservation in HEI (93 aa) - allowed - ASHOK KUMAR THAKUR vs UOI
Who are the SEBC according to balaji vs state of mysore
- Must be backward both social and educational. Not e Or s
- Caste not sole determinant
- Poverty, place of habitation and ones occupation
- Reservation under 15(4) shouldn’t nullify equality of 15(1)
Explain 16(4)
Reservation of appointment in public offices in favor of backward classes of citizens
Indra swahney
1. 16(4) is not an exception but an illustration of the classification inherent in 16(1)
2. Caste not sole criteria
3. Creamy layer obc
4. 50% celing
Article 335
The rationale for the same can be seen in RAJEEV KUMAR GUPTA vs UOI
correct societal attitude and historical neglect . Integrate, “ Agents of their own destiny “
In BK PAVITRA vs UOI - while countering the argument that reservation would impact efficiency of administration, court called it “ stereotypical assumption “. Efficiency of administration must be defined in an inclusive sense
In a recent case of AHMEDABAD MAHANAGAR PALIKA vs Kamgar union –> validity of a scheme whereby legal heirs of all retiring employees being given compassionate appointment– court struck down the scheme saying it lead to crusading and sacrifice of merit and is against constn spirit of 14, 15 and 16.
Jagdish negi case - backwardness not static. State should review from time to time
Case for single post reservation
PGIMER vs faculty association - only one post then like 100% reservation.
Chebrolu Leela Prasad case - 100% reservation for st teachers
Is 16(4) an exception or an expression of 16(1)
- Balaji case - exception
- State of Kerala vs NM Thomas - not exception. But facet of doc of equality under art 14
- Indra swahney- not exception. Independent clause
- Rajiv kumar gupta - emphatic expression.
- BK pavitra vs UOI- it’s an enunciation of the substantive equality put forth in 16(1)
Exception - facet- expression- enunciation
Reservation in promotion cases
- Indra swahney- no
- 77th, 85th - consequential seniority
- M nagaraj case - quantifiable data on - backwardness, inadequacy of representation, overall efficiency
- Jarnail singh vs uoi- no need of quantifiable data, historic disadvantage of untouchable – so no question of backwardness
- Bk pavitra vs uoi - not at odds with meritocracy, stereotypical assumption
Right to commercial advertisement under article 19
- Tata press vs MTNL - right to commercial ad
- Hamdard dawakhana vs uoi - no. Because element of trade and commerce. Not to propogate any idea - social, economic or political
- Sakal vs benet coleman
Freedom of press
Not explicit like 1st amendment of US Constitution
- Right to circulation is as essential as freedom of publication ( ramesh thappar case)
- Fix no. Of pages and area of ad ( bennet coleman case)
- Criticise ( subject to 19(2) )
- Freedom to receive information ( indian express vs uoi)
- Against pre censorship (brij bhushan case)
- Right to choose editorial board free from govt restrictions
- Freedom to report court proceedings – sahara real estate vs SEBI
- Freedom to conduct interviews ( state vs charulata and prabhadutt vs uoi)
3 caveats –> consent, stop, can’t force to answer quo.
Realising the importance of this rt supreme court has defined it as an INALIENABLE ADJUNCT to article 21 without which one cannot have a quality of life. By doing to SC has elevated the position of 19(1) (a) and the rt of press
What are the 2 case laws related to restrictions under 19(2)
- Rangarajan vs p jagjivan ram - far fetched, proximate and direct nexus with expression
- Shreya singhal vs uoi - warned against insidious form of censorship which impairs core value of 19(1) (a)
3 important cases of right to form associations under art 19(1) (c)
- State of madras vs VG row - a law which empowered the govt to declare an association invalid was held invalid
- Raghubar dayal case - recognition of association not FR
- . Periyar self respect propaganda inst vs state- rt to hold office in an association not part of FR
- AT the same time no one can be forced to be a member of any association
2 cases under freedom to carry on trade and commerce
- Mcdowell case- state can impose restrictions on liquor trade
- Bombay hawkers union case - no absolute right for hawkers on public road. But licensed sone should be given
What are the headings of prior to maneka Gandhi and after maneka Gandhi table
- Protection under art 21 ( executive or legislative action )
- Personal liberty -
- Interrelation between 14, 19, 21-
- Due process of law
- ‘Law’ in art 21 - natural justice
Mithu singh vs state of Punjab - we have gone beyond procedural fairness and have discussed fairness of law.
Wht did SC say about procedure established by law in maneka Gandhi
It is not enough to have mere prescription of some kind of procedure to adhere to art 21. The procedure must be just and fair and not arbitrary, fanciful.
The procedure must embody the principle of nj
Art 14 and 19 takes care of the substantive aspects, art 21- procedural aspect
Safeguards in Constitution wrt preventive detention
- 22(4) - if greater than 3 mnths advisory panel
- 22(5) - grounds of arrest, representation
- Ak roy vs uoi - 14,19, 21
- 32,226 - habeas corpus
Rights given to a person under preventive detention through various judgements
- Prem narayanan vs uoi - personal freedom cannot be infringed upon in an easy going way
- Keep seperated from convicts
- No treatment of punitive character ( ak roy)
- Socialise and interview with friends ( francis coralie case)
- To write and publish a book ( prabhakar vs state
2 cases where compensation was given under art 21
- Bhim singh vs uoi - mla was detained
2. Sube singh case - custodial torture
Is rendering teachers for educational survey, family planning, preparation of voters list etc against art 23 (traffic, beggar, forced labor)
No.. Bcoz it’s for public purpose (art 23(2))
DN GUPTA vs STATE OF MP
Rights provided under ART 26
- Maintain and establish
- Manage religious affairs
- Movable and immovable property
- Administer such
Nelson vs kalyanam pastorate - no right to mismanagement
Relationship between art 29 and art 30
- 29(1) and 30(1) - distinct matter. May complement each other in particular matter ( st xaviers college case)
- 29(2) and 30(1)
A. Some cases held thera minority institutions not receiving aid from govt out of purview of 29(2)
B. St stephens college case - melting pot
Which case held art 32 part of basic structure
Fertilizer corporation kamgar vs UOI
Types of tools under art 32
Habeas corpus Mandamus Prohibition Ceritori Quo warranto
Case for protection against misuse of PIL
Sp gupta vs UOI
- Personal grievances
- Private profit
- Political considerations
Procedural safeguard have been laid to prevent misuse ( gutruvayoor management commitee vs CK Rajan )
1. Mention the FR which is violated
2 proscribed letter directly written to judges
3. Pil cell
4. Before admitting application of pil court should take into consideration- credentials of the applicant, prima facile correctness of info, info shouldn’t be vague
5. Court should see that justifiable executive actions are not assailed for oblique motives
Intro and conclusion of pil
Pudr vs uoi - collaborative effort of judiciary, state and petitioner
Conclusion - Bhagwati J. , hailed as champion of PIL- PIL IS THE STRATEGIC ARM OF LEGAL AID
Features of PIL
- No limits and boundaries- from env protection to wage for labourer
- Benifit of group. Ganga- COVID
- Locus standi relaxed - any public spirited person
- Relaxed procedure.- HUSSAINARA KHATOON CASE - INDIAN Express news item
4 . 226/32 - Art 12- against state
Demerits of pil
- Tools of harrassment
- Frivolous - calcutta HC dismisses PIL against KOFEE WITH KARAN filed with the object to “ Gain publicity “
- Private grievances in the garb - fear of corporate vendetta- allocation of 4G spectrum
- Ignoring vital PIL- central vista project - labelled motivated
Structure for legal aid questions
- 39a, 14, 22(1)
- Bhagwati committee, krishna iyer committe, several cases like HUSSAINARA KHATOON
- legal services authority act 1987
Free civil and criminal, certain categories- women, children , victims of disaster etc - Statutory status to lol adalat under LSAA
civil and compundable criminal, pending or pre litigation, final no appeal - Permanent lok adalat for disputes related to public utility service
- Reality - leagal awareness ( bandhua mukhti)), volunteers, payment, implementation of law
- Wf - uk system of solicitors, community paralegals, UNODC- Liberia, university based clinical legal aid providers
Case laws of FR vs DPSP
- Chambakam dorairajan vs state - dpsp runs subsidiary
- Gokalnath vs state - FRs are sacrosanct
- 24th- 13(4) - FR can be amended by CAA
- 25th- 31C (1) - 39 b and c supremacy over 14,19,31
31 C (2) - no judicial review - KBC - 31 c (1) valid, but not the other
- 42nd CAA- All dpsp would have primacy over 14,19,31
- Minerva mills case - back to pre 42 nd aa. Balance of harmony of fr and dpsp
Most important articles wrt president
52- president is the head of the state
53- executive power of the Union is vested in the prez
74- com to aid and advise the president and prez shall act in accordance with such advice
Why prez made a mere constitutional head
Art 75(3) - com is answerable to the LS. Meaningless without giving the final authority to decide the affairs of the state
RAM JAWAYA KAPOOR - formal, constitutional head. Must act in accordance
SHAMSHER SINGH CASE- No need for the president to be personally satisfied to exercise advice of the council
Is the president bound by advise of com
- Art 74- shall bound
- Pre 42nd - nothing specific
- 42nd - no reconsideration
- 44th - can send back for reconsideration once
Can advise given by COM be questioned in court
SP gupta vs president of india - advice can’t be questioned. But materials scrutinized
- court will not go into correctness or adequacy of the material
- Only concerned with validity of the order and not what happened in inner council
Art 74(2) – protects the secrecy. But not the acts of the prez. Cannot override the basic provisions of JR, Com should justify his acts
COM is individually and collectively responsible
Collective
- Grow and sink
- Even in case of disagreemt
- 75(3)
- 78(c) - decision by min to be considered by COM
individual
- Art 77(3) - rules for allocation
- Art 75(2) - min hold office during pleasure of prez
Jda vs daulatmal- each minister individually and collectively responsible.
Discretionary power of governor - 2 articles and give some situations where he can use his discretion
- Art 163(1) - bound by aid and advise unless the situation where constn requires him to use his discretion
- Art 163(2) - the decision of the governor whether a matter falls within his discretion shall be final
- 200
- 356
- Administrator of adjoining territory
- Appoint CM
- Dossolve com
Some way forward for reducing the dicretionary issues of the governor
- Punchi comm- discretionary power to be narrowly construed, time limit to assent for bill Or reserve for president
- Appointment - isc Or seperate panel
- Strengthen fedralism- isc, rs
3 articles and 2 cases for removal of governor
156(1) - pleasure of president
156(2) - resign
156(3) - subject to 156(1) - 5 years
- Surya narain vs UOI ( No security, pp nit justiciable, not regulated by A 311)
- BP singhal vs UOI
What we’re the safeguards given to the removal of governor under BP SINGHAL VS UOI
- Constant threat of removal - subservient
- Limited JR- arbitary, malafide, capracious
- Cannot be removed - out of sync with ideology of CG or CG has lost confidence
- English doctrine of pleasure w/o limitation not applicable in indian case .
Nothing like unfettered discretion or unaccountable action
3 cases to write for ordinance making power
- RC Cooper ( satisfied - immediate action, satisfaction is justiciable on grounds of malafide)
- RK Garg vs UOI
- Dc wadhwa case - 256 ordinance - 13 years
( successive repromulgation is violation of constn, usurping the power of leg, subverting the Democratic process, fraud on constn, there must not be an ordinace raj in the country).
5 safe guards wrt OMP under RK GARG vs UOI
- Not a parallel power
- Only when both house not in session
- Time limit - 6 weeks, parl disapprpves before that
- Omp is coextensive with law making power of parl - only on those matters
- Same limitations- can’t abrogate fr
Not undemocratic - com answerable
Intro for pardoning power of prez
Sec 72 - pardon, reprieve, despite, commutation, or remission of punishment under - UNION LAW, court martial, death sentence
161- state law. But not pardon death sentence or court martial
3 cases for nature of parsoning power
- Kehar singh vs uoi (not a right, examine evidence afresh and come to a different conclusion, SC need not lay down guidelines as it’s a very wide power)
- State of haryana vs jagdish ( never intented to be used by executive as an unbridled power of repieve, though it might mitigate the sentence if punishment it doesn’t wipe out conviction)
- Devendrapal singh case ( consider all the relevant facts considered by the court, nature of crime, impact on society, incriminating and extenuating circumstances) . Not arbitarily Or unreasonably
Judicial review of pardoning power 2 cases
- Epuru sudhakar case - caste or political reasons
JR - Non application of mind, malafide, arbitary, extraneous considerations - Satpal vs state of haryana
Court invalidated remission - wrong and incomplete facts
JR ( if pp w/o consulting com, g transgressed his jurisdiction, mind, malafide, extraneous)
3 cases wrt delay in disposal of mercy petitions
- Triveniben vs state of guj ( art 21- any procedure that takes away life must be reasonable and fair, procedural fairness at every stage until last breath, inordinate delay = avoidable mental agony and suffering)
- Devinder pal singh - in case of conviction under anti terror law- long delay not ground for commutation of death sentence
- Shatrughnan singh chauhan case - crime irrelevant, suffering that comes with anticioating death everyday = torture. Death sentence= life imprisonment
Devander pal singh case was held per incuriam
- Ag periarivalan case - cabinets decision to commute death sentence is binding on governor under 161. No need to reserve for presidents consideration.
3 ingredients of art 20
20(1) - no ex post facto law
20(2) - no double jeopardy
20(3) - right against self incrimination
Art 20(1) - no ex post facto law
- Law declaring offence subsequent to commission of act
- Law enhancing penalty
Ex: dowry prohibition act 20/5/1961
- Beneficial ex post facto law- operates to modify the rigour of the previous law ( rattan lal vs state of Punjab)
- Procedure can be expost facto
- Imposing civil liablity retrospectively not barred
Art 20(2) - no double jeopardy
Nemo debet vix vexari
- 3 conditions under THOMAS DAS vs state - prosecution, punished, same offence
- Prosecution - sea customers authority, fera
Proceedings is not prosecution ( maqbool hussain case) - Punished. So appeal against aquittal by prosecution is valid
- Same offence.- sea customs act, later conspiracy to commit the act under ipc ( leo frey case)
Art 20(3) - rt against self incrimination
- Indian criminal jurisprudence
- Accused
- Against compulsion to be witness
- Against compulsion to give evidence against himself
- Involuntary administration of narco analysis ( selvi vs state)
Freedom of trade and commerce
- Art 301 freedom of TCI
- Art 302- can regulate in public interest
Surajmal roopchand - movt of grains - 303- one state in a more preferable position, can if scarcity of goods in one part
- 304- tax on imported, if alike goods are taxed in state
State of mp vs bhilalbhai - tobacco
Principles of 301 in ATIBARI TEA COMPANY Vs STATE OF ASSAM
- Assurance of freedom of inter and intra state
- TCI have widest connotation
- laws inteded to facilitate trade like compensatory tax are outside scope of 301
Socialism in indian preamble
- Added in 42nd AA
- DS NAKARA VS UOI
a. Obj of adding socialist - to make DPSPs more comprehensive and assertive
b. Purpose is to eliminate ineq of income and status + provide decent standard of living + provide security from cradle to grave ie. establishment of welfare state.
c. Indian socialism is a blend of marxian and gandhian socialism, with heavy leaning towards gandhian - Indian socialism doesn’t mean total exclusion of private enterprise but end poverty, ignorance, disease and inequality of opportunity.
- The idea of Indian socialism can be seen in progressive policies like
a. Devp of efficient PSUs and tie ups with private sector simultaneously
b. LPG reforms, state taking the role of regulator and facilitator for private business
c. Social Security measures and institutionalization of grievance redressal.
These measures have enmeshed the ideas of competitive devp and downward filtration principles of capitalism in constitutional vision of ensuring justice and substantive equality.
- In SAMATHA vs state – sc observed that model of Indian socialism envisages indv devp and social devp as complementary to each other and can go hand in hand.
- Thus, Indian approach to socialism ensures that individual and social devp have a parallel and converginv role in acheiving constn goal of an egalitarian social order.
Frame work of constn convention
- Intro
- Need
A. Prevent rigidness- idealistic perfection
B. Constitutional silence - every possible situation, deliberate silences, indispensable - Dicey- conventiins are means whereby discretionary authority of govt organ is regulated.
- Supreme court advocates on record vs UOI — CONVENTIONS once applied will become part of the constitutional law of land
Indian fedralism unique
KC wheare - the framers of the constn wanted to avoid difficulties faced by other fedral constn of USA, Canada, auz etc and therefore incorporated certain unique features in the working of constn.
- Union instead of fedration - not a result of agreement, no freedom time secede.
- Unlike American fedralism in tight mould, Indian fed- sui generis - unitary as well as fedral according to time and circumstances. Ex: war
- India has dual polity but single citizenship. America - dual. To avoid discrimination by states and ensure that citizens have same political and civil rights across the country.
- Each state of USA is free to draft it’s own constn covering matters within its competence. India - constn is a single frame which applies to center as well as states from which neither can get out and within which each must work.
- States temporary identity within article 3. But in other systems, specifically USA - states are independent and indestructible.
- Integrated and independent judiciary
Thus in practice Indian constn is quasi fedral in nature and not strictly fedral. This makes Indian fedration a union or a composite of novel types in the word of dd basu
Indian cooperative fedralism
- CF involves center and state cooperating with each other for overall devp of the nation
- Participation of states in creation and implementation of national policies
- In state of Raj vs uoi- SC quoted granville Austin wherein it was said “ Indian fedration is an example of cooperative fedralism. India has created a strong central govt, it has not made the state govt weak”
- Examples -
a. Gst council ( 246A, 279A)
b. Interstate council ( art 263 )
c. Niti ayog
d. Ndma and sdma during covid
e. 258, 258A– mutual delegation of exec power
Equality is the antithesis of arbitariness.
- In Ep royappa case justice PN BAGWATI pronounced a new concept of equality…
- Arbitariness can said to be the whims and aspirations of an absolute monarch
- Bachan singh vs state - rule of law excludes arbitariness. It’s postulate is intelligent w/o passion, reason freed from desire
- Test applied in several case - AIRHOSTESS CASE, MADRAS BAR ASSOCIATION CASE (2021) - Provision of keeping age requirement to 50 years for appointment to tribunals was held violative of art 14 as it was arbitary.
- Unlike nexus test +— no particular formula. Developed from time to time. Due to uncertainty criticized by several jurists including HM Seervai.
Formal vs substantive equality
Formal - belief that for fairness people must be treated equally all the time.
Substantial equality– not simply equal treatment of law but deals with actual impact of law.
Recognizes that treating unequals as equals only serve to widen the disparity between 2 contesting categories.
Anwar ali sarkar case - it is difficult to imagine a situation in which violation of equal protection if law will not be a violation of equality before law.
Scope of art 32
- Court has given itself wide discretion– MC mehta vs UOI– not merely writ jurisdiction. Obligation on the court to protect FR of people.
- Locus standi - pil
- Res judicata - already declared cases cannot be reagitated. However, this doctrine doesn’t apply to habeas corpus
- Laches - can bar after reasonable passage of time.
2 cases regarding avoiding misuse of pil. What are the procedural changes now made wrt PIL
SP gupta vs UOI - PIL cannot be used for
- personal gains
- pvt profit
- political consideration
Guruvayoor management commitee vs CK rajan
Court before admitting PIL has to be satisfied about
a. Credentials of applicant
b. Prima facie correctness of the info given in PIL
C . Info shouldn’t be vague and indefinite
Procedural changes that were brought about to prevent misuse
1. Specify the Fr/ legal rt violated
2. Proscribed letters being directly addressed to the judges
3. PIL cell
Conclusion for FR vs DPSP
Nani palkivala - no conflict between FR and DPSP. DPs are directory ends for the government while FRs are permissible means for achieving those ends. The conviction underlying the constn is that a honest and competent govt should be able to achieve the directory end by permissible means.
3 cases for FD
AIIMS Students union vs AIIMS - FD equally important like fundamental rights, though the former is uneforecrable. Both are prefixed with the same word “ Fundamental “
Mc mehta vs UOI - art 51 A (g) – duty of central govt to introduce compulsory teachings of envt protection in all edn institutions
51A (c) – aruna roy vs UOI – teachings about different relegions was held to be not violative of art 28 as it prmotes A(c) – harmony and spirit of common Brotherhood.
Sarkari commission recco
- Appointment of governor - consult CM, eminent in some, outside state, detached figure without intense political links, not a member of ruling party
- Removal - before 5 yrs only in rare circumstances, opportunity to explain their conduct and fair consideration to such explanation
- 356 sparingly
Punchi commn recoo
- Impeachment of gov - art 61 of prez
- Scope of discretionary powers under art 163 (2) should be narrowly construed
- Time limit to take decioon to grant assent or reserve for president
Conclusion for federalism
Why so best explained by J. MH Beg in state of Rajasthan vs UOI - extent of federalism in india is largely watered down by the means of progress and development of a country which has to be nationally integrated, politically and economically coordinated and socially, intellectually and spiritually uplifted
Gubernatorial procrastination
Intro - Telangana govt, neet bill of Tamil Nadu, Kerala university amendment bill
- 3 primary issues with art 200
- Absence of time limit
- Discretion to reserve for president against express advice of COM
- Claim that governor can kill any bill by withholding assent
- When SC considered the petition filed by Telangana government
- As mentioned in art 200, governor should return bill that they do not agree to “ as soon as possible “
- The expression “ as soon as possible “ contains significant constitutional content and must be borne in mind by constitutional authorities
- In a previous case - Purushottam nambudiri case - though timeline for governor to give assent, gov must honour the will of the legislature and act in harmony with com
4, NCRWC - timeline of 6 months
Constn silences shouldn’t give way for constn inaction
