2014

Q.15 Explain the writ of habeas corpus?

Ans The writ of habeas corpus is the legal procedure which acts as a
remedial measure for the person who is illegally detained. The term
habeas corpus is the Latin word which means to bring or present the
body before the court. It is the most important right available to the
person detained unlawfully. The basic purpose for which this writ is
used is to release a person from unlawful detention or imprisonment.
This writ is of great importance as it determines a person his right to
freedom and personal liberty.

Example

A has been taken into custody by B a police officer without a warrant.

All the efforts made by A’s family to know the whereabouts of A
turned out to be futile. As he was detained wrongfully by B (police
officer), the writ of habeas corpus can be filed in court by A’s family
on his behalf.

Nature of the writ of habeas corpus

The concept of habeas corpus can be traced way back in the thirteenth
century. The writ of Habeas corpus cum causa is an order calling
upon the person who has detained another person, to present the
person in the court and justify his actions that on what grounds and
under what authority he has confined that person. If the court doesn’t
find any legal justifications for the cause, then it will order for the
immediate release of the person confined or imprisoned.

Who may apply for the writ of habeas corpus

To answer this question the courts have made this clear in various
cases that the person who may apply for the writ of habeas corpus
should be

>The person confined or detained illegally.

>The person who is aware of the benefit of the case.

>The person who is familiar with the facts and circumstances of the
case and willingly files an application of the writ of habeas corpus
under article 32 and 226 of the Indian constitution.

When the writ of habeas corpus is refused

The following conditions when the writ of habeas corpus is refused

are as follows:

>When the court doesn’t have the territorial jurisdiction over the
detainer.

>When the detention of a person is connected with the order of the

court.

>When the person detained is already set free.

>When the confinement has been legitimized by the removal of the

defects.
>The writ of habeas corpus will not be available during an
emergency.

.When the competent court dismisses the petition on the grounds of

merits.

Q.16 Discuss the power of president to grant pardons?

ANS Pardoning Power of the President in India:

Under Article 72 of the Constitution, the President shall have the
power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any
person convicted of any offence where the sentence is a sentence of
death.

Limitation:

The President cannot exercise his power of pardon independent of the

government.
In several cases, the Supreme Court (SC) has ruled that the President
has to act on the advice of the Council of Ministers while deciding
mercy pleas. These include Maru Ram vs Union of India in 1980, and
Dhananjoy Chatterjee vs State of West Bengal in 1994.

Procedure:

Rashtrapati Bhawan forwards the mercy plea to the Home Ministry,

seeking the Cabinet’s advice.
The Ministry in turn forwards this to the concerned state government;
based on the reply, it formulates its advice on behalf of the Council of
Ministers.

Reconsideration:

Although the President is bound by the Cabinet’s advice, Article74

(1) empowers him to return it for reconsideration once. If the Council
of Ministers decides against any change, the President has no option
but to accept it.

Court Martial: The power of the President to grant pardon extends in

cases where the punishment or sentence is by a Court Martial but
Article 161 does not provide any such power to the Governor.

Death sentence: The President can grant pardon in all cases where
the sentence given is the sentence of death but the pardoning power of
the Governor does not extend to death sentence cases.

Q.17 EASSY ON JUDICIAL REVIEW?

ANS (I) Judicial Review: Meaning and Definition:

Judicial Review refers to the power of the judiciary to interpret the

constitution and to declare any such law or order of the legislature and
executive void, if it finds them in conflict the Constitution of India.

Judicial Review is the power of the Judiciary by which:

(i) The court reviews the laws and rules of the legislature and
executive in cases that come before them; in litigation cases.

(ii) The court determines the constitutional validity of the laws and
rules of the government.

(iii) The court rejects that law or any of its part which is found to be
unconstitutional or against the Constitution.

(II) Features of Judicial Review in India:

1. Judicial Review Power is used by both the Supreme Court and

High Courts:

Both the Supreme Court and High Courts exercise the power of
Judicial Review. But the final power to determine the constitutional
validity of any law is in the hands of the Supreme Court of India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State

laws, the orders and ordinances of the executives and constitutional
amendments.

3. A Limitations:

Judicial Review cannot be conducted in respect of the laws

incorporated in the 9th Schedule of the Constitution.

4. It covers laws and not political issues:

Judicial Review applies only to the questions of law. It cannot be
exercised in respect of political issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its
own. It can use it only when any law or rule is specifically challenged
before it or when during the course of hearing a case the validity of
any law is challenged before it

Q.18 Explain the doctrine of colourable legislation?

ANS COLOURABLE LEGISLATION IN INDIA:-

In India ‘Doctrine of Colorable Legislation’ signifies only a limitation

of the law-making power of the legislature. It comes to know while
the legislature purporting to act within its power but in reality, it has
transgressed those powers.

The doctrine of Colorable Legislation becomes applicable whenever

legislation seeks to do in an indirect manner what it cannot do
directly.

In India, legislative powers of parliament and the state legislatures are

conferred by Article 246 and distributed by List I, II, and III, in the
seventh schedule of the Indian Constitution. The parliament have the
power to make laws respect to any of the matters of the List II and the
parliament and the state legislatures both have the power to make
laws with respect to any of the matters of the List III and the residuary
power of legislation is vested in the Parliament by virtue of Article
248, and List I.

For making any law or of that law’s validity legislative competency is

an issue that relates to how legislative powers must be shared between
the centre and the state or it focuses only on the relationships between
both of them. The main point is that the legislature having restrictive
power cannot step over the field of competency. It is termed as the
“fraud on the Constitution”.

The whole Doctrine is based upon the maxim that “you cannot do
what you cannot do directly”. “Colorable legislation” is thus bound up
with incompetency and not tainted with bad faith or evil motive. A
thing is colorable which in appearance only and not only in reality,
what it purports to be.

The Supreme Court of India in different judicial pronouncement has

laid down the certain tests in order to determine the true nature of the
legislation impeached as colorable:-

The court must look to the substance of the impugned law, as

distinguished from its form or the label which the legislature has
given it. For the purpose of determining the substance of the
impugned law, the court will examine two things, i.e. effect of the
legislature and the object and purpose of the act.
The Doctrine of Colorable Legislation has nothing to do with the
motive of the legislation, it is in the essence a question of vires or
power of the legislature to enact the law in question.

The doctrine does not involve any question of bona fides or mala
fides intention on the part of legislature. If the legislature is competent
enough to enact a particular law, then whatever motive which
impelled it to act are irrelevant.

LIMITATIONS ON THE APPLICATION OF DOCTRINE OF

COLORABLE LEGISLATION:-

>The Doctrine has no application where the powers of a legislature

are not fettered by any Constitutional limitation.

>The Doctrine is also not applicable to Subordinate Legislation.

>When a legislature has the power to make law with respect to a

particular subject, it also has all the ancillary and incidental power to
make that law an effective one.

>The transgression of constitutional power by legislature may be

patent, manifest or direct, but may also disguised, covert and indirect
and it is only to this latter class of cases that the expression “colorable
Legislation” is being applied.
 2015

Q.15 Discuss the legislature relation between union and the state
and also discuss the principal of interpreation of lists?

ANS Legislative Relations

Articles 245 to 255 in Part XI deals with different aspects of

legislative relations between centre and states. These include:

(1) Territorial jurisdiction of laws made by the Parliament and by the

Legislatures of States.

(2) Distribution of legislative subjects

(3) Power of parliament to legislate with respect to a matter in the

State List

(4) Centre's control state legislation

However, Seventh Schedule of the Constitution provides for the

distribution of legislative powers between the centre and the states.
The legislative subjects are divided into List I (the Union List), List II
(the Concurrent List) and List III (the State List).

At present, there are 100 subjects in the Union list which includes
subjects such as foreign affairs, defence, railway, postal services,
banking, atomic energy, communication, currency etc.
At present, there are 61 subjects in the State list. The list includes
subjects such as police, public order, roadways, health, agriculture,
local government, drinking water facilities, sanitation etc.

At present, there are 52 subjects in the concurrent list. The list

includes subjects such as education, forests, protection of wild
animals and birds, electricity, labour welfare, criminal law and
procedure, civil procedure, population control and family planning,
drugs etc.

Article 245 empowers the centre to give directions to the states in

certain cases in regards to the exercise of their executive powers.

Article 249 empowers the parliament to legislate with respect to a

matter in the State List in the national interest.

Under Article 250, the parliament becomes empowered to make laws

on the matters related to state list when national emergency (under
Article 352) is in operation.

Under Article 252, the parliament is empowered to legislate for two

or more States by their consent.

Principles of Interpretation of Lists

The distribution of subject-matters cannot be claimed to be

scientifically perfect and there happens to be overlapping between the
subjects enumerated in the three lists. Whether a particular subject
falls in the sphere of one or other government (i.e. Union or State),
the Supreme Court has evolved following principles to determine
respective powers of Union and State Legislatures.

Q.16 Why was right to property changed from being a

fundamental right to a constitutional right ?

ANS What is Property?

The word property interpreted by SC for Art. 31 has said, should be

given a liberal meaning and should be extended to all those well-
recognized types of interest which have the insignia or characteristic
of property right[1]. The expression property in Article 300A is
confined not only to land alone. It includes both corporal and
incorporeal rights [2]. It includes Money[3], contract, interest in the
property, etc.

Right to Property as a fundamental right

Since the Constitution of India came into force in the 1950s, the right
to property was given fundamental status. Basically, two articles Art.
31 and Art. 19(1)(f) ensures that any person’s right against his
property remains protected.

Art. 31 clause (1) No person shall be deprived of his property save

by authority of law. It gives protection to persons against the
government or State’s arbitrary action to seize private property for
public use and private use. That means a person has right to move to
SC in case of violation of this right. At this juncture it is essential to
understand the power of Eminent Domain- every government has an
inherent right to take and appropriate the private property belonging
to an individual citizen for public use[4]. It is based on the legal
maxim Salus Populi est suprema lex meaning the welfare of people or
the public is the paramount law.

Why the 44th amendment act was made?

In order to understand why such a step was taken by the Parliament of

India, it is necessary to understand that before India get its
independence there were four major systems prevailing – the
Ryotwari system, Mahalwari system, Zamindari system, and Jagidari
system. Due to these large parts of land was in possession of
zamindars, tenants, and like people, which causes an unequal
distribution of land and increases the gap between rich and poor.

Present Legal Status of Right to Property

By 44th Amendment Act 1978 of the Constitution of India, a new

article namely 300A was inserted and titled as Right to Property. It
read as:

No person shall be deprived of his property save by authority of law.

This article provides restrictions on the State that it cannot take
anybody’s property without the force of law also interpreted can be
deprived of the force of law. The word ‘law’ here means a validly
enacted law which is just, fair, and reasonable.
Right to own Private Property is a Human Right

In the recent judgment of Vidhya Devi v. The State of Himachal

Pradesh & Ors.[9], it was held by SC that the Right to own Private
Property is a human right and cannot be denied. The party depriving
one’s right to property must have the authority of law. In this case, the
plaintiff was given compensation for the wrong acquisition of
property by the state.

Conclusion

Due to the excessive possession of land by the zamindars and tenants,

the legal status of the Right to freedom was changed from a
fundamental right to a constitutional right in order to avoid the
situation of misusing of right to property as a fundamental right by
zamindars and another landowner against state measures to acquire
land and to implement land ceiling laws in India. Still, this right is
available to all persons as a constitutional right and can invoke the
jurisdiction in high court u/A 226 of the Constitution of India.

Q.17 Explain the constituional provision regarding the power of

judicial review ?

ANS Judicial Review:

It is a type of court proceeding in which a judge reviews the

lawfulness of a decision or action made by a public body.
In other words, judicial reviews are a challenge to the way in which a
decision has been made, rather than the rights and wrongs of the
conclusion reached.

CONCEPT OF LAW

>Procedure Established by Law: It means that a law enacted by the

legislature or the concerned body is valid only if the correct procedure
has been followed to the letter.

>Due Process of Law: It is a doctrine that not only checks if there is

a law to deprive the life and personal liberty of a person but also
ensures that the law is made fair and just.

>India follows Procedure Established by Law.

It is the power exerted by the courts of a country to examine the

actions of the legislatures, executive and administrative arms of
government and to ensure that such actions conform to the provisions
of the nation’s Constitution.

Judicial review has two important functions, like, of legitimizing

government action and the protection of constitution against any
undue encroachment by the government.

Importance of Judicial Review

It is essential for maintaining the supremacy of the Constitution.

It is essential for checking the possible misuse of power by the

legislature and executive.
It protects the rights of the people.

It maintains the federal balance.

It is essential for securing the independence of the judiciary.

It prevents tyranny of executives.

Problems with Judicial Review:

It limits the functioning of the government.

It violates the limit of power set to be exercised by the

constitution when it overrides any existing law.
In India, a separation of functions rather than of powers is followed.

The concept of separation of powers is not adhered to strictly.

However, a system of checks and balances have been put in place in
such a manner that the judiciary has the power to strike down
any unconstitutional laws passed by the legislature.

Q.18 Critically analysize the power and position of the president

of india?

ANS Executive Functions

1. Head of the Union: The President is at the head of the Union

Executive. Consequently, all executive powers are exercised in his
name. The executive power of the Union to be exercised by the
President is extended to the matters with respect to which Parliament
has power to make laws and to conclude treaty and agreement.

2. Appointments: As head of the executive, the President appoints

the Governors of States, the Judges of the Supreme Court and the
High Courts, the Auditor General of India and many other high
officials, such as the members of Finance Commission, Election
commission, Union Public commission etc.

3. Appointment of the Prime Minister and other Ministers: The

President also appoints the Prime Minister and with his advice the
other Ministers of the Union Council of Ministers. But here too, as in
all other appointments, the President can seldom use his discretion.
He is, ordinarily, duty-bound to summon the leader of the political
party which secures an absolute majority in the Lok Sabha to become
the Prime Minister and form the Ministry. He does enjoy some
discretionary powers in the matter only under exceptional
circumstances. When no single political party wins a clear absolute
majority and, as a result, no Council of Ministers can be formed
without a coalition of parties the President can exercise his discretion
judiciously in appointing the Prime Minister. Such situations
developed in the past.

Legislative Powers and Functions

1. President is a part of Parliament: The Union Legislature or

Parliament consists of the President and two Houses of Parliament.
The President is, therefore, an integral part of Union Legislature. He
shall summon from time to time, either separately or jointly, the
Houses of Parliament. The President can prorogue the Houses or
either House of Parliament and, if necessary, can dissolve the lower
Chamber of Parliament, the Lok Sabha. For example, the President
solved the twelfth Lok Sabha in early 1999 when the confidence
motion in favour your of the Vajpayee government was lost in the
Lok Sabha.

Financial Powers and Functions

The President of India also exercises financial powers. No money bill

can be introduced in Parliament without the recommendations of the
President. According to the Constitution of India, the Annual
Financial Statement is placed by the President before both the Houses
of Parliament. This statement shows the estimates of revenue and
expenditure of the central Government for the next year. It may be
pointed out that the proposal for taxation and expenditure cannot be
made without the approval of the President. . No proposal for
spending money or raising revenues for purposes of government can
be introduced in Parliament without previous permission of the
President.

Emergency Powers of the President

1. The constitution of India empowers the President to proclaim three

kinds of Emergencies: National Emergency (Art. 352);
2. Emergency for failure of Constitutional Machinery in a State (Art.
356);

3. Financial Emergency (Art. 360)

Military powers

The President is the Supreme Commander of the Indian Armed

Forces. The President can declare war or conclude peace,[20] on the
advice of the Union Council of Ministers headed by the Prime
Minister. All important treaties and contracts are made in the
President's name.[25] He also appoints the chiefs of the service
branches of the armed forces.

Pardoning Powers / Judicial Powers

The President of India grants, pardons, reprieves or remissions of

punishment to any person who has been convicted by a Court of Law.
As mentioned in Article 72 of the Indian Constitution, the President is
empowered with the powers to grant pardons in the following
situations
 2016

Q.15 Provision of the constitutional relating to council of minister

to advice the prisedent in the exercise of his function and power?

ANS Article 74 of Constitution of India "Council of Ministers to

aid and advise President"

(1) There shall be a Council of Ministers with the Prime Minister at

the head to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice:

Provided that the President may require the council of Ministers to

reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after such
reconsideration.

(2) The question whether any, and if so what, advice was tendered by
Ministers to the President shall not be inquired into in any court.

Powers and Functions of the Council of Ministers:

(i) Formulation of Policies:

The Ministers formulate the policies of the government. The Cabinet

takes decisions on all major problems—public health, relief to the
disabled and unemployed, prevention of plant diseases, water storage,
land tenures and production, supply and distribution of goods.
(ii) Administration and Maintenance of Public Order:

The executive power is to be exercised in such a way as to ensure

compliance with State laws. The Constitution empowers the Governor
to make -rules for the more convenient transaction of the business of
the Government. All such rules are made on the advice of the Council
of Ministers.

(iii) Appointments:

The Governor has the power to appoint the Advocate-General and the
Members of the State Public Service Commission. The Governor
cannot make these appointments at his will. He must exercise these
functions on the advice of his ministers.

(iv) Guiding the Legislature:

Most of the Bills passed by the Legislature are Government Bills,

prepared in the ministries. They are introduced, explained and
defended in the State Legislature by the Ministers. The Cabinet
prepares the Governor’s Address in which it sets forth its legislative
programme at the commencement of the first session of the
Legislature each year.

(v) Execution of Central Laws and Decisions of the Union

Government:

The Union Government is empowered to give directions to the State-

governments in certain matters. The States should exercise their
executive power so as to ensure compliance with the laws made by
Parliament. They should not do anything which would hamper the
executive power of the Union.

Q.16 Describe the constituional protection available to civil

servant under section 311 of constitution?

ANS The Civil servants have not only been provided with
Constitutional status under Article 308 but they have also been
granted some protection under Article 311. By providing the civil
servants with these protections, the confidence of the public in the
civil services is maintained and the civil servants are also provided
with the assurance that they can honestly carry out their duties
without any fear of unjust or unlawful removal from their office under
this doctrine.

The following are the protections available to a civil servant

under Article 311 of the Constitution:

1. No dismissal by subordinate authority

Under Clause 1 of Article 311, a civil servant can only be removed

from his services by the authority who had appointed him or some
other person who has the same authority or rank as the appointing
authority. So, any person who is subordinate in authority to the
appointing authority, cannot remove a civil servant and in case he
does remove him, the removal will not be valid.
2. The reasonable opportunity of being heard

Under Clause 2 of Article 311, the civil servants are provided with the
right of being heard. This right embodies the principle of natural
justice by giving a chance to the civil servant to prove his innocence.

Who has the right to these protections?

While these protections are provided to the people working for the
Government, all the Government servants cannot avail of these
protections. Thus, only certain people have the right to be protected
under the provisions of Article 311.

The members of:

>Civil service of the Union;

>All India Service; and

>Civil service of any State.

>People who hold a civil post under the Union or any State.

By the words civil services it has been made clear that the members of
the Armed Forces are not part of the servants who are covered under
the provisions in the Constitution, related to Civil Servants. In the
case of Purshottam Lal Dhingra v. Union of India, it was held that the
protection provided under Article 311 to the civil servants includes
permanently employed civil servants as well as temporarily employed
civil servants.
Q.17 State the power of parliament to legislate on sate list ?

ANS According to Article 249 if the Rajya Sabha passes a resolution

relating to a matter of national interest with a two-third majority.
Such resolution empowers the Parliament to legislate with respect to
any matter in the State List, then it shall be lawful for the Parliament
to legislate. Such legislation can extend to the whole or any part of the
Indian territory until the legislation operates.

Such a resolution normally lasts for a year and maybe renewed upon
the necessity but such extension cannot exceed a year.

These Parliamentary laws, however, shall cease to operate after the

expiration of 6 months, following the cessation of the resolution.

Thus, the Parliament is competent to legislate on any law which is

based on a resolution passed by a majority in the Upper House of the
Parliament, if such resolution contains any matter of national
importance. However, such a resolution can last for a year and can be
extended for a period at a maximum of one year.

If a Proclamation of Emergency is in operation

According to Article 250; during the operation of the Proclamation

of Emergency, the Parliament shall be empowered to legislate for the
entire Indian territory or any of its parts with respect to all the matters
enumerated in the State List.

However, such law shall come to cessation on the expiration of 6

months following the cessation of the Proclamation of Emergency.
During Emergency, the Parliament has the power to make any law
which shall be applicable over the entire or any part of India, and such
law shall be applicable for only a year after the emergency is
withdrawn.

Q.18 Discuss the procedure of impeachment of the president of

india?

ANS ARTICLE 61 : PROCEDURE FOR IMPEACHMENT OF

THE PRESIDENT

(1) When a President is to be impeached for violation of the

Constitution, the charge shall be preferred by either House of
Parliament.

(2) No such charge shall be preferred unless –

(a) the proposal to prefer such charge is contained in a resolution

which has been moved after at least fourteen days’ notice in writing
signed by not less than one-fourth of the total number of members of
the House has been given of their intention to move the resolution,
and

(b) such resolution has been passed by a majority of not less than two-
thirds of the total membership of the House.

(3) When a charge has been so preferred by either House of

Parliament, the other House shall investigate the charge or cause the
charge to be investigated and the President shall have the right to
appear and to be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a
majority of not less than two-thirds of the total membership of the
House by which the charge was investigated or caused to be
investigated, declaring that the charge preferred against the President
has been sustained, such resolution shall have the effect of removing
the President from his office as from the date on which the resolution
is so passed.
 2017

Q.15 What do you mean by the basic structure expalin in deatil

with case law?

ANS The doctrine of basic structure is nothing but a judicial

innovation to ensure that the power of amendment is not misused by
Parliament. The idea is that the basic features of the Constitution of
India should not be altered to an extent that the identity of the
Constitution is lost in the process.

Indian Constitution upholds certain principles which are the

governing rules for the Parliament, any amendment cannot change
these principles and this is what the doctrine of basic structure
upholds. The doctrine as we have today was not present always but
over the years it has been propounded and upheld by the judicial
officers of this country.

In this article, we would dwell in detail on the evolution of the

doctrine of basic structure and what are the features of the
Constitution of India that have been regarded as part of the basic
structure by the hon’ble courts.

Evolution of the Basic Structure:

The word “Basic Structure” is not mentioned in the constitution of

India. The concept developed gradually with the interference of the
judiciary from time to time to protect the basic rights of the people
and the ideals and the philosophy of the constitution.
The First Constitution Amendment Act, 1951 was challenged in the
Shankari Prasad vs. Union of India case. The amendment was
challenged on the ground that it violates the Part-III of the
constitution and therefore, should be considered invalid. The Supreme
Court held that the Parliament, under Article 368, has the power to
amend any part of the constitution including fundamental rights.

Significance of basic structure:

>The basic doctrine saved the Indian democracy as it acts as a

limitation of constituent power or else unlimited power of parliament
might have turned India into a totalitarian

>It helps us to retain the basic tenets of our constitution so

meticulously framed by the founding fathers of our Constitution.

>It certainly saved Indian democracy from degenerating into

authoritarian regime.

>It strengthens our democracy by delineating a true separation of

power where Judiciary is independent of other two organs. It has also
given immense untold unbridled power to Supreme Court and made it
the most powerful court in the world

>By restraining the amending powers of legislative organ of State, it

provided basic Rights to Citizens which no organ of State can
overrule.

>Being dynamic in nature, it is more progressive and open to changes

in time unlike the rigid nature of earlier judgements.
Q.16 In the scheme of distribution of legislative power under the
const. of india one finds central dominance.point out in detail five
area of dominance.

ANS The scheme of distribution in India (articles 245-246)

(a) The constitutional provisions in India on the subject of distribution

of legislative powers between the Union and the States are spread out
over several articles (articles 245-254). However, the most important
of those provisions the basic one – is that contained in articles 245-
246.

Article 245 provides, inter alia, that (subject to the provisions of

the Constitution).

(i) Parliament may make laws for the whole or any part of the
territory of India and

(ii) the legislature of a State may make laws for the whole or any part
of the State.

(b) Thus, article 245 sets out the limits of the legislative powers of the
Union and the States from the geographical (or territorial) angle.
From the point of view of the subject matter of legislation, it is article
246 which is important. Article 246 reads as under:

246(1) Notwithstanding anything in clauses (2) and (3), Parliament

has exclusive power to make laws with respect to any of the matters
enumerated in List 1 of the Seventh Schedule (in this Constitution,
referred to as the “Union List”).

(2) Notwithstanding anything in clause (3), Parliament, and subject to

clause (1), the Legislature of any State also, shall have power to make
laws with respect to any of the matters enumerated in List III in the
Seventh Schedule (in this Constitution, referred to as the “Concurrent
List”).

(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with
respect to any of the matters enumerated in List II in the Seventh
Schedule (in this Constitution, referred to as the “State List”).

(4) Parliament has power to make laws with respect to any matter for
any part of the territory of India not included in a State,
notwithstanding that such matter is a matter enumerated in the State
List”.

Q.17 Discuss in detail the position of NJAC in regard to

appointment of judge of higher judiciary in india in the light of
recent SC judgement

Ans The National Judicial Appointments Commission Act, 2014

("NJAC Act") has been notified in the official gazette on the 13th of
April, 2014. The Judicial appointment mechanism provided for in
these Acts has become a subject of controversy raising fresh
concerns about judicial independence and accountability.
Article 124A has been introduced in the Constitution of India, which
provides for the National Judicial Appointments Commission
(Hereinafter called "the NJAC") consisting of the Chief Justice of
India, two other senior Judges of the Supreme Court, the Union
Minister of Law & Justice and two eminent persons nominated by a
committee consisting of the Prime Minister, the Chief Justice of India
and the Leader of the Opposition in the House of People, and if no
such Leader is there then the Leader of the single largest Opposition
Party in the Lok Sabha.

The NJAC Act regulates the procedure to be followed by the NJAC

for recommending persons to be appointed as judges of the Supreme
Court and the High Courts, along with their transfers. The
recommendation for appointment of Judges has to be made on the
basis of seniority, ability, merit and any other criteria of suitability as
may be specified by regulations of the NJAC11. Based on these
recommendations, the President has to make the appointment.

The constitutionality of the NJAC Act and the 121st constitutional

amendment is a subject of concern. The NJAC Act and the
amendment leave the power of judicial appointments, in the hands of
the executive almost in its entirety. Judicial appointments have always
been associated with the independence of Judiciary, which has time
and again been recognized to be part of the basic structure of the
Constitution.
Q.18 Write a detailed note on the ordinance making power of
president?

Ans Article 123 of the Indian Constitution grants the President of

India certain Law making powers i.e. to Promulgate Ordinances when
either of the two Houses of the Parliament is not in session which
makes it impossible for a single House to pass and enact a law.
Ordinances may relate to any subject that the parliament has the

power to make law, and would be having same limitations. Thus, the
following limitations exist:-

When legislature is not in session: the President can only

promulgate when either of the House of Parliament is not in session.

Immediate action is needed: the President though has the power of

promulgating the ordinances but same cannot be done unless he is
satisfied that there are circumstances that require him to take
immediate action.

Parliament should approve: after the ordinance has been passed it is

required to be approved by the parliament within six weeks of
reassembling. The same will cease to operate if disapproved by either
House.

The President may withdraw an ordinance at any time. However he

exercises his power with the consent of the Council of Ministers
headed by the President. The Ordinances may have retrospective
effect and may modify or repeal any act of parliament or other
ordinances. It may be used to amend a tax law but it can never amend
the Constitution.

Ordinances were included in the Constitution of India from

Government of India Act, 1935

There are the following limitations:

1. President can promulgate an ordinance only when both the houses

are not in session or only one house is in session.

2. For an ordinance to be promulgated, such circumstances should be

there which deem it necessary for President to legislate through the
ordinance
 2018

Q.15 what are centre powers over the state emergency?

ANS Under Article 352 the President of India has the power to
proclaim a national emergency. There are 3 grounds under which the
emergency can be enforced. But only if the President is satisfied that
the reason for emergency falls under those grounds and there
indeed is a national security issue. The three grounds are:

1. War

2. External Aggression

3. Armed Rebellion (substituted with “Internal Disturbances”

by forty-fourth Amendment Constitution Amendment Act,
1978).

Reasons for President Rule or State Emergency

Under Article 356 the President has the power to proclaim state
emergency on receiving a request or report from the Governor of
that particular state stating the situation of that state is such that it
is impossible to discharge constitutional liabilities of the State
Government. For that purpose, the State Government is suspended
and the President’s rule is imposed.

Procedural Aspect of Article 356

It has already been said that the emergency could be proclaimed by
the President by receiving a report from the Governor of a state
reporting inability of state government machinery to handle the
situation. Clause 2 of Article 356 says that such proclamation can
be revoked by a subsequent proclamation. As for the validity and
enforcement of proclamation of emergency, such proclamation
under Clause 3 of the Article has to be produced before both the
houses of the Parliament. The proclamation will cease to exist after
two months of proclamation unless it is approved and passed by
both the houses of the Parliament.

1. President’s Satisfaction of Failure of State Mechanism

The court reviewed Clause 1 of Article 356 that talked about

satisfaction of the President upon receiving the report from the
governor reporting inability of the State Government to carry out
its constitutional responsibilities. The court said that the President
must be satisfied with such an emergent situation from the report of
the Governor nor otherwise that the situation is grave and need
emergent actions. The Court termed that satisfaction must be based
on ‘objective material’. For that purpose, objective material
includes the report from the Governor or the situation evident.
Also, the objective material shall result in the inability of the State
Government to work in that state which the President has to be
satisfied before the proclamation of emergency. If the objective
material is present then the proclamation can be lawfully executed
but if such material does not exist the proclamation can be
subjected to challenge in court. Application of these conditions
indicates the extent and limitation of judicial review on such
proclamation.

2. The obligation of the President to proclaim Emergency

Although the term used in Clause 1 is “if the president is….

satisfied”, the court reviewed this autonomy of the President to be
subjective on this matter of proclamation. Clause 1 of Article 74
makes it compulsory for the President to abide by the advice of the
Council of Ministers headed by the Prime Minister. This was the
President following the will of the Council of Minister and has
little say of his own. Also, clause 1 of Article 356 states a situation
in which the State Government cannot abide by the Constitutional
provisions on that point question raises whether incompetency to
follow any provision of the Constitution would mean the failure of
State Government. Answering this question, the court stated that it
is not possible to devise a tool to check the graveness of the
situation. But we have no choice to believe that the Governor when
in their Oath promised to preserve, protect and defend the
constitution to the best of his abilities.
Q.16 Explain the doctrine of colourbale legisaltion

ANS DONE BACKSIDE

Q.17 Provision related to appointment ,removal and transfer of

judges of h.c and s.c with help of case law.

ANS HIGH COURT

APPOINTMENT

article 124 (2) which governs the appointment of Supreme Court

judge states that “every judge of the Supreme Court shall be
appointed by the president by warrant under his hand and seal after
consultation with such of the judges of the Supreme Court and of
High Court in the states as the President may deem necessary for the
purpose”.

Provided that in the case of appointment of a judge other than the

Chief Justice, the Chief Justice of India shall be consulted.

Removal

judge of the Supreme Court can be removed from his office by an

order of the President. The President can issue the removal order only
after an address by Parliament has been presented to him in the same
session for such removal.

The address must be supported by a special majority of each House of

Parliament (ie, a majority of the total membership of that House and a
majority of not less than two-thirds of the members of that House
present and voting). The grounds of removal are two—proved
misbehaviour or incapacity.

Transfer

Article 222 of the Constitution makes provision for the transfer of

a Judge (including Chief Justice) from one High Court to any other
High

Court. The initiation of the proposal for the transfer of a Judge should

be made by the Chief Justice of India whose opinion in this regard is

determinative. Consent of a Judge for his first or subsequent transfer

would not be required. All transfers are to be made in public interest

i.e.

for promoting better administration of justice throughout the country.

High court

Article 217 of the Constitution: It states that the Judge of a High

Court shall be appointed by the President in consultation with the
Chief Justice of India (CJI), the Governor of the State.

In the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of the High Court is consulted.

Removal
A Judge of the High Court can be removed from office only for
proven misbehaviour or incapacity and only in the same manner in
which a Judge of the Supreme Court is removed. The President of
India can remove a Judge of the High Court, from his office only if
each house of the parliament passes a resolution by a two third
majority of its members present and voting in each house requesting
him to remove the judge.
Transfer
Article 222 of the Constitution makes provision for the transfer of a
Judge (including Chief Justice) from one High Court to any other
High Court.
The initiation of the proposal for the transfer of a Judge should be
made by the Chief Justice of India(CJI).
 2019
Q.1 Name the sailent feature of article 356 of india const?
Ans president power(Article 356 of the Constitution of India
empowers the President to withdraw from the Union the executive
and legislative powers of any state)
Q.2 Power of the president to consult sc explain?
Ans Power of President to consult Supreme Court.— (1) If at any
time it appears to the President that a question of law or fact has
arisen, or is likely to arise, which is of such a nature and of such
public importance that it is expedient to obtain the opinion of the
Supreme Court upon it, he may refer the question to that Court for
consideration and the Court may, after such hearing as it thinks fit,
report to the President its opinion thereon.

Q.3 Principal laid down the in S.P GUPTA v UOI,AIR 1982

S.C1991 EXPALIN?
ANS

Q.4 What is the limitation on total number of minister in council

of minister?
ANS The total number of Ministers, including the Prime Minister, in
the Council of Ministers shall not exceed fifteen per cent.
Q.5 Expalin,power of the president to grant pardon?
ANS Under Article 72 of the Constitution, the President shall have
the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any
person convicted of any offence where the sentence is a sentence of
death.
Q.6 Who can appoint the prime minister and other minister ?
Ans Article 75 in The Constitution Of India 1949
The Prime Minister shall be appointed by the President and the other
Ministers shall be appointed by the President on the advice of the
Prime Minister.
Q.7 Explain the statues of right to property in const.of india ?
Ans Right to Property ceased to be a fundamental right with the
44th Constitution Amendment in 1978. It was made a Constitutional
right under Article 300A. Article 300A requires the state to follow
due procedure and authority of law to deprive a person of his or her
private property.
Q.8 Doctrine of collective responsibility .explain?
Ans the doctrine of collective responsibility of the Union Executive to
the House of the People and of the State Executive to the Legislative
Assembly is specifically enshrined in the Constitution. Article 75(3)
lays down that the Council of Ministers shall be collectively
responsible to the Lok Sabha.
Q.9 Which provision of constituion talks about to punish for
contempt of s.c?
ANS Article 129 in The Constitution Of India 1949
129. Supreme Court to be a court of record The Supreme Court shall
be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
Q.10 Subject to defence of india is a part of which list of const?
ANS SEVENTH SCHEDULE
(Article 246)
List I—Union List

PART B
Q.11 Expalin residuary power of legislation?
ANS Article 248 in The Constitution Of India 1949
248. Residuary powers of legislation
(1) Parliament has exclusive power to make any law with respect to
any matter not enumerated in the Concurrent List or State List
(2) Such power shall include the power of making any law imposing a
tax not mentioned in either of those Lists.

Q.12 What are the effect of finacial emergency ?

ANS During the financial emergency, the executive authority of the
Center expands and it can give financial orders to any state according
to its own.
2. All money bills or other financial bills, that come up for the
President's consideration after being passed by the state legislature,
can be reserved.
3. The President may issue directions for the reduction of salaries and
allowances of;
(i) All or any class of persons serving the Union and
(ii) The judges of the Supreme Court and the High Court.

Q.13 Expalin theory of territorial nexus?

ANS According to Article 245 of the Indian constitution –
“Extent of laws made by Parliament and by the Legislatures of States-
1) Subject to the provisions of this Constitution, Parliament may make
laws for the whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or any part of the
State
2) No law made by Parliament shall be deemed to be invalid on the
ground that it would have extra territorial operation
The legislative powers of the parliament as well as the legislatures of
the state are subject to provisions of the constitution, that is – the
scheme of the distribution of powers, the fundamental rights and other
provisions of the constitution.
Q.14 Explain doctrine of pith and substance ?
ANS It arises when there is a conflict between two or different subject
matters of different list.
There can be circumstances in which subject matter of list 1 clashes
with the subject matter of list 2. Hence, this doctrine is applied in this
kind of situation.
The main reason behind the adoption of this doctrine of pith and
substance is that the powers of the legislature would be severely
limited if every law were to be declared invalid on the ground that it
infringes power.
According to this doctrine, it is examined to check its“true nature and
character” in order to ascertain in what list it falls.
It provides a degree of flexibility. It is widely used in determining
whether the state is within its power to make statute which involves a
subject mentioned in the union list of the constitution.

PART C
Q.15 What is the power of high court to issue certain writs?
Ans Article 226 of Constitution of India "Power of High Courts to
issue certain writs"

(1) Notwithstanding anything in Article 32 every High Court shall

have powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for
any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or

writs to any Government, authority or person may also be exercised
by any High Court exercising jurisdiction in relation to the territories
within which the cause of action , wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within
those territories.

(3) Where any party against whom an interim order, whether by way
of injunction or stay or in any other manner, is made on, or in any
proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents
in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an

application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour such
order has been made or the counsel of such party, the High Court
shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the
next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry
of that period, or , as the case may be, the expiry of the aid next day,
stand vacated.

(4) The power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme court by clause (2)
of Article 32.

q.16 explain,procedure for impeachment of the president of india ?

ans done backside

Q.16 Explain procedure for impeachment of the present of india?

Ans Article 61 in The Constitution Of India 1949

61. Procedure for impeachment of the President

(1) When a President is to be impeached for violation of the

Constitution, the charge shall be preferred by either House of
Parliament

(2) No such charge shall be preferred unless

(a) the proposal to prefer such charge is contained in a resolution

which has been moved after at least fourteen days notice in writing
signed by not less than one fourth of the total number of members of
the House has been given of their intention to move the resolution,
and
(b) such resolution has been passed by a majority of not less than two
thirds of the total membership of the House

(3) When a charge has been so preferred by either House of

Parliament, the other House shall investigate the charge or cause the
charge to be investigated and the President shall have the right to
appear and to be represented as such investigation

(4) If as a result of the investigation a resolution is passed by a

majority of not less than two thirds of the total membership of the
House by which the charge was investigated or cause to be
investigated, declaring that the charge preferred against the President
has been sustained, such resolution shall have the effect of removing
the President from his office as from the date on which the resolution
is so passed

Q.17 explain doctrine of pleasure with exception and case law

Article 310 of the Indian Constitution deals with the incorporation the
Common law doctrine of pleasure. It expressly provides that all the
persons who are members of the Defence Services or the Civil
services of the Union or of All- India services hold office during the
pleasure of the president. Similarly, members of the state services
hold office during the pleasure of the Governor. Though doctrine of
pleasure is accepted in India as it is developed in India, it has not been
completely accepted in India. It is not blindly followed as it is
followed in England; there are modifications in the doctrine. It can be
limited by the constitutional provisions. A civil servant in India could
always sue the Crown for the arrears of salary. Under Indian
constitution there are certain categories of people are excluded from
the operation of this doctrine:
a) Judges of the Supreme Court;
b) Judges of High Courts;
c)Chief Election commissioner .
d) Comptroller and Auditor General of India.
Exceptions to the safeguards:
The Article 311 of Indian Constitution provides protections to ensure
the interests are protected, and there are certain exceptions to this
protection. Civil servant cannot claim protection, while the exceptions
arise in a case. The following are the exceptions:

1) If any civil servant has been found guilty of an offence, he is not

entitled for the protection under Article 311 to him and such cases of
the criminal offence; he will be removed for the misconduct of
behavior without getting the chance of being heard.
2) The second exception is that where in cases regarding the
disciplinary charged with the allegations made against him, if he
thinks that it is not practicable to hold an enquiry for the same, the he
has the power to not to hold such enquiry.
3) The security of the state is the reasons under Article 311 and the
protection of it being the last exception. This right is in the hands of
President as the Governor as the case may be. Whenever, the
President or the Governor is satisfied that it is not in the interest of the
security of state to hold an enquiry, and then such enquiry can be
stopped.

Q.18 EExplain in detail legislative relation between union and

state ?
ANS DONE BACKSIDE