Constitution of India – Jurisprudence, Interpretation & General Laws Important Questions
Question 1.
The preamble to the Constitution of India sets out the aims and aspirations of the people of India. Comment. [Dec 2007 (4 Marks)]
Or
The true place of a preamble in a statute was at one time the subject of conflicting decisions. Is such an opinion still prevailing? Discuss, citing case law.
[December 2012 (6 Marks)]
Answer:
The preamble says briefly the objects, purposes intended to be served by the statute. The preamble to the Constitution sets out the aims and aspirations c j of the people of India. It is a part of the Constitution. The preamble declares India to be a Sovereign, Socialist, Secular, Democratic Republic and secures to all its citizens Justice, Liberty, Equality, and Fraternity.
It is declared that the § Constitution has been given by the people to themselves, thereby affirming the f republican character of the polity and the sovereignty of the people. The polity assured to the people of India by the Constitution is described in the preamble as a Sovereign, Socialist, Secular, and Democratic Republic.
Significance of the Preamble to the Constitution of India
- We, the people: The phrase “we, the people “has been taken from the Constitution of the USA. This means, the Constitution of India has been framed and enacted by the people of India the power to make the Constitution had been achieved by the people of India with great efforts. It was not derived by any external force.
- The principle “Government of the People, by the People and for the people ” can be seen in the Preamble.
- Democratic: Ours is a democratic country. Every citizen of India, who is aged 18 years and above is entitled to vote, irrespective of his caste, religion, race, sex, economic position. From the village level to parliament level, there will be elections meant for 5 years. While democracy failed in our surrounding countries, it is very much successful in our country.
- Secular: Secularism is the structure of our Constitution. Our government respects all religions. It does not uplift or degrade any particular religion.
The State has no religion itself. While our surrounding countries have adopted particular religions; India has not adopted any religion.
Example: Pakistan (Islam), Bangladesh (Islam), Nepal (Hinduism), Sri Lanka (Buddhism), Burma (Buddhism), etc.
Justice: The Preamble intends that justice must be given to every citizen irrespective of poverty, richness, caste, religion, sex, power, political power. There are several examples that our country adheres to this principle very strongly. The Supreme Court decision in Indira Gandhi. RajNarain shows that the Prime Minister and ordinary citizens are equal. Similarly, R V. Narasimha Rao is being prosecuted for the allegations of bribery, forgery, etc. It shows the independent judiciary in India.
Question 2.
“Constitution of India establishes a federation with strong centralizing tendency”. Discuss. [June 2004 (8 Marks)]
Or
“Constitution of India is basically federal with strong unitary features.” Discuss. [June 2010 (8 Marks)]
Answer:
The Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. the State of Kerala were of the view that the federal features form the basic structure of the Indian Constitution.
However, there is some controversy as to whether the Indian Constitution establishes a federal system or it stipulates a unitary form of Government with some basic federal features. To decide whether our Constitution is federal, unitary, or quasi-federal, one has to consider the con¬tents of our Constitution. Thus, to decide whether our constitution is federal or unitary, it will be better to have look over these systems and constitution.
The federal system has the following essential characteristics:
- Dual government – one at the center and one each for the States
- Distribution of powers between Central and State Government
- Supremacy of the constitution
- Written constitution
- Not easy to amend the constitution
- Authority of Courts
The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as both the Union and the State Governments and their respective organs derive their authority from the Constitution and it is not competent for the States to secede from the Union.
There is a division of legislative and executive powers between the Union and the State Governments. Lastly, the Supreme Court stands at the head of our judiciary to guard against the violation of the constitutional provisions. The Supreme Court decides disputes between the Union and the States, or the States inter and interprets finally the provisions of the Constitution.
However, the Indian Constitution does not follow strictly the pure federal system. If we look from another side, our constitution is mainly central and the Central Government has a large sphere of action and thus plays a more dominant role than the states.
Unitary Character:
- The President of India is the constitutional head. He is the executive of Union. Appointments of Governors are made by him.
- Appointment and transfer of the Chief Justice and Judges of the High Court are made by the president.
- Parliament has supreme rights in legislative matters.
- Parliament has the power to make a law of State Lists under special circumstances.
- Central Government has the power to issue directions to State Government.
- States are dependent on the center for aid as their financial resources are inadequate.
Judicial view: The question as to whether the Indian Constitution has a federal form of Government or a unitary constitution with some federal features came up in various cases before the Supreme Court. But in most cases, the observations have been made in a particular context and have to be understood accordingly. The question rests mostly on value judgment ie. on one’s own philosophy.
Thus, the Constitution of India is federal but with striking unitary features.
Question 3.
To what extent does the Indian Constitution differ from the federal system of other countries? [Dec 2014 (8 Marks)]
Answer:
The Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. the State of Kerala were of the view that the federal features form the basic structure of the Indian Constitution.
The federal system has the following essential characteristics:
- Dual government – one at the center and one each for the States
- Distribution of powers between Central and State Government
- Supremacy of the constitution
- Written constitution
- Not easy to amend the constitution
- Authority of Courts
The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as both the Union and the State Governments and their respective organs derive their authority from the Constitution and it is not competent for the States to secede from the Union.
There is a division of legislative and executive powers between the Union and the State Governments. Lastly, the Supreme Court stands at the head of our judiciary to guard against the violation of the constitutional provisions. The Supreme Court decides disputes between the Union and the States, or the States inter and interprets finally the provisions of the Constitution.
However, the Indian constitution does not follow strictly the pure federal system, j If we look from another side, our constitution is mainly central and the Central Government has a large sphere of action and thus plays a more dominant role | than the states.
Question 4.
What do you understand by the expression ‘State’ under Part-III of the Constitution of India? Expiate with the help of decided case law on the point. [Dec 2011 (6 Marks)]
Answer:
State [Article 12]: The term ‘State’ includes:
(a) Government and Parliament of India;
(b) Government and legislature of each state;
(c) All local and other authorities:
- within the territory of India
- under the control of the Government of India.
Important case laws:
- The expression ‘local authorities ‘refers to authorities like Municipalities, District Boards, Panchayat, Port Trust, Mining, Settlement Boards, etc. [Rashid Ahmed v. M B. Kairana]
- The expression ‘other authorities’ includes all authorities created by Constitution or statute. It is not necessary that such authorities should be engaged in performing governmental or sovereign functions. [Electricity Board, Rajasthan v. Mohan Lai]
- The expression ‘other authorities ’ includes all those bodies which are acting as agencies or instrumentalities of the government. [R. D. Shetty v. International Airport Authorities]
- It has been held that the university is an authority. [the University of Madras v. Shanta Bai]
- President is ‘State’ when making an order under Article 359. [Haroobhai v. the State of Gujarat]
Question 5.
Discuss the test laid down by the Supreme Court of India to determine the entity of “State”, whether it Is ‘instrumentality or agency of State’. [Dec 2018 (5 Marks)]
Answer:
In Ajay Hasia v. Khalid Mujib, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State:
- Share Capital: If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government
- Financial Assistance: Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.
- Monopoly Status: Whether the corporation enjoys a monopoly status that is conferred or protected by the State.
- State control: The existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.
- Functions: If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentally or agency of government.
- Department of government: If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government.
Question 6.
What do you mean by the doctrine of waiver of rights under the Constitution of India? [Dec 2009 (4 Marks)]
Answer:
The doctrine of waiver of rights is based on the premise that a person is his best judgment and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the State. However, the person must have the knowledge of his rights and that the waiver should be voluntary.
The doctrine was discussed in Basheshar Nath v. Income Tax Commissioner, where the majority expressed their view against the waiver of fundamental rights. It was held that it was not open to citizens to waive any of the fundamental rights.
Question 7.
Discuss In brief the doctrine of severability. [June 2013 (8 Marks)]
Answer:
Laws inconsistent with or in derogation of the fundamental rights [Article 13]:
All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III (Fundamental Rights), shall, to the extent of such inconsistency, be void.
1. The State shall not make any law which takes away or abridges the rights conferred by Part II and any law made in contravention of this clause shall, to the extent of the contravention, be void.
2. One thing to be noted in Article 13 is that it is not the entire law that is affected by the provisions in Part HI, but the law becomes invalid only to the extent to which it is inconsistent with the Fundamental Rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand.
However, on this point a clarification has been made by the Courts that an invalid part of the law shall be severed and declared invalid if really it is severable, ie., if after separating the invalid part the valid part is capable of giving effect to the legislature’s intent, then only it will survive, otherwise the Court shall declare the entire law as invalid. This is known as the rule of severability.
3. The doctrine has been applied invariably to cases where it has been found possible to separate the invalid part from the valid part of an Act. Article 13 only says that any law which is inconsistent with the fundamental rights is void “to the extent of inconsistency” and this has been interpreted to imply that it is not necessary to strike down the whole Act as invalid if only a part is invalid and that part can survive independently.
In A.K. Gopalan v. the State of Madras, the j ‘ Supreme Court ruled that where an Act was partly invalid, if the valid portion § was severable from the rest, the valid portion would be maintained, provided j| that it was sufficient to carry out the purpose of the Act.
Question 8.
What is the scope of Article 14 of the Constitution of India? To what extent is It correct to say that Article 14 forbids class legislation, but does not forbid classification? [June 2012(8 Marks)]
Answer:
Equality before the law [Article 14]: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The expression ‘equality before the 1aw is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual.
Equality before the law means that amongst equals the law should be equal.
That means like should be treated alike and among unequal same laws shall not be applicable.
Interpreting the scope of the Article, the Supreme Court of India held that:
- Equal protection means equal protection under equal circumstances.
- The State can make a reasonable classification for purposes of legislation.
- The presumption of reasonableness is in favor of the legislation.
- The burden of proof is on those who challenge the legislation.
Legislative Classification: A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws.
To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.
The Supreme Court in State of Bihar v. Bihar State ‘Plus-2 ’ lectures Associations, held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws. It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise, such classification is legal, valid, and reasonable.
Test of valid classification: Since a distinction is to be made for the purpose of enacting legislation, it must pass the classical test enunciated by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar.
Permissible classification must satisfy two conditions, namely:
- It must be founded on an intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group.
- The differentia must have a rational nexus with the object sought to be achieved by the statute in question.
The classification may be founded on different bases, such as geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. A legal and valid classification may be based on educational qualifications.
A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid. On the other hand, if it is based on an impermissible classification it violates that guarantee and is void.
Reiterating the test of reasonable classification, the Supreme Court in Dharam Dutt. Union of India held that laying down of intelligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete.
Question 9.
“Article 14 of the Constitution of India does not rule out classification for purposes of legislation; what it requires is a valid classification for the same.” Explain. [Dec 2013 (8 Marks)]
Answer:
Legislative Classification: A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws.
To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.
The Supreme Court in State of Bihar v. Bihar State ‘Plus-2 ’ lectures Associations, held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws.
It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise, such classification is legal, valid, and reasonable.
Test of valid classification: Since a distinction is to be made for the purpose of enacting legislation, it must pass the classical test enunciated by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar.
Permissible classification must satisfy two conditions, namely:
- It must be founded on an intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group.
- The differentia must have a rational nexus with the object sought to be achieved by the statute in question.
The classification may be founded on a different basis, such as geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. A legal and valid classification may be based on educational qualifications.
A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid. On the other hand, if it is based on an impermissible classification it violates that guarantee and is void.
Reiterating the test of reasonable classification, the Supreme Court in Dharam Dutt. Union of India held that laying down of intelligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete.
Question 10.
Article 14 of the Constitution of India says that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Explain it. Refer to the relevant Judgments. [June 2019 (8 Marks)]
Answer:
Equality before the law [Article 14]: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
“Equality before the law” is an expression of English Common Law while “equal protection of laws” owes its origin to the American Constitution.
The expression ‘equality before the law’ is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual.
Equality before the law means that amongst equals the law should be equal. That means like should be treated alike and among unequal same laws shall not be applicable.
Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favor of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.
Thus, Article 14 stands for the establishment of a situation under which there is the complete absence of any arbitrary discrimination by the laws themselves or in their administration.
Interpreting the scope of the Article, the Supreme Court of India held that:
- Equal protection means equal protection under equal circumstances.
- The State can make a reasonable classification for purposes of legislation.
- The presumption of reasonableness is in favor of the legislation.
- The burden of proof is on those who challenge the legislation. Explaining the scope of reasonable classification, the Court held that “even one corporation or a group of persons can be taken to be a class by itself for the purpose of legislation provided there is sufficient basis or reason for it. The onus of proving that there were also other companies similarly situated and this company alone has been discriminated against, was on the petitioner”.
Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees unequally, the person discriminated against will have no judicial remedy.
A remarkable example of the application of the principle of equality under the Constitution is the decision of the Constitution Bench of the Supreme Court in R. K. Garg v. Union of India. The legislation under attack was the Special Bearer Bonds (Immunities and Exemptions) Act, 1981. It permitted investment of black money in the purchase of these Bonds without any questions being asked as to how this money came into the possession.
In public interest litigation, it was contended that Article 14 had been violated because honest taxpayers were adversely discriminated against by the Act, which legalized evasion. But the Supreme Court rejected the challenge, taking note of the magnitude of the problem of black money which had brought into being a parallel economy.
In Air India v. Nergesh Meerza & Others, the Air India crew running the flights consisting of Pilots, FPs, and In-flights Pursers, on the one hand, the Air Hostesses, Check Air Hostesses, Additional Air Hostesses and Chief Air Hostesses on the other hand. The modes of appointment, service conditions were different for Pilots and Air Hostesses. The posts of Air Hostesses were purely reserved for young, attractive, and unmarried ladies from the ages 18 to 25 years. An Air Hostess should retire from the service on her attaining the age of 30 years or when she would get married whichever is earlier.
However, for the male crew, the retirement age was prescribed as 58 years and there was no restriction on marriage. Air Hostesses filed their grievances. The Supreme Court gave the judgment in favor of the Air Hostesses opining that too much gender discrimination was shown by the Air India Corporation.
Question 11.
Preferential treatment to certain persons belonging to backward classes in the form of reservation in education and jobs as provided in Articles 15(4) & 16(4) of the Constiiilbn of India is a means of ensuring the canon of equality enshrined in the preamble of the Constitution of India. Evaluate the statement. [Dec 2006 (8 Marks)]
Answer:
Prohibition of discrimination [Article 15]: This article prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.
Further, no citizen shall be subjected to any disability, restriction, or condition with regard to:
(a) Access to shops, public restaurants, hotels, and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads,s and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.
Exception: The State can make special provisions for women and children. The State can make special provision for the advancement of:
- Socially and educationally backward classes of citizens
- Scheduled casts and
- Scheduled tribes
Protective discrimination: In the eye of the law, there is no discrimination between man or woman. So, for a post of a clerk or Prime Minister man or woman are a competent person. There is no discrimination between them. But in fact, a man is physically stronger than a woman.
Therefore, keeping the weak physical position of the woman and children, the State is authorized by Article 15(3) to make any special provisions for their benefit. It is called ‘protective discrimination. Similarly for the advancement of the educationally and socially backward classes of people SC’s and ST’s the State is empowered to make special provisions protecting them under Article 15(4).
Question 12.
Akshay was denied public employment on the ground of place of birth. Discuss the remedy available to Akshay under the provisions of the Constitution of India. [Dec 2002 (5 Marks)]
Answer:
If someone is denied public employment on grounds of his caste, religion, or place of birth, he can use Article 16 of the Constitution for opposing such action. Article 16 guarantees to all citizens equality of opportunity in matters relating to the employment or appointment of office under the State. It also prohibits discrimination against a citizen on the grounds of religion race caste, sex descent, place of birth, or residence. Hence, Akshay can use the protection of this article and seek redressal.
Question 13.
Write a short note on the Abolition of untouchability
Answer:
Abolition of Untouchability [Article 17]: “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offense punishable in accordance with the law.
In 1955 Parliament enacted the Untouchability (Offences) Act, 1955. In 1976, the Act was amended and renamed as the “Protection of Civil Rights Act, 1955” making changes in the existing law namely, all offenses to be treated as non-compoundable and offenses punishable up to 3 months to be tried summarily; punishment of offenses enhanced; preaching of untouchability or it’s just made an offense; machinery envisaged for better administration and enforcement of its provisions.
Question 14.
Write a short note on the Abolition of titles
Answer:
Abolition of titles [Article 18]:
- No title, not being a military or academic distinction, shall be conferred by the State.
- No citizen of India shall accept any title from any foreign State.
- No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
- No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.
Article 18 is more a prohibition rather than a fundamental right. British Government used to confer titles upon persons who showed special allegiance to them. Many persons were made:
- Sir,
- Raj Bahadur,
- Rai Saheb,
- Knight, etc.
These titles had the effect of creating a class of certain persons that were regarded superior to others and thus had the effect of perpetuating inequality. To do away with that practice, Article 18 provides for the abolition of such titles.
Question 15.
“The right of freedom of speech and expression under Article 19(l)(a) of the Constitution of India is not an absolute right but subject to reasonable restrictions.” Discuss. [Dec 2009 (8 Marks)]
Answer:
- Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several facets, including the right to express one’s opinion unhindered, unfettered by the fear of retribution.
- It is one of the most basic elements for a healthy, open-minded democracy. It allows people to freely participate in the social and political happenings of their country.
- The right of freedom to of speech and expression is not completely unchecked. Article 19(2) allows for reasonable restrictions to be imposed on all fundamental rights, including that of freedom to speech and expression.
- The right to speech and expression includes the right to make a good or bad speech and even the right not to speak. One may express oneself even by signs. Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures, or any other mode.
Restriction on freedom of making speech & expression [Article 19(2)]: The State may impose by law reasonable restrictions on the freedom of speech and expression. Such restrictions may relate to:
- Security of the State
- Friendly relations with foreign states
- Public order
- Decency or morality
- Contempt of Court
- Defamation
- Sovereignty and integrity of India
Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by executive action. [Express News Papers Pvt. Ltd. v. Union of India]
Question 16.
“Right to fundamental freedoms is not absolute.” Elaborate. [June 2014 (6 Marks)]
Answer:
Article 19(1) of the Constitution, guarantees to the citizens of India six freedoms. Accordingly, all citizens shall have the right:
(a) To freedom of speech & expression
(b) To assemble peaceably & without arms
(c) To form association or unions
(d) To move freely throughout the territory of India
(e) To reside and settle in any part of the territory of India
(f) Etr acquire, hold and dispose of- of property [Deleted by 44th Amendment in 1978]
(g) To practice any profession, or to carry on any occupation, trade, or business Reasonable restrictions: These freedoms are basic rights that are recognized as the natural rights inherent in the status of a citizen. At the same time, none of these freedoms is absolute but subject to reasonable restrictions. The Constitution under Article 19(2) to 19(6) permits the imposition of restrictions on these freedoms subject to the following conditions:
- The restriction can be imposed by law and not by purely executive order.
- The restriction must be reasonable.
- The restriction must be imposed for achieving objects specified in Article 19(l)(fl) to (g).
The onus of proving to the satisfaction of the Court that the restriction is reasonable upon the State.
Question 17.
An organization of some persons belonging to a particular community sat on a dharna near Jan tar Mantar in New Delhi and later on moved towards Parliament House raising slogans against the Government to press for their demands. This led to a traffic jam. The government had imposed a ban on demonstrations near and at the Parliament House. The organization filed a petition in the High Court against the ban, pleading infringement of their fundamental right of freedom. Will the petition be admitted? Give reasons. [June 2008 (4 Marks)]
Answer:
Article 19(l)(b) gives the right to citizens to assemble peacefully and without arms. However, apart from the fact that the assembly must be peaceful and without arms, the State is also authorized to impose reasonable restrictions on this right in the interests of:
- Sovereignty & integrity of India, or
- Public order.
As facts given in the case, an organization of a business community staged processions, demonstrations, and agitations before the secretariat of the State Government on busy roads to press for their demands. This caused a traffic jam which is against the public order and the State can definitely impose a ban on such demonstrations.
As the ban on demonstration is valid, the petition will get rejected by the High Court.
Question 18.
The government of Madhya Pradesh passed a law prohibiting the manufacture of bidis in the villages during the agricultural season. No person residing in the village could employ any other person nor engage himself in the manufacture of bidis during the agricultural season. The objective of the provision was to ensure an adequate supply of labor for agricultural purposes. A bidi manufacturer could not even engage labor from outside the State, and so, had to suspend the manufacture of bidis during the agricultural season. Even villagers incapable of engaging in agriculture, like old persons, women, and children, etc., who supplemented their income by engaging themselves in manufacturing bidis were prohibited without any reason. Decide whether a law passed by the Government of Madhya Pradesh is constitutionally valid. [Dec 2009 (5 Marks)]
Answer:
Article 19(l)(g) of the constitution guarantees to all citizens freedom to practice any profession, or to carry any occupation, trade, or business. Such freedom is not absolute but subject to reasonable restrictions as may be imposed by the State. However, such restriction must be reasonable and can be imposed only by a duly enacted law and not by executive action. [Express News Papers Pvt. Ltd. v. Union of India]
The facts of the case are similar to Chintaman Rao v. the State of Madhya Pradesh, wherein the Supreme Court held the Central Provinces & Berar Regulation of Manufacture of Bidis (Agricultural Purpose) Act, 1948 invalid and unconstitutional because it totally prohibited the manufacture of bidis during the agricultural season in certain parts of the State.
Thus, a law passed by the Government of Madhya Pradesh is unconstitutional and invalid.
Question 19.
What are the restrictions on right to freedom of speech and expression under Article 19 of the Constitution of India? [Dec 2018 (4 Marks)]
Answer:
Restriction on freedom of making speech & expression [Article 19(2)]: The State may impose by law reasonable restrictions on the freedom of speech and expression. Such restrictions may relate to:
- Security of the State
- Friendly relations with foreign states
- Public order
- Decency or morality
- Contempt of Court
- Defamation
- Sovereignty and integrity of India
Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by executive action. [Express News Papers Pvt. Ltd. v. Union of India]
Question 20.
Explain the freedom of association under the Constitution of India. What reasonable restrictions have been imposed on this freedom under Article 19 of the Constitution of India? [June 2019 (5 Marks)]
Answer:
Freedom of association [Article 19( 1 )(c)]: Freedom of association includes freedom to hold meetings and to take out processions without arms. The right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is subject to a reasonable restriction which the State may impose in the interests of:
- Sovereignty and integrity of India or
- Public order or
- Morality.
Question 21.
What do you mean by double jeopardy? [Dec 2009 (4 Marks)]
Answer:
Double jeopardy means no one should be imprisoned or penalized two times for the same offense.
Protection against double jeopardy [Article 20(2)]: No person can be prosecuted and punished for the same offense more than once.
It is, however, to be noted that the conjunction ‘and is used between the words “prosecuted and punished” and therefore, if a person has been let off after prosecution without being punished, he can be prosecuted again.
Question 22.
“Article 20 of the Constitution of India guarantees protection against self¬incrimination”. Explain briefly. [Dec 2018 (4 Marks)]
Answer:
Protection against self-incrimination [Article 20(3)]: A person accused of any offense cannot be compelled to be a witness against himself. In other words, an accused cannot be compelled to state anything which goes against him. But it is to be noted that a person is entitled to this protection, only when all the three conditions are fulfilled:
- He must be accused of an offense.
- There must be a compulsion to be a witness.
- Such compulsion should result in his giving evidence against himself.
So, if the person was not an accused when he made a statement or the statement was not made as a witness or it was made by him without compulsion and does not result as a statement against him, then the protection available under this provision does not extend to such person or to such statement.
Question 23.
“Article 21 of the Constitution of India has been so transformed by the judiciary that it now encompasses all conceivable rights within its ambit.” Discuss. [Dec 2011 (8 Marks)]
Answer:
Protection of life and personal liberty [Article 21]: No person shall be deprived of his life or personal liberty except according to procedure established by law.
The majority in the case of A.K. Gopalan v. the State of Madras gave a narrow meaning to the expression ‘personal liberty’ within the subject matter of Articles 20 to 22 by confining it to the liberty of the person (that is, of the body of a person). The majority of the judges also took a narrow view of the expression ‘procedure established by law in this case.
The restricted interpretation of the expression ‘personal liberty’ preferred by the majority judgment in A.K. Gopalan’s case namely, that the expression ‘personal liberty’ means only liberty relating to or concerning the person or body of the individual, has not been accepted by the Supreme Court in subsequent cases.
That the expression ‘personal liberty’ is not limited to bodily restraint or to confinement to prison, only is well illustrated in Kharak Singh v. State of U.P. In that case the question raised was of the validity of the police regulations authorizing the police to conduct what are called as domiciliary visits against bad characters and to have surveillance over them.
The court held that such visits were an invasion, on the part of the police, of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep, and therefore violative of the personal liberty of the individual, unless authorized by a valid law. As regards the regulations authorizing surveillance over the movements of an individual the court was of the view that they were not bad, as no right to privacy has been guaranteed in the Constitution.
In Satwant Singh Sawhney v. A.P.O., New Delhi, it was held that the right to travel is included within the expression ‘personal liberty and, therefore, no person can be deprived of his right to travel, except according to the procedure established by law. Since a passport is essential for the enjoyment of that right, the denial of a passport amounts to deprivation of personal liberty.
In the absence of any procedure prescribed by the law of land sustaining the refusal of passport to a person, its refusal amounts to an unauthorized deprivation of personal liberty guaranteed by Article 21 This decision was accepted by the Parliament, and the infirmity was set right by the enactment of the Passports Act, 1967.
1. In Maneka Gandhi’s case, the Supreme Court overruled its judgment in the Gopalan Case. It stated that protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action by introducing the American concept of ‘due process of law’. It pronounced the expression ‘Personal Liberty’ is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of a man.
2. In Maneka Gandhi’s case, it was held that before a person may be deprived of his liberty there must be:
- A valid law
- The law must provide a procedure.
- The procedure must be just, fair and reasonable.
- The law must be reasonable.
The Court’s decision in Maneka Gandhi Case has been reaffirmed in the subsequent cases also.
Thus, it was held that the right to live is not merely confined to physical existence but includes the right to live with human dignity. This was given rise to many fundamental rights.
All these rights although not enshrined in the constitution but found their root in Article 21. Some of these rights are:
- Right to bail.
- Right against the use of third-degree methods by police.
- Right of the detained person to have an interview with his lawyer and family members.
- Right to travel abroad.
Question 24.
Discuss ‘the procedure established by law’ under Article 21 of the Constitution of India with decided case laws. [Dec 2018 (8 Marks)]
Answer:
In Maneka Gandhi’s case, the Supreme Court overruled its judgment in the Gopalan Case. It stated that protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action by introducing the American concept of ‘due process of law’. It pronounced the expression ‘Personal Liberty’ is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of a man.
1. In Maneka Gandhi’s case, it was held that before a person may be deprived of his liberty there must be:
- A valid law
- The law must provide a procedure.
- The procedure must be just, fair and reasonable.
- The law must be reasonable.
The Court’s decision in Maneka Gandhi Case has been reaffirmed in the subsequent cases also.
Thus, it was held that the right to live is not merely confined to physical existence but includes the right to live with human dignity. This was given rise to many fundamental rights.
All these rights although not enshrined in the constitution but found their root in Article 21. Some of these rights are:
- Right to bail.
- Right against the use of third-degree methods by police.
- Right of the detained person to have an interview with his lawyer and family members.
- Right to travel abroad.
Question 25.
Write a short note on the Right to education
Answer:
Right to education [Article 21A]: The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21A in the Constitution of India to provide free and compulsory education of all children in the age group of 6 to 14 years as a Fundamental Right in such a manner as the State may, by law, determine.
The Right of Children to Free & Compulsory Education Act, 2009 [RTE Act, 2009], which represents the consequential legislation envisaged under Article 21 A, means that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
Question 26.
Write a short note on Safeguards in a law providing for preventive detention. [Dec 2006 (6 Marks)]
Or
What is meant by ‘preventive detention? What are the safeguards available against preventive detention? [June 2013 (6 Marks)]
Answer:
Preventive detention means the detention of a person without trial. The object of preventive detention is not to punish a person for having done something but to intercept him before he does it and to prevent him from doing it. No offense is proved nor any charge formulated and yet a person is detained because he is likely to commit an act prohibited by law.
Protection against arrest and detention in certain cases [Article 22]:
1. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he > be denied the right to consult, and to be defended by, a legal practitioner •§ of his choice. f
2. Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.
3. No such person shall be detained in custody beyond the period of 24 hours without the authority of a magistrate.
Safeguards against Preventive Detention:
4. No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless:
(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of 3 months that there is in its opinion sufficient cause for such detention.
(b) Such person is detained in accordance with the provisions of any law made by Parliament.
5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Question 27.
Discuss the right against exploitation as guaranteed under the Constitution of India. [Dec 1997 (12 Marks)]
Answer:
Right against exploitation [Article 23]: Traffic in human beings and beggars and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offense punishable in accordance with the law.
As per Article 23, traffic in human beings and beggars and other similar forms of forced labor are prohibited. Thus the traditional system of beggars particularly in villages becomes unconstitutional and a person who is asked to do any labor without payment or even a laborer with payment against his desire can complain against the violation of this fundamental right.
‘Traffic’ in human beings means to deal in men and women like goods, such as to sell or let or otherwise dispose of them. ‘Beggar’ means involuntary work without payment.
The State can impose compulsory service for public purposes such as conscription for defense or social service etc. While imposing such compulsory service the State cannot make any discrimination on grounds only of religion, race, caste or class, or any of them. [Article 23(2)]
Prohibition of employment of children factories etc. [Article 24]: No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39(e) imposes an obligation upon the State to ensure that the health and strength of the workers, men, and women, and the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocations unsummed to their age, strength, etc.
Accordingly, keeping in view the provision of Article 24 read with Article 39(e) following laws have been enacted or amended suitability:
- Child Labour (Prohibition & Regulations) Act, 1986
- Children (Pledging of Labour) Act, 1933
- Factories Act, 1948
- Mines Act, 1952
- Apprentice Act, 1961.
Question 28.
“India is a secular State.” Explain the provisions of the Constitution of India in this regard. Discuss the right to freedom to profess and propagate religion and limitations thereto. [June 2002 (12 Marks)]
Answer:
Secularism is the structure of our Constitution. Our government respects all religions. It does not uplift or degrade any particular religion. The State has no religion itself. While our surrounding countries have adopted particular religions; India has not adopted any religion.
Example: Pakistan (Islam), Bangladesh (Islam), Nepal (Hinduism), Sri Lanka (Buddhism), Burma (Buddhism), etc.
The Constitution of India stands for a secular State. The State has no official religion. Secularism pervades its provisions which give full opportunity to all persons to profess, practice, and propagate the religion of their choice.
The Supreme Court in State of Karnataka v. Dr. Praveen Bhai Thogadia held that secularism means that State should have no religion of its own and each person, whatever his religion, must get an assurance from the State that he has the protection of law to freely profess, practice and propagate his religion and freedom of conscience.
Provisions as to secularism are given in Article 25 to 28 of the Constitution of India which provides as follows:
Article 25 provides that all persons are entitled to freedom of conscience and the right freely to profess to practice religion.
Article 26 provides that subject to public order, morality, and health, every religious denomination or any section thereof shall have the right:
- To establish and maintain institutions of religious and charitable purposes
- To manage its own affairs in matters of religion
- To own and acquire movable and immovable property
- To administer such property in accordance with few.
Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28 provides that no religious instruction shall be provided in any educational institution wholly maintained out of State funds.
Question 29.
Describe the right of minorities to establish and administer educational institutions as enshrined in the Constitution of India. [June 2013 (6 Marks)]
Answer:
Right of minorities to establish and administer educational institutions [Article 30]: All minorities, whether based on religion or on language, shall have the right to establish and administer educational institutions of their choice.
In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
In T.M.A. Pai Foundation v. the State of Karnataka, is an eleven Bench decision dealing with the right of minorities to establish and administer educational institutions, the Supreme Court held that minority includes both linguistic and religious minorities and for determination of minority status, the unit would be the State and not the whole of India.
Further, the right of minorities to establish and administer educational institutions (including professional education) was not absolute and regulatory measures could be imposed for ensuring educational standards and maintaining excellence thereof. Rights of minorities included the right to determine the procedure and method of admission and selection of students, which should be fair and transparent, and based on merit.
Question 30.
Examine the amenability of fundamental rights.
Answer:
The elementary question in controversy has been whether Fundamental Rights are amendable so as to take away the basic rights guaranteed by the Constitution. Another controversy deals with the extent, scope, and authority of £j Parliament to amend the Constitution.
The answer has been given by the Supreme Court from time to time, sometimes under immense pressure, and can be understood in the light of the following cases:
1. Shankari Prasad v. Union of India: The validity of the First Amendment to the Constitution was challenged on the ground that it purported to abridge the fundamental rights. The Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2). An amendment is valid even if it abridges any fundamental Right. This decision was approved by the majority judgment in Sajjan Singh v. the State of Rajasthan.
2. Golaknath v. State of Punjab AIR 1967 SC 1643: The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held Fundamental Rights are outside the amendatory process if the amendment takes away or abridges any of the rights.
It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, the Court said that an amendment is a law under Article 13(2) of the Constitution of India, and if it violates any fundamental right, it may be declared void.
3. To nullify the effect of the Golaknath case, Parliament passed the Constitution (24th Amendment) Act in 1971 introducing certain changes in Article 13 and Article 368, so to assert the power of Parliament to amend the Fundamental Rights.
4. Kesavanand Bharti v. the State of Kerala’. The Supreme Court upheld the validity of the 24th Constitutional Amendment holding that Parliament can amend any part of the Constitution including the Fundamental Rights. But the Court made it clear that Parliament cannot alter the basic structure or the framework of the Constitution.
5. To neutralize the effect of this limitation, the Constitution (42nd Amend¬ment) Act, 1976 added two new clauses to Article 368. By new Clause (4), it has been provided that no amendment of the Constitution made before or after the 42nd Amendment Act shall be questioned in any Court on any ground. New Clause (5) declares that there shall be limitation whatever on the Constitutional power of parliament to amend by way of addition, variation, or repeal the provisions of this Constitution made under Article 368.
6. Minerva Mills v. Union of India: The Supreme Court unanimously held that Clauses (4) & (5) of Article 368 and Section 55 of the 42nd Amendment Act as unconstitutional transgressing the limits of the amending power and damaging or destroying the basic structure of the Constitution.
7. Woman Rao v. Union of India: The Supreme Court held that the amend¬ments to the Constitution made on or after 24.4.1973 by which 9th Schedule as amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or anyone or more of them are beyond the constitutional power of Parliament since they damage the basic or essential features of the Constitution or its basic structure.
Question 31.
Is it correct to say that Directive Principles of State Policy have to conform to and run as subsidiary to Fundamental Rights? Discuss. [June 20If (6 Marks)]
Answer:
1. Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed, or sex. They are enforceable by the Courts.
2. Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitu¬tion, are not enforceable by the Courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.
3. Since Directive Principles are not enforceable by Court, their non-obser¬vance does not create any legal consequences. But any law implementing Directive Principles has to conform to Fundamental Rights.
4. In the State of Madras v. Champakam Dorajrajan, Supreme Court held that Directive Principles have to conform and run as a subsidiary to Fundamental Rights because the latter is enforceable in courts while the former is not. However, this position was changed later. Being part of the same constitution, both Fundamental Rights and Directive Principles are equally important and neither of them is superior or inferior to the other. They are in fact complementary and supplementary to each other. Both should be given effect as far as possible.
5. Though Parliament is competent to amend the constitution in order to enable the state to implement Directive Principles, it should ensure that the basic structure of the Constitution is not affected.
6. Constitution is based on the bedrock of balance between the Directive Principles and Fundamental Rights and to give absolute primacy to one over the other would disturb this balance. Both can co-exist harmoniously.
Question 32.
Discuss the fundamental duties imposed on citizens of India. [June 2012 (6 Marks)]
Answer:
Fundamental Duties [Article 51 A]: It shall be the duty of every citizen of India:
- To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
- To cherish and follow the noble ideals which inspired our national struggle for freedom.
- To uphold and protect the sovereignty, unity, and integrity of India.
- To defend the country and render national service when called upon to do so.
- To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities.
- To renounce practices derogatory to the dignity of women.
- To value and preserve the rich heritage of our composite culture.
- To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.
- To develop the scientific temper, humanism, and the spirit of inquiry and reform.
- To safeguard public property and to abjure violence.
- To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
- Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of 6 and 14 years?
Question 33.
Discuss the ordinance-making powers of the President of India and of the Governor of a State as provided in the Constitution of India. [Dec 2010 (6 Marks)]
Answer:
Power of President to promulgate Ordinances during recess of Parliament [Article 123]: The President shall have the power to legislate by ordinances at a time when it is not possible to have parliamentary enactment on the subject immediately. This power can be used by the President to meet a sudden situation arising in the country when parliament is not in session and which it cannot deal with under the ordinary law.
Ordinance making power of the President has the following peculiarities:
- An Ordinance promulgated under Article 123 shall have the same force and effect as an Act of Parliament.
- Such ordinance shall be laid before both Houses of Parliament.
- Such ordinance shall cease to operate at the expiration of 6 weeks from the reassembly of Parliament or if resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.
- When two houses of parliament assemble on two different dates, the period of 6 weeks is to be reckoned from the latter of two dates.
- Such ordinance may be withdrawn by the President at any time.
- Such ordinance-making power has to be exercised by the President on the advice of the Council of Ministers.
Power of Governor to promulgate ordinances during recess of Legislature [Article 213]:
The Governor’s power to make Ordinances given in Article 213 is similar to the Ordinance making power of the President and has the force of an Act of the State Legislature.
Governor can make Ordinance only when the State Legislature or either of the two Houses (where it is bicameral) is not in session. He must be satisfied that circumstances exist which render it necessary to take immediate action.
Ordinance making power of the President has the following peculiarities:
- An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor.
- The Ordinance must be laid before the state legislature (when it reassembles) and shall automatically cease to have effect at the expiration of 6 weeks from the date of the re-assembly unless disapproved earlier by that legislature.
- While exercising this power Governor must act with the aid and advice of the Council of Ministers.
Question 34.
Describe the power of the President of India to promulgate ordinances. [Dec 2013 (6 Marks)]
Answer:
Power of President to promulgate Ordinances during recess of Parliament [Article 123]: The President shall have the power to legislate by ordinances at a time when it is not possible to have parliamentary enactment on the subject immediately. This power can be used by the President to meet a sudden situation arising in the country when parliament is not in session and which it cannot deal with under the ordinary law.
Ordinance making power of the President has the following peculiarities:
- An Ordinance promulgated under Article 123 shall have the same force and effect as an Act of Parliament.
- Such ordinance shall be laid before both Houses of Parliament.
- Such ordinance shall cease to operate at the expiration of 6 weeks from the reassembly of Parliament or if resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.
- When two houses of parliament assemble on two different dates, the period of 6 weeks is to be reckoned from the latter of two dates.
- Such ordinance may be withdrawn by the President at any time.
- Such ordinance-making power has to be exercised by the President on the advice of the Council of Ministers.
Question 35.
Explain powers of the Parliament to enact laws on subjects enumerated in the State List. [June 2011 (8 Marks)]
Answer:
State legislatures have been given exclusive powers to make laws with respect to subjects enumerated in List-II i.e. State List. But the Constitution of India makes a few exceptional circumstances when parliament can makes laws on the state list also. The exceptional circumstances are as follows.
National interest [Article 249]: Parliament can make a law with respect to a matter enumerated in the State list if Rajya Sabha declares by a resolution supported by 2/3rd of its members present and voting that is necessary or expedient in the national interest that Parliament should make a law on that matter.
Such resolution shall remain in force for a period not exceeding 1 year. However, a fresh resolution can be passed at the end of 1 year, and that way the law of parliament can be continued to remain in force for any number of years. The law passed by Parliament under the provisions ceases to have effect automatically after 6 months of the expiry of the resolution.
Proclamation of Emergency [Article 250]: While the proclamation of emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India on any matter in the State. Such a law will have effect only up to the expiry of 6 months after the proclamation ceases to operate.
On request of two or more States [Article 252]: If two or more States are desirous that on any particular item included in the State List there should be common legislation then they can make a request to a Parliament to make a law on such subject. The law so made may be adopted by other States also by passing resolutions in their legislatures. To take an example, Parliament passed the Prize Competitions Act, 1955 under these provisions.
To enforce international agreements [Article 253]: Constitution authorizes Parliament to make law on any subject included in any list to implement:
- Any treaty, agreement, or convention with any other country or countries, or
- Any decision made at any international conference, association, or other body.
Breakdown of Constitutional Machinery in a State [Articles 356 & 357]:
Parliament can make law with respect to all State matters as regards a State in which there is a breakdown of constitutional machinery and is under the presidential rule.
Question 36.
Describe in brief the powers of Parliament to make laws on the subjects enumerated in the State List. [Dec 2012 (6 Marks)]
Answer:
State legislatures have been given exclusive powers to make laws with respect to subjects enumerated in List-II i.e. State List. But the Constitution of India makes a few exceptional circumstances when parliament can makes laws on the state list also. The exceptional circumstances are as follows.
National interest [Article 249]: Parliament can make a law with respect to a matter enumerated in the State list if Rajya Sabha declares by a resolution supported by 2/3rd of its members present and voting that is necessary or expedient in the national interest that Parliament should make a law on that matter.
Such resolution shall remain in force for a period not exceeding 1 year. However, a fresh resolution can be passed at the end of 1 year, and that way the law of parliament can be continued to remain in force for any number of years. The law passed by Parliament under the provisions ceases to have effect automatically after 6 months of the expiry of the resolution.
Proclamation of Emergency [Article 250]: While the proclamation of emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India on any matter in the State. Such a law will have effect only up to the expiry of 6 months after the proclamation ceases to operate.
On request of two or more States [Article 252]: If two or more States are desirous that on any particular item included in the State List there should be common legislation then they can make a request to a Parliament to make a law on such subject. The law so made may be adopted by other States also by passing resolutions in their legislatures. To take an example, Parliament passed the Prize Competitions Act, 1955 under these provisions.
To enforce international agreements [Article 253]: Constitution authorizes Parliament to make law on any subject included in any list to implement:
- Any treaty, agreement, or convention with any other country or countries, or
- Any decision made at any international conference, association, or other body.
Breakdown of Constitutional Machinery in a State [Articles 356 & 357]:
Parliament can make law with respect to all State matters as regards a State in which there is a breakdown of constitutional machinery and is under the presidential rule.
Question 37.
Discuss in brief the rule of colorable legislation. [Dec 2009 (4 Marks)]
Answer:
The doctrine of colorable legislation is based upon the maximum that “you cannot do indirectly what you cannot do directly”. If a legislature has no competence to pass a law on a subject, it cannot pass a law on that subject J by merely purporting to within the limits of its power. Such legislation is called colorable legislation. It applies to delegated legislation and subordinate legislation also.
Example: Railway is the subject mentioned in the union list. Only the parliament j8 has the power to make a law on railways. If any State Legislature makes any law pertaining to the railway, it becomes invalid. It is called colorable legislation.
Question 38.
Explain the ‘pith and substance’ rule with the help of decided cases. [June 2014 (4 Marks)]
Answer:
The rule of pith & substance means that where the law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of the legislature.
Entry 6 of List II deals with “Public Health and Sanitation”. Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it dealt with a matter which fell in Entry 81 of List I which reads: “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication” and therefore, the State Legislature was not competent to pass it.
The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of the public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was “public health” and not “broadcasting”. [G. Chawla v. the State of Rajasthan]
Question 39.
Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it deals with a matter which falls in entry 81 of List-I under the Constitution of India which reads:
“Post and telegraphs, telephones, wireless broadcasting and other like forms of communication” and therefore, the State Legislature was not competent to pass it. Examine the proposition in the light of “Pith and Substance Rule” referring to the case law on this point. [Dec. 2019 (5 Marks)]
Answer:
The rule of pith & substance means that where the law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of the legislature.
Entry 6 of List II reads “Public Health and Sanitation”. Rajasthan Legislator passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it dealt with a matter which fell in Entry 81 of List I which reads: “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication” and therefore, the State Legislature was not competent to pass it.
The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of the public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was “public health” and not “broadcasting”. [G. Chawla v. the State of Rajasthan]
Question 40.
The creation of monopoly rights in favor of a person or body of persons to carry on any business prima facie affects the freedom of trade. Can the State create a monopoly in favor of itself? Answer citing case law, if any. [Dec2012 (8 Marks)]
Answer:
Freedom of trade, commerce & intercourse [Article 301]: Trade, commerce, and intercourse throughout the territory of India shall be free.
The creation of monopoly rights in favor of a person or body of persons to carry on any business prima facie affects the freedom of trade. But in certain circumstances, it can be justified.
Article 19(6)(ii) makes it clear that the freedom of profession, trade, or business will not be understood to mean to prevent the state from undertaking either directly or through a corporation owned or controlled by it, any trade, business, industry or service, whether to the exclusion, complete or partial, citizens or otherwise.
If a law is passed creating a State monopoly the Court should enquire “what are the provisions of the said law which are basically and essentially necessary for creating the state monopoly Article 19(6)(ii) protects only the essential and basic provisions. If there are other provisions that are subsidiary or incidental to the operation of the monopoly they do not fall under Article 19(6)(ii). It was held in R.C. Cooper v.
Union of India, [known as Bank Nationalization case], that the impugned law which prohibited the named banks from carrying the banking business was a necessary incident of the business assumed by the Union and hence was not liable to be challenged under Article 19(6)(ii) in so far as it affected the right of a citizen to carry on business.
Question 41.
Explain the writ jurisdictions of the Supreme Court and High Courts as provided in the Constitution of India. [June 2010 (8 Marks)]
Answer:
Jurisdiction of the Supreme Court:
- Supreme Court is the highest Court in the country both for matters of ordinary law and for interpreting the Constitution.
- Supreme Court is an institution created by the Constitution.
- Supreme Court entertains appeals (in civil and criminal and other cases) from High Courts and certain Tribunals.
- Supreme Court has also writ jurisdiction for enforcing Fundamental Rights.
- Supreme Court can advise the President on a reference made by the H President on questions of fact and law. It has a variety of other special y jurisdictions.
Jurisdiction of High Courts:
- High Court that functions under the Constitution were not created for the first time by the Constitution. Some High Courts existed before the Constitution, although some new High Courts have been created after 1950.
- The High Courts in British ruling were established under the Indian High Courts Act, 1861 (an Act of the UK Parliament). The remaining High Courts were established or continued under the Constitution or under special Acts.
- High Courts for each State have appellate, civil, and criminal jurisdiction over lower courts.
- High Courts have writ jurisdiction to enforce fundamental rights and for certain other purposes.
- Some High Courts Bombay, Calcutta, and Delhi have ordinary original civil jurisdiction (le. jurisdiction to try regular civil suits) for their respective cities.
- High Courts can also hear references made by the Income Tax Appellate Tribunal under the Income Tax Act, 1961 and other tribunals.
Question 42.
In case, Hamid was terminated from the police service. Hamid filed a will petition against termination order on (the ground that a reasonable opportunity (if being heard was not given to him by the government. The writ petition was dismissed by the Court as the government proved that a reasonable opportunity of being heard had been given to the petitioner. Afterward, Hamid filed another writ petition on the ground that as he was appointed by the Director-General of Police, termination by the order of Deputy Inspector General of Police was in violation of Article 311(1) of the Constitution of India. Decide the validity of the second writ petition. [June 2009 (5 Marks)]
Answer:
According to the principle of res judicata, once a matter is finally decided by a competent Court, no party can be permitted to reopen it in subsequent litigation.
In this case, the Court has dismissed the petition as the government proved that a reasonable opportunity of being heard had been given to the petitioner. Thus, the matter is heard and finally decided by Court hence it will be covered by the principle of res judicata and the subsequent writ will be dismissed.
Thus, the doctrine of res judicata prevents taking matters again and again for the same case on the basis of different reasons or grounds. Grounds mentioned in the second petition that termination by the order of Deputy Inspector General of Police was in violation of Article 311(1) of the Constitution of India could have been stated in the first petition also along with the ground that he had not been given the opportunity of being heard. But Hamid did not do so and hence his subsequent petition will be barred by the principle of res judicata.
Question 43.
Article 32 of the Constitution of India empowers the Supreme Court to enforce the fundamental rights guaranteed under Part III of the Constitution of India. Explain how the provisions of Article 32 of the Constitution of India have helped in the enforcement of fundamental rights. [Dec 2010 (8 Marks)]
Answer:
Under the Constitution by virtue of Article 226, every High Court has the power to issue directions or orders or writs including writs in the nature of Habeas corpus, Mandamus, Prohibition, Certiorari, and Quo-warranto for the enforcement of fundamental rights or for any other purpose. The power is exercisable by each High Court throughout the territory in relation to which it exercises jurisdiction.
The Supreme Court could be moved by appropriate proceedings for the issue of directions or orders or writs for the enforcement of fundamental rights guaranteed. Article 32 itself is a fundamental right, the Constitutional remedy of the writ is available to anyone whose fundamental rights are infringed by State action.
Question 44.
Write in brief the importance of the writ of habeas corpus. [June 2011 (6 Marks)]
Answer:
Habeas corpus = to have a body
A writ of Habeas Corpus is in the nature of an order by Court calling upon the person who has detained another to produce the latter before the Court in order to let the Court know on what ground he has been confined and set him free if there is no a legal justification for the imprisonment.
Who can make an application: An application of habeas corpus can be made by any person on behalf of the detained person as well as the detained person himself. If any person is arrested or kept under unauthorized detention, the friends or relatives of that person can approach the Supreme Court under Article 32 or to High Court under Article 226.
The disobedience to this writ is met with punishment for contempt of Court under the Contempt of Courts Act.
Question 45.
“Writ of habeas corpus is a bulwark of personal liberty.” Justify this statement in light of the provisions stated in the Constitution of India. [June 2014 (8 Marks)]
Answer:
Habeas corpus = to have a body
A writ of Habeas Corpus is in the nature of an order by Court calling upon the person who has detained another to produce the latter before the Court in order to let the Court know on what ground he has been confined and set him free if there is no a legal justification for the imprisonment.
Who can make an application: An application of habeas corpus can be made by any person on behalf of the detained person as well as the detained person himself. If any person is arrested or kept under unauthorized detention, the friends or relatives of that person can approach the Supreme Court under Article 32 or to High Court under Article 226.
The disobedience to this writ is met with punishment for contempt of Court under the Contempt of Courts Act.
Question 46.
Write a short note on writ of ‘Quo Warranto’. [Dec. 2019 (4 Marks)]
Answer:
Quo warranto = What is your authority?
The writ of Quo warranto is issued to call upon the holder of a public office to show to the Court that under what authority is beholding the office in question. If it is found on investigation that he is not entitled to the office, the court may restrain him from acting in the office and also declare the office to be vacant. All High Courts & Supreme Court can issue this writ.
Following are some important points relating to a writ of Quo Warranto:
- Writ of Quo Warranto can be issued if the officeholder is a public office.
- The public office must be an independent and substantive character.
- The public office must be a statutory or constitutional body.
- The writ may be issued in respect of the office of the Prime Minister, Chief Minister, Judge of the High Court, President of Zilla Parishad, Speaker of the Parliament or State Legislature, University officials, etc.
- The writ cannot be issued against a private person or where the alternative remedy is available to the person.
Question 47.
“A declaration of fundamental rights is meaningless unless there Is an effective judicial remedy for their enforcement.” Comment on this statement explaining the judicial remedies provided in the Constitution of India. [Dec 2014 (6 Marks)]
Answer:
Under the Constitution by virtue of Article 226, every High Court has the power to issue directions or orders or writs including writs in the nature of Habeas corpus, Mandamus, Prohibition, Certiorari, and Quo-warranto for the enforcement of fundamental rights or for any other purpose. The power is exercisable by each High Court throughout the territory in relation to which it exercises jurisdiction.
The Supreme Court could be moved by appropriate proceedings for the issue of directions or orders or writs for the enforcement of fundamental rights guaranteed. Article 32 itself is a fundamental right, the Constitutional remedy of the writ is available to anyone whose fundamental rights are infringed by State action.
Question 48.
Write short link’s on:
1. Writ of Mandamus
2. Writ of Prohibition
3. Writ of Certiorari
4. Writ of Quo Warranto
Answer:
1. Writ of Mandamus
- The word ‘Mandamus’ literally means we command.
- It is a command issued by Supreme Court or High Court to any person, corporation, inferior court, or government who has to perform statutory duty but who fails to do so.
- Writ of Mandamus cannot be issued against
(a) Private person
(b) President and Governor of State – Article 361
2. Writ of Prohibition
- A writ of prohibition is issued by Supreme Court or High Court to an inferior court or Tribunal to refrain from doing something which it is about to do.
- It is based on the principle that prevention is better than cure
- It is generally issued before the trial of the case or during the pendency of the proceeding before the order is made.
- While mandamus commands activity, prohibition commands inactivity.
3. Writ of Certiorari
- Certiorari means ‘to be certified’ or ‘to be more fully informed of’
- It can be issued by Supreme Court or High Court to the inferior Court or any authority, whenever any authority or court:
(a) Has abuse of jurisdiction
(b) Has acted without authority
(c) Has violated the principle of natural justice
(d) Has committed a prima facie error on the report or decision.
(e) Has violated Fundamental Rights available to citizens under Part
- Supreme Court can issue a writ of certiorari to any high court correcting erroneous decisions
- The object of both the writs of prohibition and of certiorari is the same, prohibition is available at an earlier stage whereas certiorari is available at a later stage.
4. Writ of Quo-warranto
- Quo-warranto means ‘What is your authority?’
- This writ prevents a person from continuing in public office who has wrongfully usurped the office. It calls upon the holder of a public office in question.
- If on the investigation, it is found that he is not entitled to public office, the court may restrain him from acting and order him to vacate office.
- It is issued when the office is of public and of a substantive nature and is created by statute or by the Constitution itself.
- The writ may be issued in respect of the office of Prime Minister, Judge of High Court, Speaker of Parliament, University officials, etc.
- This writ can’t be issued against a private person or where the alternative remedy is available to the person.
Question 49.
Explain ‘delegated legislation. State the circumstances in which delegated legislation is possible. [Dec 2011 (6 Marks)]
Answer:
Delegated or subordinate legislation means rules of law made under the authority of an Act of Parliament. Although lawmaking is the function of the legislature, it may, by a statute, delegate its power to other bodies or persons. The statute which delegates such power is known as Enabling Act. By Enabling Act the legislature lays down be broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules, regulations, orders, by-laws, etc.
Legislation is either supreme or subordinates. The supreme legislation is that which proceeds from supreme or sovereign power in the State and therefore capable of being repealed, annulled, or controlled by legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is, therefore, dependent for its continued existence and validity on some sovereign or supreme authority.
Question 50.
What is ‘delegated legislation? What are the limits under which powers of delegated legislation may be exercised?
Answer:
Delegated or subordinate legislation means rules of law made under the authority of an Act of Parliament. Although lawmaking is the function of the legislature, it may, by a statute, delegate its power to other bodies or persons. The statute which delegates such power is known as Enabling Act. By Enabling Act the legislature lays down be broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules, regulations, orders, by-laws, etc.
Classification of Subordinate Legislation:
Executive: Though the main function of the executive is to enforce laws, but in certain cases, the power of making rules is delegated to the various departments of the government, which is called subordinate delegated legislation. Thus, the rules framed by the Government under the various Municipal Acts fall under this category.
Judicial: It means rules of procedure made by superior courts for their own guidance under authority delegated to them for the purpose. In other words, the superior courts have the power of making rules for the regulation of their own procedures. The High Courts are authorized to frame rules for regulating the procedure to be followed in Courts. Some such rules have been framed by the High Court under the Guardians of Wards Act, Insolvency Act, and Succession Act, etc.
Municipal: Sometimes municipal authorities are provided with the power of establishing special laws for the districts under their control. They are allowed to make bye-laws for limited purposes within their areas. These are legislation of local bodies such as municipalities or corporations.
Autonomous: Under this head falls the regulations that autonomous bodies such as Universities make in respect of matters which concern themselves.
Colonial Legislation: The law made by colonies under the control of some other nation, which are subject to supreme legislation of the country under whose control they are.
Question 51.
Write a short note on Money Bills
Answer:
A money bill is a bill that contains provisions of imposition or abolition of taxes or charging expenditure out of the Consolidated Fund of India. A Money Bill can only be introduced in Lok Sabha and that too with the prior permission of the President. A money bill after being passed in Lok Sabha is sent to Rajya Sabha. Rajya Sabha can’t amend the money bill, it can only suggest changes.
It is to the discretion of Lok Sabha whether to accept any or all the suggestions or reject all. Rajya Sabha has to send Money Bill back to Lok Sabha within 14 days, otherwise, it is deemed to be passed by both the houses and sent to President for assent. Speaker of Lok Sabha has a special power that it is his decision when to consider a bill as Money Bill.
Question 52.
Write a short note on Ad hoc and Standing Committees
Answer:
Parliamentary Committees are of two kinds:
- Ad hoc Committees
- Standing Committees.
Ad hoc Committees: Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report.
Examples of ad hoc committees:
- Committees on Bills (Select and Joint).
- Railway Convention Committee.
- Committees on the Draft Five Year Plans.
- Hindi Equivalents Committee.
Standing Committees: Standing Committees are permanent committees. Each House of Parliament has Standing Committees. Examples of standing committees:
- Business Advisory Committee.
- Committee on Petitions.
- Committee of Privileges.
- Rules Committee.
Jurisprudence, Interpretation & General Laws Questions and Answers
