Constitutional Law


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Q. Explain the emergency provisions of the constitution. What do you understand by proclamation of Emergency? Describe various types. What are the effects of emergency on fundamental rights? What are the effects of emergency arisen out of the failure of the constitutional machinery in a state? What changes have been made by the 44th amendment regarding emergency provisions?

Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle special situations. In emergency, the center can take full legislative and executive control of any state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why academicians are hesitant to call Indian constitution as fully federal. Emergency can be of three types - Due to war, external aggression or armed rebellion, failure of constitutional machinery in a state, or financial emergency. However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third case it is called "Proclamation of Financial Emergency:

Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union Cabinet.  Such a proclamation must be placed before each house of the parliament and must be approved by each house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.

  • In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
  • Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency
The following are the effects arising out of proclamation of emergency in art 352.
Art 353
  1. executive power of the Union shall extend to giving directions to any state.
  2. parliament will get power to make laws on subjects that are not in Union list.
  3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.
Art 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Art 358
While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency.

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359
This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

Art 358 Art 359
Freedoms given by art 19 are suspended.  Fundamental rights are not suspended. Only the courts cannot be moved to enforce fundamental rights.
Any actions done or omitted to be done cannot be challenged even after emergency.  Any action done by the legislature or executive can be challenged after the suspension is over.
Art 19 is suspended for the period of emergency.  Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension.
Effective all over the country. May be confined to an area.


Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.

Provisions in case of failure of constitutional machinery is States

Art 356
says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state is cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all or any of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state except the legislature of the state. The power of the legislature of the state shall be exercised by the authority of the parliament.
Under this article, president can also make such incidental and consequential provisions which are necessary to give effect to the objectives of the proclamation. This includes suspension of any provision of this constitution relating to any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356
  • parliament can confer upon the president the power of legislature of the state to make laws or the power to delegate the power to make laws to anybody else.
  • the parliament or the president can confer power or impose duties on the Union or Union officers or Union authorities.
  • president can authorize the expenditure from the consolidated fund of the stat pending sanction of such expenditure by the parliament.
Important instances of invocation of Art 356
This article has been invoked over a hundred times.
  1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..
This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In this case, SC held that the the decision of the president is not only dependent on the report of the governor but also on other information. The decision is entirely political and rests with the executive. So it is not unconstitutional per se. However, courts can validate the satisfaction of the president that it is no mala fide.

  1. Dissolution of 9 state assemblies in 1980 by Congress party govt.
  2. Dissolution of BJP govt in MP, HP, and Raj. in 1992.
This was challenged in the case of SR Bommai vs Union of India AIR 1994. In this case SC held that secularism is a basic feature of the constitution and a state govt. can be dismissed on this ground. It further observed that no party can simultaneously be a religious party as well as a political party.

Financial Emergency

Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India or the credit of India or of any part of India is threatened, he may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the center.  
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment. The following are important points of this amendments-
  • "Internal disturbance" was replaced by "armed rebellion" under art 352.
  • The decision of proclamation of emergency must be communicated by the Cabinet in writing.
  • Proclamation of emergency must be by the houses within one month.
  • To continue emergency, it must be re approved by the houses every six month.
  • Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10 of the members of a house can move such a resolution.
  • Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All other laws can still be challenged if they violate art 19.
  • Art 359, under this article, suspension of the right to move courts for violation of part III will not include art 20 and 21. 
  • Reversed back the term of Lok Sabha from 6 to 5 years.



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Q. What do you understand by fundamental rights? Discuss with respect to Indian Constitution.

The general concept of fundamental rights
The rights that are basic to the advancement of the human race are called Fundamental Rights. All other rights are derived from these rights as direct implications or application of their principles. It is an accepted belief among the philosophers that these rights are nothing but "natural human rights", which distinguish between humans and animals and which have been so instrumental in bringing humans from the stone age to the present age. Among all, the right to life and liberty is considered to be the most basic.

The history of  legally enforceable fundamental rights probably starts from Magna Carta, which was a list of rights extracted from Kind John by the people of England in 1214 AD.  This was followed by the "Bill of Rights" in 1689 in which Englishmen were given certain civil and political rights that could not be taken away.  Later on the French compiled the  "Declaration of the rights of Man and of the Citizen" after the French Revolution in 1789.

The most important advancement in history of fundamental rights occurred when the USA incorporated certain fundamental rights in the form on "Bill of Rights" in their constitution by the way of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The protection by the constitution meant that these rights could not be put to vote and were not dependent on the whims of politicians or of the majority. 

After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable rights available to their citizens.

Need for Fundamental Rights
1. Rule of Law
These rights are a protection to the citizens against the govt and are necessary for having the rule of law and not of a a govt or a person. Since explicitly given by the constitution to the people, these rights dare not be transgressed by the authority. The govt. is fully answerable to the courts and is fully required to uphold these rights.

2. First fruits of the freedom struggle
After living in subjugation for such a long time, people had forgotten what is meant by freedom. These rights give people hope and belief that there is no stopping to their growth. They are free from the whims of the rulers. In that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.

3. Quantification of Freedom
Even citizens in gulf countries or communist countries are free. Then how is our freedom different from theirs? The list of fundamental rights is a clear measurement for how free we really are.  As an example, every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our right to speech and expression allows us to freely criticize the govt. but this is not so in China.

Fundamental Rights in India
Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by the people of this country since the vedic ages and are calculated to protect the dignity of individual and to create conditions in which every human being is able to develop his personality to the fullest. These rights are necessary for a human being for attaining full social, intellectual, and spiritual status.

These rights can be grouped into 6 categories -

1. Articles 14-18 Right to Equality
Art. 14 ensures that all citizens are treated equally. It enshrines the principle of "Equality before law and Equal protection of law".  However, this brings us to an important question. Should people living in unequal circumstance be treated equally? In Indian Constitution, the answer is a resounding no. We have adopted the mantra of "equal treatment under equal circumstances". This is reflected in Art 15, which, while prohibits the state from discriminating between the citizens only on the grounds of Caste, Race, Religion,  Sex, and Place of Birth or all of them[ Art 15(1) ], also allows the state to make special provisions for Women and Children [Art 15(3)] and for Backward classes [Art 15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that used to be given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of India SC AIR 1951 are important cases that illustrate the concept of equal protection of the laws. In these cases, the SC of both the countries held that all persons similarly circumstanced should be treated equally. Only like should be treated alike and thus a reasonable classification can be done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal pay for equal work) illustrate the principle of equality.
The SC judgment in Indra Sawhney vs Union of India AIR 1993 incorporates the element of fairness in dealing with inequalities in the society, while balancing the aspirations of the socially forward classes.

2. Artticles 19-22 Right to Freedom
A citizen of India is given freedom of Speech and Expression, freedom of Assembly, freedom of Association, freedom of Movement, freedom of Residence, and Freedom of Profession and Occupation through Art. 19.
Art. 20 gives protection with respect to conviction of offenses. This includes the principles of
  • ex-post facto law : A person can only be with charged with an offence of an action if the said action was illegal as per the law of the time when the action was committed. 
  • double jeopardy: A person cannot be charged with the same crime if he has already been produced before the court and a verdict has been pronounced.
  • self incrimination: A person will not be forced to testify against himself.
Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark case that gave wide interpretation of this right. In this case the SC held that his right  is not only about having any kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual. This encompasses several  rights such as right to travel  abroad ( Satvant Singh v Ass. Passport Office AIR 1967) and  right to pollution free water and air ( Subhash Kumar vs State of Bihar AIR 1991) . Further, Constitution Amendment Act 86, 2002 makes free and compulsory education to children under 14 a fundamental right.
Art. 22  gives protection from illegal arrest or detention. It provides that a person must be informed of the grounds of arrest as soon as possible,  be allowed to speak to a lawyer of his choice, and be produced before a magistrate within 24 hrs of detention. 

3. Art 23-24 Right Against Exploitation
Under Art. 23, the govt. has banned trade in human beings. This includes flesh trade and forced work or work  without pay (begar system).
Art. 24 prohibits children from being employed in factories and hazardous conditions.

4. Art 25-28 Freedom of Religion
Unlike several countries of the world, we are free to practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to establish and maintain institutions for religious and charitable purposes. It also gives the right to manage our own religious matters. Art. 27 provides tax benefits for promotion of religion and art. 28 prohibits religious teaching in govt and govt aided schools. 

5. Art 29-30 Cultural and Educational Rights
Art. 29 allows any section of citizens living anywhere in India who have a distinct language, script, or culture, to preserve the same.  Art. 30 allows minorities to establish and maintain educational institutions. To prevent discrimination, however, art 29(2) prohibits them from discrimination in admissions only on the grounds of  religion, race, caste, language, or any of them.

6. Art 32 Right  to Constitutional Remedies
Dr. Ambedkar, the chief architect of our constitution, has said that Article 32 is the soul of our constitution. All the talk of rights is useless if there is no recourse against their transgression. Under this article, a citizen is free to go to the Supreme Court  for violation of his rights.

Scope of Fundamental Rights
Widest Possible Interpretation
SC in A K Gopalan vs State of Madras AIR 1950 had held that the various rights given under part III talk about different things and are not be interlinked. This view, however, has been rightly rejected by the SC in Menaka Gandhi vs. Union of India AIR 1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in the widest possible manner and it should not attenuate these rights by being confined to their narrow definition. All these rights are not mutually exclusive and form an integrated theme of the constitution. J Beg said that  their waters must mix to form a grand flow of unimpeded and impartial justice.  Thus, any law that takes away the life or liberty of a person, must also satisfy the test of reasonableness under art. 14.

Natural Justice and Due Process
In Menaka Gandhi's case, SC has held that any law that takes away the life or liberty of a person under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice, which is a basic component  of fair procedure under Art. 21. While Art 21 does not contain the "due process" clause of the American Constitution, the effect is the same because natural justice is a distillate of due process i.e. natural justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus
The case of Sunil Batra vs Delhi Admin AIR 1980 has given tremendous power to the writ of Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even prisoners are humans and must be treated with dignity. They cannot be stripped off of their fundamental rights, thus menial or forced work without pay, solitary confinement, degrading punishment, is not allowed. This case has also allowed people who are not directly involved but have any kind of interest to approach the court. The objective is to remove injustice wherever it is found in the society.


Absoluteness of Fundamental Rights
"Your freedom ends where my freedom starts" is a well known saying. The constitution gives you the right to propagate your religion. But does that mean you should force me to hear religious activities over the loudspeaker? The constitution gives you the freedom of speech and expression. But does that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand and specifies the limits of these rights. These rights extend only until they do not affect security of the state, public order, and social decency. The constitution allows reasonable restrictions to be placed on these rights. SC in A K Gopalan vs State of Madras 1950 has also held that Fundamental Rights are not absolute.

Suspension of Fundamental Rights
Under art 358, freedoms given under art 19 are suspended when the president proclaims emergency. Further, under art 359, president may suspend the right to move courts for violation of rights given in part III except art 20 and 21.

Critical Analysis
Indian Constitution was written after a through analysis of existing constitution of the world. The framers of the constitution have incorporated the good things from all the places. As such it is more fair and consistent than religious books. It is for the foresight of the framers of the constitution that the country is integrated and has progressed. While the framers had  thought about a lot of things, the one thing that they probably missed was the safeguards against the degrading morality of politicians.



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Q. What is the nature of Indian Constitution? On what grounds is its spirit of federalism challenged? Mention its important features.

Typically, democratic constitutions are classified into two categories - Unitary and Federal. In a unitary constitution, all the powers are concentrated in a central authority. The states or the constituents of the country are subordinate to such central authority. In a federal constitution, powers are distributed among the center and the states. States are not subordinates of the center. According to Prof. Wheare, the constitutions of USA, Australia, and Switzerland are prime examples of a federal constitution.
Dr. Ambedkar has categorically said in Constituent Assembly discussions that notwithstanding certain provisions that centralize the powers, Indian Constitution is essentially federal. Prof. Wheare and some other academicians, however, are hesitant in calling it a federal constitution and prefer to term it as "quasi-federal" or "federal with strong centralizing tendency".

Though, it should be noted that even prof. Wheare accepts the existence of certain provisions in the American constitution, such as dependence of Senate on States, that are contrary to federal character. However, he says that while the principles of federalism should be rigid, the terminology of "federal constitution" should be wide. A constitution should be called federal if it displays federal character predominantly.

The following are the defining features of federalism.

1. Distribution of Powers between center and states.
2. Supremacy of the Constitution.
3. Written Constitution.
4. Rigidity of the Constitution.
5. Independent Judiciary.

All the above characteristics are present in the Indian Constitution. However, there are certain provisions that affect its federal character.

1. Appointment of the Governor of a State
Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President. Further, that the Governor can send the laws made by the state for assent from the President, who can veto the law.
It should be noted that Governor is only a ceremonial held and he works on the advice of council of ministers. In past 50 yrs, there has been only one case (re Kerala Education Bill), where amendments to a state law were asked by the center and that too after the opinion of the Supreme Court. Thus, it does not tarnish the federal character and states are quite free from outside control.

2. Power of the parliament to make laws on subjects in the State list.
Under art 249, center is empowered to make laws on subjects in the state list. On the face of it, it looks a direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. It should be noted that Rajya Sabha is nothing but the representative of the states. So an approval by Rajya Sabha means that States themselves are giving the power to the center to make law on that subject.

3. Power to form new states and to change existing boundaries
Under Art 3, center can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA.

4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations :
  1. An act of foreign aggression or internal armed rebellion (Art 352) 
  2. Failure of constitutional machinery in a state (art 356)
  3. Financial Emergency (art 360)
In all the above cases, an elected state government can lose control of the state and a central rule can be established. In the first case, it is very clear that such a provision is not only justified but necessary to protect the existence of a state. A state cannot be left alone to defend itself from outside aggression. In the third case also, it is justified because a financial emergency could cause severe stress among the population, plunge the country into chaos and jeopardize the existence of the whole country. Such provisions exist even in USA. The second provision is most controversial. It gives the center the power to take over the control of a state. However, such an action can be taken only upon the advice of the governor and such an advice is not beyond the purview of the Supreme Court. In a recent case, Supreme court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.

Thus, it can be safely said that Indian Constitution is primarily federal in nature even though it has unique features that enable it to assume unitary features upon the time of need.  

Features of Indian Constitution
Constitution was written by a committee headed by Dr Ambedkar. Took 2 yrs, 11 mos, 18 days. Adopted on 26th Nov (celebrated as Law Day), enforced fully on 26th Jan.
  1. Longest written constitution - 447 articles, 26 parts, 12 schedules. Original US constitution had 7 articles and Australia had 128.
  2. Establishment of sovereign, socialist, secular, democratic, republic.
  3. Parliamentary form of govt.
  4. Unique blend of Federal and Unitary features
    1. Independent and supreme Judiciary - Keshavand Bharati vs State of Kerala & L Chandra Kumar vs Union of India
    2. Advisory Jurisdiction of SC - Art 143 - Does not exist in US constitution.
    3. Rigidity and flexibility 
    4. Emergency Provisions
    5. Single Citizenship
    6. Single Electorate / Adult Suffrage
  5. Positive Secularism - St. Xavier's College vs State of Gujarat , S R Bommai vs Union of India, Aruna Rai vs Union of India
  6. Indian Socialism - Combination of Marxist and Gandhian ideology. Right to work is absent.
  7. Economic Democracy
  8. Other features
    1. Fundamental rights - J Bhagvati in Menaka Gandhi vs Union of India 
    2. Directive Principles - Unnikrishnan vs State of AP - Directive Principles are as good as fundamental rights.
    3. Fundamental Duties



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Q. How is the independence of the judiciary ensured? Describe the various jurisdictions of the Supreme Court of India. Explain the writ jurisdiction of a High Court. What is meant by Judicial Review?

India has adopted a federal constitution with distribution of powers between center and the states.  An independent judiciary is the essence of the federal character of the constitution. It is imperative that the judiciary be impartial and independent of the legislative and executive branches of the country to ensure the functioning of the government in accordance with the constitution. The supreme court, being the guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that ensure the independence of the judiciary. However, owing to the nature of Indian politics, there have been several attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence.  To understand the dynamics between the govt. and the judiciary, we need to look at the provisions present in the constitution.

Composition of the Supreme Court
Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number of other judges has now been increased to 25.

To be appointed as a judge of the supreme court, a person must be a citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.

Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word "consult" does not mean that the president is bound by the advise. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants.

Judges Transfer Case 1
In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word 'consultation' as determined in the Sankalchand's case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration.  In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive. 

Judges Transfer Case 2
This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.

Judges Transfer Case 3
A controversy arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.

As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary.
The following are other provisions that work towards the same goal:

1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a presidential order passed with a simple majority as well as  by 2/3 majority of each house of the parliament present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove were started to Justice V Ramaswamy, but  the motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be the prime mover of the action against erring judges.  Thus, after this case, action against judges was allowed only  through in-house procedures of the judiciary.

2. Salary
The salary of the judges cannot be changed after the appointment for their disadvantage.

3. Jurisdiction of the courts
The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.

4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the discussion about his removal.

5. Art 129 and 215
Power to punish for its contempt.
The SC and the High Courts have the power to punish anybody for civil and criminal contempt of itself under art 129 and 215.

6. Art 50 Separation of judiciary from executive
Art 50 urges the state to take steps to separate the judiciary from the executive in the public service of the state.

7. Appointment of the judges only after consultation with legal experts.
As discussed above, the executive does not have unlimited power over appointment of judges.

8. Art 124(7) Prohibition on practicing before any court
Art 124 prohibits a retired judge from appearing and pleading before any court or tribunal. 

Jurisdictions of Supreme Court

Art 129 Court of Record
SC is a court of record and has all the powers including power to punish for civil or criminal contempt of court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish for contempt of any subordinate court in India as well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for failing to deliver on his promise not to allow any construction in disputed area.

Art 131 Original Jurisdiction
The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on another.
c.) two or more states.

Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a question of law or fact on which a legal right depends. Further, the suit cannot be because of any commercial relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover damages under Railway Act is not maintainable. SC's original jurisdiction is not attracted for ordinary commercial disputes.

The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that  was executed before the commencement of the constitution, and which is still in operation or provides that the jurisdiction of SC does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to use, distribution, or control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.


Enforcement of Fundamental Rights Art 32
SC is the guardian of the constitution. It is the supreme defender of the people's fundamental rights. This position has been enforced by Art 32 that given any citizen to petition the SC if his fundamental rights are violated. The SC is empowered to give directions, orders, or writs including the writs of habeas corpus, mandamus, prohibition, and certiorari for the enforcement of the rights given in part III.
L Chandra Kumar vs Union of India AIR 1997 -  Power of judicial review vested in HC by art 226 and in SC by art 32 is a basic feature on the constitution and cannot be amended.

Art 132 Appellate Jurisdiction  - Constitutional
The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision of the lower courts.  Art 132(1) allows an appeal to be filed in the SC if  three conditions are satisfied:
1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 -  If there is a difference of opinion among High Courts and if there is no direct decision by SC on that point, it is a substantial question of law that can permit appeal in SC.

Art 133 Appellate Jurisdiction  - Civil
An appeal shall lie to SC from any judgement, decree, or a final order in civil proceedings of a High Court only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by the SC.

Madan Gopal vs State of Orrisa 1956 -  The pecuniary value of a dispute is immaterial. There may be matters which cannot be measured in money but the decision could have a far reaching effect and such cases can be permitted to be appealed in SC.

Art 134 Appellate Jurisdiction  - Criminal
An appeal shall lie to SC from any judgement, decree, or a final order in criminal proceedings of a High Court in two ways - with or without a certificate from High Court.
1. Without Certificate
    a) If the High Court, on appeal, has reversed an order of acquittal of an accused and sentenced him to death
    b) if the High Court has withdrawn a case before itself from any subordinate court and in such a case has convicted the accused and sentenced him to death.

2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.

Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for issuing certificated under 134A. A mere question of fact is not enough but it must also involve a substantial question of law.

Art 135 Federal Court's (the one that existed before the commencement of the constitution) jurisdiction to be exercised by the SC.

Art 136 Special Leave to appeal by SC
Under this article, the SC is authorized to grant, on its discretion, special leave to appeal from any judgement, decree, determination, sentence, or order, in any case or matter, passed or made by any court or tribunal in the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against the acquittal even if the state govt. hasn't. SC cannot refrain from doing its duty just because a private party and not the state has appealed against the order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary power is to be used - Since the power is exceptional is very wide, it must be used sparingly and in exceptional circumstances. Beyond this point it is not possible to fetter the exercise of this power by any set formula.

Art 137 Power to review its judgement.
Under exceptional circumstance, the SC may review its judgement.

Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from High Courts if it feels that these cases involves the same or similar question of law that is of general importance.
Union of India vs SGPC 1986 -  SC may transfer a case from one High Court to another under art 136 if it feels that the case cannot be dealt with fairly in one High Court due to exceptional circumstances.

Art 143 Advisory Jurisdiction
Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is likely to arise and that the question is of such public importance that expedient opinion of the SC is required, then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under art 131.
There is no similar provision in the American constitution. In US, the court can give ruling only on concrete cases.

In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is not bound to give its opinion. If it has a good reason, it may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of Karnataka to not follow the order of the tribunal to release water to TN, is unconstitutional.

In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary, and favors a particular religion.

Art 141
Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and cannot be used to perpetuate errors.

Writ Jurisdiction of High Courts

The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any sphere. Art 226 provides that notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises 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, prohibition, 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.
It is important to note that the power is not only to enforce fundamental rights but for any other purpose, which makes its powers even wider than Supreme Court. Here, any other purpose means any legal right of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that the power of judiciary over legislative action vested in a High Court is a basic feature of the constitution and cannot be removed through constitutional amendment.

Locus Standi : Who can apply
In general, the person whose constitutional right or legal right has been infringed has the right to apply. However, due to judicial activism, the "doctrine of sufficient interest" has originated. According to this, any person who is even remotely affected can petition the High Court. It also allows public spirited persons to file a writ petition for any person or class if that person or class is not able to do so himself due to poverty or any other reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an unregistered trade union has right to file a petition for redressal of a common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC held that an advocate of Cal. High Court has sufficient interest in making a public place like a railway station a safe place and so she has right to demand compensation for the bangladeshi woman gang raped by railway employees.

Scope of Art 226
In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226 confers wide powers to remedy injustice where ever it is found. Art 226 says, "...or writs or the kind of...", which means that it is not limited only the mentioned types of writs. It can issue orders orders of any kind that the situation may require. Thus, it makes the scope of Art 226 a lot wider than art 32.

Court Martial and art 226
In a significant case (which case?), Delhi High Court held that section 18 of India Army Act is not beyond the scope of High Court. While High Court may not interfere in the sentence awarded in a court martial, such an order cannot be arbitrary and mala fide. Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held that court should not interfere only on compassionate grounds. Only when there is a perverseness or gross injustice on the face of it, there can be judicial review.

Dispute between private parties - No Jurisdiction
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the extraordinary jurisdiction of High Court cannot be exercised in the private party disputes relating to property rights unless there is a violation of statutory rights by statutory authorities.

Natural Justice
Natural Justice is not exclusively the principle of administrative law. The courts are also bound by the same principle. Every administrative action must be supported by reasons. The reasons must be recorded to ensure that there is no arbitrariness.

Territorial extent of writ jurisdictions
Art 226 imposes two limits on HC's writ. First, it can run only in the territorial jurisdiction of the High Court and secondly the person or authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that Madras High Court cannot issue a writ to ECI because it is based in New Delhi and so is out of its jurisdiction. The law commission recommended that these are serious limitations and they defeat the very purpose of this article. So it was amended by 15th amendment in 1963. High Court can now issue a writ even to a central authority if the cause of action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in the petition did not disclose that a part of the cause of action arose in the jurisdiction of Calcutta and so High Court does not have any jurisdiction to entertain the writ petition.

Discretionary Remedy - Not to be exercised if alternate remedy is available
The remedy available in 226 is a discretionary remedy and the High Court has the discretion to accept or refuse a petition. In general, if a remedy is available elsewhere, writs under 226 are discourages. However, this does not mean that any remedy available can be a ground for not entertaining the petition under 226. The remedy must be effective and sufficient. In the case of Vellaswamy v IG Police, Madras 1982, SC held that the remedy under Police Rules of TN was not sufficient and so High Court was wrong in dismissing the petition.

Effect of Laches or delay
Remedy under 226 should be sought with in a reasonable time. However, High Court may accept a petition is there is a reasonable cause for delay in seeking justice. Poverty has been held to be reasonable ground.

Judicial Review
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this case, justice John Marshall held that judiciary has inherent power to review actions by legislature even if no explicit provision is given in the constitution.

Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of law instead of rule on men to the citizens. However, the rule of law will be rendered useless if the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is called Judicial Review.

Art 13 says:
  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
  3. In this article, unless the context otherwise requires,—
    • (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
    • “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
  4. Nothing in this article shall apply to any amendment of this Constitution made under article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC by art 32 and High Court by art 226 over legislative action is a basic feature.

Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention act is void and not the whole act.

Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post - constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post constitutional law as well.

Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive right.

Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made under legislative power and not amendments.




READ DISCLAIMER



Q. What do you understand by freedom of speech and expression? What restrictions can be applied on it?

Freedom of speech and expression is the most basic of all freedoms granted to the citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper vs State of Madras AIR 1950 SC that freedom of speech and that of the press lay at the foundation of a democratic society, for without free political discussions, no public education is possible, which is so important for the proper functioning of the govt.
It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Th us, the freedom of publication is also covered under freedom of speech.  Freedom of speech serves 4 purposes -
  • allows an individual to attain self fulfillment.
  • assists in the discovery of truth.
  • it strengthens the capacity of a person to make decisions.
  • it facilitates a balance between stability and social change.
This right is not only about communicating your ideas to others but also about being able to publish and propagate other people's views as well. Thus, freedom of speech and expression is linked to the people's right to know. Freedom of speech and expression is a broad term and encompasses several things. The following are important cases that have determined the extent of this right from time to time.

Right to Know

Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to know news and information about the functioning of the govt. is included in the freedom of press.

Union of India vs Association for Democratic Reforms SC AIR 2002 : SC held that people have right to know about the candidate before voting. Thus, the law preventing  the Election Commission from asking for a candidates wealth, assets, liabilities, education and other such information, is invalid.

Right to tell and propagate


LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote an article in LIC's magazie about the problems with LIC that affected policy holders. LIC published a response to that but did not give a chance to public a rejoinder. SC held that LIC being a State as per Art 12, must publish his response. It also held that it does not mean every body has a right to publish in a magazine and this right should be determined on a case by case basis.

Secretary, Ministary of I & B vs Cricket Association of Bengal SC AIR 1995 : In this historic judgment, SC has held that one has the right to publicize his expression as well. A game of cricket is an expression and the organizers have a right to propagate it every where in the world. So Doordarshan must provide its uplinking facilities to CAB for transmitting the signals out of country. Art 19 (2) does not allow restrictions on 19 (1) (a) on the grounds of creating monopoly of the govt.

Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that commercial advertisement is protected under freedom of speech.

Restrictions on Freedom of Speech and Expression

Every human desires to do many things. However, in a civil society such desires must be curbed to certain extent in respect of similar desires of other human beings. Thus, no right is an absolute right.  Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the operation of any law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on exercise of the right conferred by the said clause in the interest of  -
  • sovereignty and integrity of the country.
  • security of the state
  • friendly relations with foreign states.
  • public order
  • decency and morality
  • defamation
  • contempt of court
  • incitement of an offence.
In the original version of this article several grounds such as public order, friendly relations with foreign states, incitement of an offences were not there. After the historic judgement in the case of Romesh Thaper vs State of Madras SC AIR 1950, these grounds were added. In that case, Madras Govt. prevented the entry an circulation of the new paper 'Cross Roads' published by  Romesh Thaper, in the state of Madras. It argued that the circulation of the paper affects public safety. However, SC held that the public safety falls outside the scope of 19 (2) and thus the govt action was invalid. This decision prompted the govt. to amend the constitution to include additional grounds as mentioned above.

It is important to note that the current clause mentions the words "reasonable  restrictions". Thus, any law restricting the freedom of speech and expression must satisfy the grounds mentioned in 19(2) and must also satisfy the criteria of reasonableness. Reasonable restriction means intelligent care and discussion that the restriction is not beyond what is required for public interest. It should not be arbitrary and excessive. Further, the restriction can only be imposed by law and not by executive or departmental decision.

Test of reasonable restrictions

Spanning several cases, SC has laid down the following guidelines :

  1. It is the courts and not the legislature that will decide whether a law is reasonable or not.
  2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is required in public interest. The time and duration of the restriction cannot be unlimited.
  3. There is no fixed standard for reasonableness. Each case must be decided on its own merits.
  4. The restriction must be reasonable from substantiative as well as procedural stand point.
  5. Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable.
  6. The test of reasonability must be objective in the sense that it does not matter what a Judge or Court thinks what is reasonable but what a normal reasonable person would think.
  7. The restriction must have a relation to the object that is sought through the law and must not be excessive.
  8. It is the reasonableness of the restriction that a count has to determine and not the reasonableness of the law itself.
  9. Restriction may amount to prohibition.

The following are important cases that have attenuated the scope of this right.

CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that bundhs called by various political parties are illegal because they prevent the citizens from exercising their right to freedom. I

Ranjit Udeshi vs State of Mah. AIR  1965 SC : In this case, a bookseller was prohibited from selling book containing obscene material.

Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case, SC held that obnoxious and fraudulent advertising is not protected under freedom of speech.

Critical Analysis
Freedom of speech and expression is indeed the most important of all freedoms. However, today, this right is being routinely suppressed under the guise of morality and decency or public order. Even a slight criticism of a public leader or past king causes the political parties to involve in damage of public property. Any book that talks about problems in a religion is banned in the name of public order. It is extremely unfortunate that the executive, instead of the upholding peoples' right to speech and expression by preventing unscrupulous element from hurting the author, is more interested in stifling the voice by banning their works. By doing this they are not doing their job responsibility.