CONSTITUTIONAL LAW
1) Rule of law:
Rule of law means no man is above the law and every person is subject to the jurisdiction of the courts. Under rule of law it is required that no person be treated in a harsh or discriminatory manner. The rule of law as embodied in Art 14 is considered the ‘basic feature’ of the Constitution and hence it cannot be changed by an amendment under Art 368. (Indira Gandhi v Raj Narain AIR 1975 SC 2299)
Professor Dicey called guarantee of equality before law as rule of law in England and he gave three meanings of rule of law. The first being absence of arbitrary power or supremacy of the Law, second being equality before the law and the last being that the constitution is the result of the ordinary law of the land. While the first two meanings are applicable to Indian legal system the third one does not apply to India as the source of rights of individuals is the Constitution of India.
Exception to the rule of law:
The rule of equality is not absolute rule there are many exceptions to this rule which are:-
1) ‘equality before law’ does not imply that power of private person is equal to the power of public person. For example a police officer has power to arrest while private people do not have this power.
2) It does not prevent certain classes of people to be subjected to certain kind of rules. For example armed forces people are subjected to their own rules and laws and are immune from the jurisdiction of ordinary courts. Also for example the President and governors of the States have immunity from the court proceedings while they are in office. Similarly the members of parliament have protection for whatever they discuss within the House. (parliamentary privileges)
Important cases under rule of law:-
Case summary:
Indira Gandhi v Raj Narain AIR 1975 SC 2299
This case is important for both separation of powers and rule of law.
Facts:
Raj Narain had filed complaint against Mrs Indira Gandhi in Allahabad HC on corruption charges in election process. On June 12th, 1975, Justice Jagmohanlal Sinha of the Allahabad High Court, found the Prime Minister guilty on the charge of misuse of government machinery for her election campaign. The court declared her election “null and void” and unseated her from the Lok Sabha. The court also banned her from contesting in any election for an additional six years. Some serious charges such as bribing voters and election malpractices were dropped and she was held guilty on comparatively less important charges such as building of a dais by state police and provision of electricity by the state electricity department and height of the dais from which she addressed the campaign rally. Some of these charges were in reality an essential part for the Prime Minister’s Security protocol. In addition, she was held responsible for misusing the government machinery as a government employee.
Issues:-Whether Article 329-A (4) inserted by 39th Constitutional Amendment Act is violates the basic structure of Constitution?
Judgement:
The Court held that the basic structure of equality is violated by providing that those who hold office of Prime Minister and Speaker are above law although election laws were there. The persons who will hold the office of Prima Minister and Speaker have been free from those laws and they are not under rule of law and there is no judicial review with regard to their elections.
With regard to separation of powers the court observed that:-
The contentions of the appellant were that the 39th Constitution Amendment affects the basic structure of institutional pattern adopted by the Constitution. The basic feature of separation of powers with the role of independence of judiciary is changed by denying jurisdiction of this Court to test the validity of the election. The essential feature of democracy will be destroyed if power is conceded to Parliament to declare the elections void according to law under which it has been held to be valid. This is illustrated by saying that Parliament can by law declare the election of persons against the predominant ruling party to be void. If the majority party controls the legislature and the executive, the legislature could not have any say as to whether the executive was properly elected. Free and fair elections are part of democratic structure and an election which has been held to be invalid for violation of the principles of free and fail elections and by commission of corrupt practices is validated. It was held in the case that amendment was within the unquestionable powers of Parliament to legislate, either prospectively or retrospectively, with regard to election matters. And that it cannot be interpreted as an attack on free and fair elections, which, according to the learned Counsel for the election-petitioner, is part of the basic structure of the Constitution. It was also clearly stated in the case that Courts cannot take upon themselves the task of laying down what electoral laws should be. The law makers, assembled in Parliament, are presumed to know and understand their business of making laws for the welfare and well-being of the mass of people of this country, for the protection of democracy and of free and fair elections, in accordance with the needs of the democratic process, better than Courts know and understand these. It is only where a piece of legislation clearly infringes a Constitutional provision or indubitably overrides a Constitutional purpose or mandate or prohibition that Courts can interfere. It was also held that the theory of basic structures or basic features is an exercise in imponderables. Basic structures or basic features are indefinable. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State legislatures of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers. The learned judges in the case recognized the Doctrine and stressed on its importance in the following words “It is true that no express mention is made in our Constitution of vesting in the judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognized in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary.”
The main ground on which the court held the amendment ultravires was the declaration by the constituent assembly of the election of PM as not void. According to the court the parliament had discharged judicial function which according to concept of separation of power should not be done.
2) Separation of Powers:
The exercise of governmental power which is essential to smooth functioning of the society has to be controlled in order that it does not itself be destructive of the values it is intended to promote. Separation of powers emerged for the 1st time in 17th century in England. In the upheaval of civil war it was seen as most important theory as mixed system of government of King Lord and Commons lost its relevance. The concept can be understood to mean existence of three distinct powers/wings the legislative, judiciary, and the executive for the smooth functioning of a nation each having its own distinct role/function/authority in the society. Separation of power is essential for establishment and maintenance of political liberty that the government be divided into three branches or department, the legislature, executive and judiciary. To each of these wings there are distinct functions of government assigned. Each of the branch/wing has to be confined to the exercise of its own functions and not allowed to encroach upon the functions of other branches. Further the persons who compose these three wings must be kept separate and distinct and no one should be allowed to be a member of more than one branch at the same time. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State. Therefore the concept of separation of powers deals with mutual relations among three organs of the government namely legislative, executive and judiciary. The doctrine tries to bring exclusiveness in functioning of the three organs and hence ideally a strict demarcation of power is sought to be achieved by this doctrine. The principle signifies that one person or body of persons should not exercise all the three powers of the government.
However each organ while performing its own functions tends to interfere in the sphere of other branches as a strict division of functions seems impossible in their dealing with general public. The doctrine was first started in US and forms the basis of American constitutional structure as Art 1 vests legislative power on Congress while Art 2 vests executive power in President while art 3 vests judicial power in SC.
Constitutional provisions for Separation of power in India:-
Constitution of India: “Article 73. Extent of executive power of the Union. – (1) subject to the provisions of this Constitution, the executive power of the Union shall extend –
(a) to the matters with respect to which Parliament has power to make laws…”
“Article 162. Extent of executive power of the State. - Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws….”
Note: The theory of separation of powers envisages: (i) personnel separation; (2) noninterference in the working of one organ by another; and (3) non-usurpation of powers of one organ by another organ.
Art 50 puts an obligation on state to take steps to separate judiciary from executive but as it is DPSP so its unenforceable.
In India separation of functions is followed not separation of powers. There exists a distinction between ‘essential’ and ‘incidental’ powers of an organ. So one organ cannot claim the powers which belong to other organ as it violates the principle of separation of power.
Instances of blurring of separation of powers:-
Important cases:
Case summary:-
In re Delhi Laws Act AIR 1951 SC 332
Facts:
The case came up as a result of a decision of the Federal Court, as doubts were entertained with regard to the validity of laws [Section 7 of the Delhi Laws Act, 1912, and Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947] delegating legislative powers to the executive Government and the President of India made a reference to the Supreme Court under Art. 143 (1) of the Constitution for considering the question whether the above-mentioned sections or any provisions thereof were to any extent, and if so to what extent and in what particulars, ultra vires the legislatures that respectively passed these laws, and for reporting to him the opinion of the Court thereon:
The court held that the theory of separation of powers is not a part and parcel of our constitution. But it was also held that except for exceptional circumstances like in Art 123A, 357 it is evident that the constitution intends that the powers of legislation shall be exercised exclusively by Legislature.
On the question that whether the amending power of Parliament exist and whether Art 368 confers an unlimited amending power on Parliament the SC held in Keshavananda Bharti case that amending power was subject to the basic structure of the constitution and amendment of basic structure cannot be done. In the same case J.Beg had observed that separation of powers is a part of basic structure and none of the three branches can take over the functions of the other and the scheme is not altered even by resorting to Art 368.
3) Salient features of Indian Constitution:
The salient features of Indian Constitution are as follows:-
a) It is the lengthiest constitution in the world, and the most detailed written constitution. Originally it consisted of 395 articles divided in 22 parts and 8 schedules but after 92nd amendment currently it has 444 articles divided in 26 parts and 12 schedules.
(64 articles have been added since 1950 and the recent ones to be added are Art 21 A by 86th Amendment, Art 338 A by 89th Amendment, and Art 361 B by 91st Amendment.)
b) The constitution contains Fundamental rights (part III-These rights act as prohibition against act of the state towards individuals and the SC and HC have been given the power to issue writs in nature of habeus corpus, quo warranto, certiorari, mandamus as effective remedies) and duties (10 fundamental duties introduced by 42nd amendment) along with DPSP which have been incorporated for the state to achieve ideals of welfare state.
c) Establishment of Sovereign, Socialist, Secular, Democratic, Republic:- The preamble to the constitution contains all these words to emphasize the independence of the country wherein the state has its own government which gets elected by the citizens and there is no recognized religion of the state and the country follows a mixed economy. Further ‘justice, liberty, equality and fraternity’ are all mentioned in the preamble as objectives to be achieved. Finally republic signifies that there exists a elected head of the state who will be executive head.
d) Though the constitution is federal and has powers divided between centre and state but it provides single citizenship for entire country. There does not exist state citizenship as opposed to US.
e) An independent judiciary has been provided by the constitution with the power of judicial review.
f) Under the constitution every citizen above the age of 18 has the right to elect representatives to the legislature. Art 326 provides for Adult suffrage.
g) At the time of emergency the constitution acquires unitary character and the normal distribution of powers between the state and centre undergoes a change. The union has power to legislate on subjects in the state list and also the financial relations between the state and the centre gets altered.
h) The Indian constitution is sufficiently flexible as there are only few provisions which need a special majority to be amended.
i) The constitution following the British model has established a parliamentary form of govt both at the centre and at the state level. While the president is the executive head the real powers lie with the Council of ministers headed by PM who are responsible to Lok Sabha.
4) Sources of Constitution:
Indian constitution is a beautiful patch work which envisages encompassing suitable governance principles from various sources. The founding fathers of the constitution tried to accommodate the best possible and time tested features of each constitution to the requirement of the country. The following are the sources of Indian Constitution:
Government of India Act, 1935
5) Definition & Classification:-
What is constitution?
A constitution is a document having a special legal sanctity which sets out framework and principal functions of the organs of the Govt of state and declares the principles governing operation of those organs. It contains rights and duties for the citizens to follow and also directive principles for the state to follow to achieve a better welfare state.
Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also a constitution, in which how that organization is constituted would be defined. Within states, whether sovereign or federated, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially written constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights.
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. Most states in the world have codified constitutions. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court, and struck down as unconstitutional. Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions.
As of 2010 at least four states have uncodified constitutions: Canada, Israel, New Zealand, and the United Kingdom. Uncodified constitutions (also known as unwritten constitutions) are the product of an "evolution" of laws and conventions over centuries. By contrast to codified constitutions (in the Westminster tradition that originated in England) uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources: constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays; together these constitute the British constitutional law.
6) Constitutional Conventions:
The Constitution of a country comprises both written rules enforced by courts, and "unwritten" rules or principles necessary for constitutional government. Written rules mandate that they be followed in a particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament. For example, the President is empowered by the Constitution to appoint the Prime Minister, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President. Conventions are an instrument of national cooperation and the spirit of cooperation is as necessary as the Constitution. They are rules elaborated for effecting that cooperation.
The characteristics of the conventions are as follows:
(i) Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs.
(ii) Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable.
(iii) They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law.
(iv) Constitutional conventions develop over time and are not outlined in any document. Conventions grow out of practices and precedents determine their existence. Such precedents are not authoritative like the precedents of a court of law. Every act is a precedent, but not every precedent creates a rule. According to Sir Ivor Jennings three questions should be answered to establish a convention firstly, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, whether there is a good reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it.
(v) The term got its acceptance through the influence of Dicey to describe a constitutional obligation, obedience to which is secured despite the absence of the ordinary means of enforcing the obligation in a court of law.
The obligations do not necessarily, or indeed usually, derive from agreement. It is more likely to originate from customs or practices arising out of sheer expediency. Conventions grow out of and are modified by practice. At any given time it may be difficult to say whether or not a practice has become a convention. Conventions do not come from a certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not.
Unit – II: Distribution of Powers between Center and States
a. Legislative Powers
b. Administrative Powers
c. Financial powers
Relevant Doctrines: (a) Territorial Nexus (b) Harmonious Construction (c) Pith and Substance (d)
Repugnancy
Distribution of Powers between Center and States:
Centre-State Legislative Powers:
Important cases under this:-
Important cases related to residuary powers:
International Tourist Corporation v State of Haryana AIR 1981 SC 774
Satpal and Co v Lt Governor of Delhi AIR 1979 SC 1550
The SC held that legislative incompetence of state needs to be established before exclusive legislative competence can be claimed by union by resorting to residuary powers.
A matter can be brought under entry 97 of list I only if it is not enumerated in List II or list III
Important cases:
State of Bombay v RMDC AIR 1957 SC 699 (case under territorial nexus)
Facts:
Held:
State of Haryana v Karnal Co-opeartive Farmer’s Society (1993) 2 SCC 363
Held:
Pith and Substance:
Important cases under the doctrine:-
Profulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna AIR 1947 PC 60
Held
Other cases:
Repugnancy:-
Important cases:
1) M. Karunanidhi v UOI AIR 1979 SC 898
Facts:
Issue:
Whether there is any inconsistency between state Act and central Act?
Held:
2) Deep Chand v State of UP AIR 1959 SC 648
3) Zaverbhai v State of Bombay AIR 1954 SC 752
Parliament’s power to legislate on state subjects:
During exceptional circumstances the parliament can legislate on state subjects and the exceptional circumstances are as follows:
1) In national interests- (art 249)
2) During emergency (art 250)
3) With the consent of the states (art 52)-
4) To give effect to treaties and conventions (art 253)
5) In case of failure of constitutional machinery in state.
Centre’s control over state legislation:
Centre’s consent has to be taken before a bill is passed by state legislature for making it into law.
Examples:- Art 31 (3) which has been omitted by 44th amendment, Art 31 A, art 200, art 288 (2).
Question:
How is repugnancy determined?
Administrative Relations: (Art 256-263)
Art 256-263 provide for Union control over states even in normal times through the following ways:-
a) Direction by Union to state government
b) Delegation of Union functions to state
c) All-India Services
d) Grants-in-aid
Financial Relations: (Art 264-291)
The distribution of revenues sources between centre and state is based on scheme laid down in Government of India Act 1935.
|
Tax |
Fee |
|
No tax can be levied or collected without authority of law |
Prohibition does not exist for fee. |
|
It is a common burden and the only benefit a tax payer gets is participation in common benefit of state. |
|
|
A tax is compulsory exaction of money by public authority for public purpose which is enforceable by law. |
A fee is a payment rendered in exchange for services rendered which need not be direct to the payment being made. |
Cases:-
Secunderabad Hyderabad Hotel Owners Association v HMC AIR 1999 SC 635
Held:-
Borrowing Powers -
Restriction on State’s Taxing Power:
Art 286 imposes following restrictions on States:
Inter-govermental Tax Immunities:
First time recognized by US SC in Mechulloch v Maryland 4 Wheaton 316 (1819).
Facts:
Held:
India:
Exemption of union property from state tax:
Exemption of state from union:
Case:
State of W.B v UOI AIR 1974 SC 1510
Held:
Financial Relations During Emergency
i) give directions to the state to observe such canonries of financial propriety as may be specified in the communication;
ii) instruct state governments that the salaries and allowances of all public servants including judges be reduced in the specified manner; and
iii) reserve for the consideration of the President all money bills and financial bills after they are passed by the Legislatures for the state.
Doctrine of Harmonious Construction
Interpreting Entries 24 and 25 of the State List harmoniously, the Supreme Court held that ‘gas and gas works’ being in Entry 25 would not fall in the general Entry 24’Industry’.
Other cases on this doctrine:
Gujrat University v. Shri Krishna AIR 1963 SC 703
In Union of India v. H.S. Dhillon, AIR 1972 SC 1061
Unit – II: Distribution of Powers between Center and States
a. Legislative Powers
b. Administrative Powers
c. Financial powers
Relevant Doctrines: (a) Territorial Nexus (b) Harmonious Construction (c) Pith and Substance (d)
Repugnancy
Distribution of Powers between Center and States:
Centre-State Legislative Powers:
Important cases under this:-
Important cases related to residuary powers:
International Tourist Corporation v State of Haryana AIR 1981 SC 774
Satpal and Co v Lt Governor of Delhi AIR 1979 SC 1550
The SC held that legislative incompetence of state needs to be established before exclusive legislative competence can be claimed by union by resorting to residuary powers.
A matter can be brought under entry 97 of list I only if it is not enumerated in List II or list III
Important cases:
State of Bombay v RMDC AIR 1957 SC 699 (case under territorial nexus)
Facts:
Held:
State of Haryana v Karnal Co-opeartive Farmer’s Society (1993) 2 SCC 363
Held:
Pith and Substance:
Important cases under the doctrine:-
Profulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna AIR 1947 PC 60
Held
Other cases:
Repugnancy:-
Important cases:
1) M. Karunanidhi v UOI AIR 1979 SC 898
Facts:
Issue:
Whether there is any inconsistency between state Act and central Act?
Held:
2) Deep Chand v State of UP AIR 1959 SC 648
3) Zaverbhai v State of Bombay AIR 1954 SC 752
Parliament’s power to legislate on state subjects:
During exceptional circumstances the parliament can legislate on state subjects and the exceptional circumstances are as follows:
1) In national interests- (art 249)
2) During emergency (art 250)
3) With the consent of the states (art 52)-
4) To give effect to treaties and conventions (art 253)
5) In case of failure of constitutional machinery in state.
Centre’s control over state legislation:
Centre’s consent has to be taken before a bill is passed by state legislature for making it into law.
Examples:- Art 31 (3) which has been omitted by 44th amendment, Art 31 A, art 200, art 288 (2).
Question:
How is repugnancy determined?
Administrative Relations: (Art 256-263)
Art 256-263 provide for Union control over states even in normal times through the following ways:-
a) Direction by Union to state government
b) Delegation of Union functions to state
c) All-India Services
d) Grants-in-aid
Financial Relations: (Art 264-291)
The distribution of revenues sources between centre and state is based on scheme laid down in Government of India Act 1935.
|
Tax |
Fee |
|
No tax can be levied or collected without authority of law |
Prohibition does not exist for fee. |
|
It is a common burden and the only benefit a tax payer gets is participation in common benefit of state. |
|
|
A tax is compulsory exaction of money by public authority for public purpose which is enforceable by law. |
A fee is a payment rendered in exchange for services rendered which need not be direct to the payment being made. |
Cases:-
Secunderabad Hyderabad Hotel Owners Association v HMC AIR 1999 SC 635
Held:-
Borrowing Powers -
Restriction on State’s Taxing Power:
Art 286 imposes following restrictions on States:
Inter-govermental Tax Immunities:
First time recognized by US SC in Mechulloch v Maryland 4 Wheaton 316 (1819).
Facts:
Held:
India:
Exemption of union property from state tax:
Exemption of state from union:
Case:
State of W.B v UOI AIR 1974 SC 1510
Held:
Financial Relations During Emergency
i) give directions to the state to observe such canonries of financial propriety as may be specified in the communication;
ii) instruct state governments that the salaries and allowances of all public servants including judges be reduced in the specified manner; and
iii) reserve for the consideration of the President all money bills and financial bills after they are passed by the Legislatures for the state.
Doctrine of Harmonious Construction
Interpreting Entries 24 and 25 of the State List harmoniously, the Supreme Court held that ‘gas and gas works’ being in Entry 25 would not fall in the general Entry 24’Industry’.
Other cases on this doctrine:
Gujrat University v. Shri Krishna AIR 1963 SC 703
In Union of India v. H.S. Dhillon, AIR 1972 SC 1061
Copyright 2014 @ Dejuris Consultants
Dejurislawnotes@gmail.com
Pranam.pankaj@gmail.com