Constitutional Law Notes Brief Questions
1. Discuss Discuss fully fully Arti Article cle 21 of the the Constit Constituti ution. on.
Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The object of Article 21 is to put a restraint on the Executive so that it !ay not proceed against the life or personal liberty of any individual except under the authority of of law.
This is the !ost cherished guarantee in the world. Article 21 read with Article 22 cont contai ains ns the the enti entire re prov provis isio ion n relat relatin ing g to depr depriv ivat atio ion n of life life or perso persona nall libe liberty rty as distinguished fro! the restriction of the right to !ove freely throughout the territory of "ndia guaranteed under Article 1#$1% $b% and $&%.
"n the Dartmouth the Dartmouth College case College case the due process clause has been defined as the 'process of law which hears before it conde!ns which proceeds upon en(uiry and renders judg!ent only after trial). "ts !eaning is that every citi*en shall hold his life liberty and property and i!!unities under protection of the general rules which govern society. "n short +due process, as regards a cri!inal trial !eans that no person is to be punished except for a violation of definite and validly enacted laws of the land and after a trial conducted in accordance with the specific procedural safeguards contained in the -ill of ights to secure a fair trial.
"t is interesting to note that the Draft Constitution of "ndia contained the expression 'without due process of law) in place of the words 'except according to procedure
established by law). /owever the Constituent Asse!bly preferred the latter expression as it was considered to be !ore certain and definite.
"n "ndia the duty of seeing that no !e!ber of the Executive interferes with the liberty or property of the citi*ens except on the condition that he can support the legality of his actions actions devolv devolves es on the Court. Court. At the sa!e sa!e ti!e ti!e the "ndian "ndian Consti Constitut tution ion does does not guarantee the right to any particular procedure. Though the 0upre!e Court has denied to itself the right to exa!ine the reasonableness of any law depriving a person of his liberty it has in fact interfered in !any cases with such orders depriving the liberty of the citi*ens on the ground that the procedure laid down by the law which authori*es such deprivation has not been followed. n such grounds the Court in a proceeding for habeas corpus corpus will at once set the person at liberty. This principle has been applied both in the case of punitive as well as preventive detention.
"n the case of Gopalan v. State of Madras the 0upre!e Court held that the word +law, occurring in Article 21 is to be understood as 0tate !ade law and not as natural law. The for!al for!al reversal reversal of this this view view ulti!a ulti!ately tely ca!e about about in the case of Maneka Gandhi v. Union of India India where the 0upre!e Court laid down that Article 21 is controlled by Article 1#. The Court observed that if there is a law which prescribes a procedure for depriving a person of his personal liberty there !ay be no infringe!ent of Article 21 but such law can still be challenged on the ground that it taes away any funda!ental right under Article 1# of the Constitution.
"t !ay be noted that when a person is deprived of his life or personal liberty by a law prescribing a procedure for the sa!e Article Article 21 is not violated.
established by law). /owever the Constituent Asse!bly preferred the latter expression as it was considered to be !ore certain and definite.
"n "ndia the duty of seeing that no !e!ber of the Executive interferes with the liberty or property of the citi*ens except on the condition that he can support the legality of his actions actions devolv devolves es on the Court. Court. At the sa!e sa!e ti!e ti!e the "ndian "ndian Consti Constitut tution ion does does not guarantee the right to any particular procedure. Though the 0upre!e Court has denied to itself the right to exa!ine the reasonableness of any law depriving a person of his liberty it has in fact interfered in !any cases with such orders depriving the liberty of the citi*ens on the ground that the procedure laid down by the law which authori*es such deprivation has not been followed. n such grounds the Court in a proceeding for habeas corpus corpus will at once set the person at liberty. This principle has been applied both in the case of punitive as well as preventive detention.
"n the case of Gopalan v. State of Madras the 0upre!e Court held that the word +law, occurring in Article 21 is to be understood as 0tate !ade law and not as natural law. The for!al for!al reversal reversal of this this view view ulti!a ulti!ately tely ca!e about about in the case of Maneka Gandhi v. Union of India India where the 0upre!e Court laid down that Article 21 is controlled by Article 1#. The Court observed that if there is a law which prescribes a procedure for depriving a person of his personal liberty there !ay be no infringe!ent of Article 21 but such law can still be challenged on the ground that it taes away any funda!ental right under Article 1# of the Constitution.
"t !ay be noted that when a person is deprived of his life or personal liberty by a law prescribing a procedure for the sa!e Article Article 21 is not violated.
2. Discuss fully fully whether whether the "ndian "ndian Consti Constitutio tution n is federal federal as well as unitary unitary..
The nature of the "ndian Constitution whether it is federal or unitary can be exa!ined in the light of certain characteristics which can be su!!ari*ed as follows3
a% 4or!at 4or!ation ion of the Consti Constitut tution ion33 4ederations elsewhere have been the result of a voluntary agree!ent between a nu!b nu!ber er of sove sovere reig ign n and and inde indepe pend nden entt 0tat 0tates es co!i co!ing ng unde underr a co!! co!!on on ad!inistration for certain specific purposes. -ut in "ndia federation was not a process of integration but a process of decentrali*ation. The for!er f or!er i!perialistic unit unitary ary 0tat 0tatee was was conv conver erted ted into into a de!o de!ocra crati ticc unio union n by the the Cons Consti titu tutio tion. n. Therefo Therefore re it is not surprisi surprising ng that that the "ndian "ndian Constit Constituti ution on differ differss fro! fro! other other federations in !any vital respects. b% Distribution of powers3 The legislative power contained in the Constitution can be su!!ari*ed by saying that the legislative legislative power has been distributed distributed between the 5nion 5nion and the 0tates6 with the 5nion having exclusive legislative with respect to the subjects in the 5nion 7ist while the 0tates have exclusive legislative power with respect to the subjects !entioned in the 0tate 7ist. /owever both the 5nion and the 0tates have legislative power with regard to the subjects !entioned in the Concurrent 7ist. c% Citi Citi*e *ens nshi hip3 p3 There is a single citi*enship for the whole 5nion and there is no citi*enship for the 0tate as is observed in the 5nited 0tates where citi*enship is of both the 5nion as well as the 0tate.
d% 8udiciary3 There is no bifurcation of the judiciary between the 4ederal and the 0tate 9overn!ents. The sa!e syste! of courts headed by the 0upre!e Court ad!inisters both the 5nion and the 0tate laws as are applicable to the cases co!ing up for adjudication. This is again in contrast to the A!erican syste! where there are 4ederal Courts and 0tate Courts. e% Election accounts : audit3 The !achinery for election accounts and audit is si!ilarly integrated and unified. The 5nion 9overn!ent !ay give directions to a 0tate 9overn!ent to ensure due co!pliance with the legislative and ad!inistrative action of the 5nion. f% 4ailure of constitutional !achinery3 ;here there is a failure of the constitutional !achinery in a 0tate the
Thus it can be seen that the "ndian Constitution has so!e federal characteristics and so!e unitary feature and the latter are !ore pronounced during ti!es of national e!ergency.
=. Discuss fully 'The inister is the real executive head).
-efore the 4orty 0econd A!end!ent of the Constitution there was a controversy regarding the constitutional status of the
Those who held that the inisters held their views for the following reasons3 a% According to Article ?@ there is a Council of >inisters. Therefore the absence of !inisters and the inisters such action would not fall within the sphere of parlia!entary responsibility. c% "f the
the
As against the above argu!ents those who held that under certain exceptional circu!stances the inister or the Council of >inisters6 advanced the following argu!ents in favor of their view3 a% The Constitution as originally fra!ed only provided for the Council of >inisters6 nowhere did it categorically state that the inisters. b% "n view of the federal nature of the Constitution there was no reason to believe that all the conventions of the -ritish Constitution should be invariably followed in "ndia. c% 0o far as the federal and national proble!s are concerned the inister who would just be a leader of the !ajority party in the inisters. After the @2nd A!end!ent the above discussion assu!es a purely acade!ic character as it is now !ade clear that the inisters. 4or this purpose Article @ of the Constitution was a!ended and it is now provided that the
@. Discuss fully the procedure of passing !oney bills.
"t is well nown that one of the factors which contribute to the well being of an individual or nation is finance. The Constitution therefore contains so!e special and i!portant provisions as regards !oney bills.
+>oney bills, defined $Article 11B%3 A !oney bill is one which deals with any of the following !atters only vi*. a% The i!position abolition re!ission alteration or regulation of any tax. b% The regulation of the borrowing of !oney or the giving of any guarantee by the 9overn!ent of "ndia or the a!end!ent of any law with respect to any financial obligations undertaen by the 9overn!ent of "ndia. c% The custody of the Consolidated 4und or the Contingency 4und of "ndia the pay!ent of !oneys into or the withdrawals fro! any such fund. d% The appropriation of !oneys out of the Consolidated 4und of "ndia. e% The declaring of any expenditure to be expenditure charged on the Consolidated 4und of "ndia or the increasing of the a!ount of any such expenditure. f% The receipt of !oney on account of the Consolidated 4und of "ndia or the public account of "ndia or the custody or issue of such !oney or the audit of the accounts of the 5nion or of a 0tate. g% Any !atter incidental to any of the !atters !entioned in clause $1% to $?% above.
A -ill is not to be dee!ed a >oney -ill by reason only that it provide for the i!position of fines or other pecuniary penalties or for the de!and or pay!ent of fees for licenses or fees for services rendered or by the reason that it provides for the i!position abolition
re!ission or regulation of any tax by any local body or authority for local purposes. "f any (uestion arises whether a -ill is a >oney -ill or not the decision of the 0peaer of the /ouse of the
;hen a >oney -ill is trans!itted to the Council of 0tates under Article 1B# and when it is presented to the oney -ill.
0pecial procedure in respect of >oney -ills $Articles 1B#11B$@% :11%3 A -ill or a!end!ent !aing provisions for any of the !atters !entioned in cla uses $1% to $?% above cannot be introduced or !oved except on the reco!!endation of the oney -ill cannot be introduced in the Council of 0tates. $Article 1B1$1%% b% n being passed by the 7o 0abha a >oney -ill !ust be sent to the ajya 0abha which !ust return the sa!e with its reco!!endations within 1@ days which !ay be accepted or not by the for!er. "f the >oney -ill is not returned within the re(uisite period it is dee!ed to have been passed by both the /ouses in the for! in which it was sent by the 7o 0abha. $Article 1B#%. c% "f the 7o 0abha accepts any of the reco!!endations !ade by the ajya 0abha the >oney -ill is dee!ed to have been passed by both the houses with the reco!!endations incorporated into the -ill. "f the reco!!endations are not accepted the -ill is dee!ed to have been passed in its original for!.
&. Discuss fully the procedure of a!ending the Constitution under Article =?.
Article =? prescribes a special procedure in case the Constitution has to be a!ended. There are four steps in the procedure as under3
An a!end!ent of the Constitution !ay be initiated only
a% -y the introduction of a bill for the purpose in either /ouse of
b% ;hen the -ill is passed in each /ouse by a !ajority of the total !e!bership of the /ouse and by a !ajority of not less than twothirds of the !e!bers of the !e!bers of that /ouse present and voting it is presented to the
c% 5pon such assent being given to the -ill the Constitution stands a!ended in accordance with the ter!s of the -ill.
d% /owever if such a!end!ent sees to !ae any change in any of the following eleven !atters i. ii.
Article &@3 Election of the anner of the election of the
iii.
Article =3 Extent of the executive power of the 5nion
iv.
Article 1?23 Extent of executive power of the 0tate
v. vi. vii. viii. ix. x. xi.
Article 2@13 /igh Courts for 5nion territories Chapter "F of
the a!end!ent !ust also be ratified by the 7egislature of not less than half of the 0tates by resolutions to that effect passed by those 7egislatures before the -ill !aing provisions for such a!end!ent is presented to the
The @2nd A!end!ent 1#? had provided that no a!end!ent of the Constitution including the provisions relating to the 4unda!ental ights !ade or purporting to be !ade under Article =? could be called into (uestion in any Court on any ground.
The a!ended Article =? also declared that there would be no li!itation whatsoever in the power of the
The above two provisions introduced by the @2 nd A!end!ent 1#? were challenged before the 0upre!e Court in the case of Minerva Mills v. Union of India. The five !e!ber -ench of the 0upre!e Court which tried this case were unani!ous in its opinion that both the provisions void as they were beyond the a!ending powers of the
?. Discuss fully the position of the inister as well as his functions.
The inister is appointed by the
/is duties are to be found in Article and as are under3
a% To co!!unicate to the inisters relating to the ad!inistration of the affairs of the 5nion and proposals for legislation.
b% To furnish such infor!ation relating to the ad!inistration of the affairs of the 5nion and proposals for legislation as the
c% "f the inisters any !atter on which a decision has been taen by a >inister but has not been considered by the Council.
The inister certainly occupies a position of superiority over the other !inisters. /e is often described as the +eystone of the cabinet arch,. 0o!eti!es he is also described as primus inter pares the first a!ong e(uals. /owever this see!s to be an understate!ent inas!uch as a inister and !ore so a powerful inister has no e(uals. .
The superiority of the inister is also reflected in the fact that it is he who reco!!ends to the
Hor!ally a !inister who does not agree with the inister has to resign. 0uch a !inister cannot continue in the !inistry and at the sa!e ti!e critici*e the inister openly. 0uch behavior would be inco!patible with the basic principles of the cabinet syste! of govern!ent.
Again it is the inister who defends the cabinet on the floor of the /ouse. /is resignation would !ean the fall of the entire cabinet. A person with a strong personality and co!fortable !ajority in the 7o 0abha can well beco!e a very powerful inister. "t is therefore said that the office of the inister is what its holder chooses to !ae it. And recent history has shown how true this state!ent can be.
There is yet another weapon in the hands of the inister. /e can advise the inister full control over the 7o 0abha and not vice versa. ;ith a relatively wea inister can al!ost beco!e an +elected dictator,.
. Discuss fully untouchability under Article 1 : the Civil ights Act 1#&&.
+5ntouchability, is abolished and its practice in any for! is forbidden. The enforce!ent of any disability arising out of +untouchability, shall be an offence punishable in accordance with law.
The co!plete abolition of untouchability was one of the fore!ost visions of >ahat!a 9andhi. Article 1 sees to adopt the 9andhian idea without any (ualification. The word +untouchability, has not been defined in the Constitution but it is !eant to cover different acts in different in "ndia. This Article abolishes untouchability which lie slavery a!ounts to a denial of hu!an e(uality. This Article also !aes untouchability in any for! an offence.
"t will be seen that this Article enacts two declarations. "t is firstly declared that untouchability is abolished and its practice in any for! is forbidden. 0econdly it is laid down that if a person sees to enforce any disability arising out of untouchability he will be guilty of an offence.
"t is interesting to note that the word +untouchability, $as appearing in Article 1% is enclosed in inverted co!!as. This would suggest that the subject !atter of Article 1 is not untouchability in its literal or gra!!atical sense but the practice as has developed in "ndia through the ages.
"n 1#&&
enforced it is a step in towards a socialist "ndia where all !en are e(ual in the eyes of society and law.
As it is not possible to give a precise definition of +untouchability, the
a%
. Discuss fully the prea!ble to the Constitution.
The
The
0econdly the
As observed by the 0upre!e Court the Constitution is a living and organic thing which of all instru!ents has the greatest clai! to be construed broadly and liberally. As the 0upre!e Court observed the Constitution is not !erely +law, but the !achinery by which all laws are !ade. $Goodyear India Ltd. . State of !aryana%
"t is well established rule of interpretation that it is only when an Act is a!biguous a
"n 9opalan,s case it was contended that since the
"n the case of Jeshavananda -harti v. 0tate of Jerala a !ajority of the 4ull -ench of the 0upre!e Court held that the objectives stated in the
The 0upre!e Court has also observed that the
#. /ow is the independence of the 0upre!e Court protectedK
The fra!ers of our Constitution have tried to secure the independence of the 0upre!e Court by various !easures. ;hile providing for such safeguards the fra!ers drew inspiration for! the A!erican 0wiss and -ritish exa!ples. The various safeguards in the Constitution too ensure the independence of the 0upre!e Court can be su!!ed up as follows3 a% Appoint!ent3 A 8udge of the 0upre!e Court is appointed by the
b% e!oval3 A 8udge of the 0upre!e Court cannot be re!oved fro! office except by an order of the
c% 0alaries and allowances3 The salaries of the 8udges have been fixed by the 0econd 0chedule and cannot be altered or varied to their disadvantage after their appoint!ent. Thus independence
is ensured by this assurance that a 8udge,s salary and allowances will not be adversely affected even if
d% Charge on the Consolidated 4und of "ndia3 The ad!inistrative expenses of the 0upre!e Court including all salaries allowances and pensions payable to the 8udges and other officers and servants of the 0upre!e Court are charged upon the Consolidated 4und of "ndia. The su!s which are charged upon the Consolidated 4und of "ndia are not put to the vote of
e% Appoint!ent of officers3 The appoint!ents of the officers and servants of the 0upre!e Court are !ade by the Chief 8ustice of "ndia or such other 8udge or officer of the 0upre!e Court as he !ay direct provided that the
f% Conduct not open to discussion in
g% Ho right to practice3 5nder Article 12@$% a person who has been a 8udge of the 0upre!e Court cannot plead or act in any Court or before any authority in "ndia.
1B. Discuss fully the writs available under articles =2 and 22?.
The writs available under Article =2 : 22? are as follows3 a% /abeas Corpus3 This writ !ay be regarded as one of the !ost i!portant safeguards of personal liberty. This writ is available in all cases of deprivation of personal liberty or wrongful detention. n an application the Court is e!powered to direct that the detained person be produced before it and is entitled to in(uire into the grounds of his detention. "f the Court is satisfied that such detention is illegal it can order i!!ediate release of the person.
b% >anda!us3 The writ of !anda!us $literally !eaning +;e co!!and,% is a high prerogative writ of a !ost extensive re!edial nature. Today it is used principally for public purposes and to co!pel the perfor!ance of public duties. "t is however also sued to enforce private rights when they are withheld by pubic officers. it is to be noted that !anda!us lies not only against executive authorities but also against judicial and (uasi judicial authorities. The four conditions to be satisfied before a writ of !anda!us can be issued are3 i.
The petitioner !ust show that he has a legal right to obtain perfor!ance of a legal duty.
ii.
0uch duty !ust i!posed by the Constitution or any other law but not under a contract.
iii.
0uch a duty !ust be a !inisterial duty and not discretionary in nature.
iv.
The right which is clai!ed should be judicially enforceable right.
c%
"s acting without jurisdiction6 "s acting beyond its jurisdiction6
iii.
"s acting in violation of the rules of natural justice6
iv.
"s proceeding under a law which is unconstitutional or ultra vires6
v.
"s acting in contravention of a funda!ental right.
d% Certiorari3 Certiorari !eans +To be !ore fully infor!ed of +. 0uch a writ issued by a 0uperior Court and is directed to the judge or officer of an inferior Court of record. "t re(uire that the record of the proceedings in so!e cause or !atter pending before such inferior Court be trans!itted to the superior Court to be dealt with in order to ensure that the applicant will have sure and speedy justice.
e% Luo ;arranto3 The writ of (uo warranto is issued to prevent the illegal assu!ption of any public office or usurpation of any public office by anybody.
11. Discuss fully the features of the Constitution.
The Constitution of "ndia which ca!e into effect on 2? th 8anuary 1#&B has certain distinguishing features. Though the Constitution has gained fro! the constitutional experi!ents of other countries it has its own salient features. The following !ay be said to be the salient features of the "ndian Constitution3
a% The Constitution has the distinction of being the !ost lengthy and detailed constitutional docu!ent the world has ever produced. ;hen originally enacted the Constitution had =#& Articles 0chedules. b% The Constitution is federal in character and provides for a division of powers between the 5nion and the 0tates. The peculiarity of our federalis! is that it has created a substantially strong centre. c% Though the "ndian Constitution is federal in for! it is the !ost flexible of all federal written constitutions. >ost of the provisions of the Constitution can be a!ended by the
0tates of A!erica%. Thus all citi*ens are citi*ens of "ndia and not of Jarnataa or >adhya oreover freedo! of religion is one of the funda!ental rights under the Constitution. h% Another i!portant feature of the Constitution is the abolition of co!!unal electorates. The fra!ers of the Constitution see! to have learnt for! their past experience. "n the interest of national solidarity it has been found that there should be no voting on co!!unal lines. nly a few seats have been reserved and that too only for so!e ti!e for the Anglo"ndians and the 0cheduled Castes. i% Another i!portant feature is the provision for adult franchise. Every citi*en who is 1 years of age $under the Constitution as enacted it was 21% has been given the right to vote. 5nfortunately there is no duty to vote as in so!e European countries. j% Another interesting feature of the Constitution is that it superi!poses an elected
12. Discuss fully Article 1@ : Article 1#.
Article 1@3 Article 1@ provides that the 0tate shall not deny to any person e(uality before the law or the e(ual protection of the laws within the territory of "ndia. The right to e(uality guaranteed under Article 1@ consists of two parts3 a% E(uality before the law. b% E(ual protection of the laws.
The first phrase +e(uality before the law, owes its origin to the English co!!on law. E(uality before the law !eans the absence of any special privilege in favour of any individual and the e(ual subjection of all classes to the ordinary law. "t !eans that +the law should be e(ual and should be e(ually ad!inistered that lie should be treated alie,. The !eaning of this phrase is that there shall not be any discri!ination before the law on extraneous grounds lie ran office etc.
The other phrase +e(ual protection of the law, owes its origin to the A!erican Constitution. ;hile both the expressions +e(uality before the law, and +e(ual protection of the laws, ai! at establishing e(uality of legal status for all there is so!e difference between these expressions. The for!er expression is so!ewhat a negative concept i!plying absence of any special privilege in favour of individuals while the latter is a !ore positive concept i!plying e(uality of treat!ent in e(ual circu!stances.
Exa!ining the scope of Article 1@ the 0upre!e Court has in several cases observed that this Article guarantees e(ual treat!ent to persons who are e(ually situated. 5ne(uals are
not only per!itted to be treated une(ually but also !ust be so treated. E(ual treat!ent when given to une(uals a!ount to ine(uality.
Article 1#3 Article 1# enshrines several i!portant liberties of citi*ens. The list is (uite co!prehensive and these rights which are enjoyed by all citi*ens are not absolute as they are (ualified and li!ited6 as for instance the right of a person to !ove anywhere does not enable hi! to enter any place he lies. The restrictions i!posed by the legislature are for the public good.
ights are declared in un(ualified ter!s but later on they are properly (ualified thereby suggesting so!eti!es that rights have been given by one hand and taen by the other. The Constitution !aers after studying all the different Constitutions have tried to include the essence of other Constitutions in Article 1# of the Constitution but unlie the A!erican Constitution they have been properly codified. The right to freedo! guaranteed under Article 1# can be classified under the following seven i!portant heads3 a% 4reedo! of speech and expression. b% 4reedo! of asse!bly. c% 4reedo! to for! associations or unions. d% 4reedo! to !ove freely throughout "ndia. e% 4reedo! to reside and settle in any part of "ndia. f% 4reedo! to ac(uire hold and dispose of property. $no longer a funda!ental right% g% 4reedo! to practice any profession.
Short Notes
1. Election Co!!ission.
The Election Co!!ission consists of the Chief Election Co!!issioner and other election co!!issioners all of who! are appointed by the
The superintendence direction and control of the preparation of the electoral rolls for and the conduct of all elections to
Article =2@ thus provides for the creation of an independent body with exclusive powers to decide certain !atters. ;hen read with Articles 1B= and 1#2 it beco!es clear that in case of doubts and disputes as to the (ualification of !e!bers of the 7egislatures the
2. Directive
The fra!ers of our Constitution have chosen the !iddle path between the ideal and the practicable. They reali*ed that so!e salutary principles though necessary and highly desirable could not be placed on the sa!e level as the funda!ental rights. /ence these directive principles as they are called have been put on a separate footing in
This part e!bodies a series of general injunctions a nu!ber of pious wishes styled +Directive
The Directive
The Directive
=.
;hen the legislative powers of the 5nion and the 0tates are divided in !utually exclusive lists it is possible that a (uestion !ay arise in practice as to whether a law purporting to be !ade under an entry in one list falls in fact within an entry in another list over which such legislature has no power to !ae laws.
answer such (uestions the
Therefore when the vires of a law is challenged the encroach!ent !ust be looed at as an organic whole and not as a !ere collection of 0ections fro! different pats of such an Act. "f the i!pugned Act is substantially within the legislative co!petence of the legislature it cannot be set aside.
This doctrine was first applied by the
@. Doctrine of severability.
;henever two interpretations of a statute are possible one of which would !ae the law valid and the other void the for!er is always to be preferred. /owever if this is not possible the Court will have to decide whether the law is bad as a whole or whether the part which is bad can be severed $i.e. separated% fro! the rest and declared void leaving the other parts of the statute intact.
Thus it is only if the valid and the invalid provisions are separate and distinct that this doctrine can be applied provided further that after striing out the invalid portions what re!ains is itself a co!plete code independent of the rest $which has been struc down%. "t follows that if the valid and invalid provisions are so inextricably !ixed up that they cannot be separated the whole statute will be declared void.
"t has been held that where the valid and invalid provisions are joined together by using words +and, or +or, and the enforce!ent of the valid provision is not dependent on the enforce!ent of the invalid provision i.e. if the valid provision can be enforced even if the invalid one cannot be enforced the two provisions can be said to be severable. "n such a case only the valid provision will be upheld and given effect to.
&. Doctrine of colorable legislation.
;hen a legislature lacs legislative co!petence in a particular field it !ay fra!e its statute so as to !ae it appear that the statute falls within one of the entries it has the power to legislate upon. This is called colorable legislation which !eans that while the statute pretends to be on a subject falling within the co!petence of the legislature it is in reality a law on a prohibited field. 0uch a law will be exa!ined by the Courts and if found to be an instance of colorable legislation it will be struc down as void.
"n a federal constitution the transgression of its li!its by a legislature central or 0tate !ay in so!e cases be open direct or overt. "n other cases it !ay be disguised indirect and covert in the shape of colorable legislation.
-efore applying the test of colorable legislation the pith and substance test should be applied. "f the legislature is co!petent to pass a law and it incidentally encroaches on the sphere of another legislature the law will not be invalid. -ut if a legislature which lacs co!petence purports to act under a relevant entry with a view to assu!ing legislative co!petence it would be a case of colorable legislation and the law would be declared to be invalid. Thus the doctrine of colorable legislation loos to the co!petence of a legislature and not to its !otives.
?. Co!ptroller and Auditor 9eneral.
The Co!ptroller and Auditor 9eneral of "ndia is appointed by the
"t is also provided that neither his salary nor his rights in respect of leave pension or retire!ent age can be varied to his disadvantage after his appoint!ent.
After he has ceased to hold his office he is not eligible for further office either under the 9overn!ent of "ndia or under the 9overn!ent of any 0tate.
The Co!ptroller and Auditor 9eneral can be re!oved fro! office only in the !anner and on lie grounds as a 8udge of the 0upre!e Court. "n other words he cannot be re!oved fro! his office except by an order of the
The Co!ptroller and Auditor 9eneral perfor!s such duties and exercises such powers in relation to the accounts of the 5nion and the 0tates as !ay be prescribed by
. 0pecial provisions for scheduled castes and scheduled tribes.
Hothing in this Article or in Clause $2% of Article 2# shall prevent the 0tate fro! !aing any special provision for the advance!ent of any socially or econo!ically bacward class of citi*ens or for the 0cheduled Castes and Tribes. $Article 1&$@%%
Article 1&$@% was added in 1#&1 as a result of the judg!ent of the >adras /igh Court in the case of Champakam Doraira'an v. State of Madras which decision was upheld by the 0upre!e Court.
The (uestion of the validity of reservation for the 0cheduled Castes and Tribes ca!e up before the 0upre!e Court in the case of M. ". #ala'i v. State of Mysore where an order of the >ysore 9overn!ent reserving ? per cent of the seats for the 0cheduled Castes and Tribes and for the -acward Classes was challenged. "n this case it was held that the i!pugned order !ade a classification based only on caste without regard to other relevant factors and that such classification was not per!issible under Article 1&$@%.
The 0upre!e Court also observed that generally speaing such a reservation should be less than &B per cent and that as the i!pugned order reserved ? per cent of the seats it was void on that ground also. "nterestingly enough the 0upre!e Court did not specify as to how !uch below &B per cent such reservation should be.
. Doctrine of eclipse.
An existing law inconsistent with a funda!ental right though beco!es inoperative fro! the date of the co!!ence!ent of the Constitution is not dead altogether. "t is a good law if a (uestion arises for deter!ination of rights and obligations incurred before the co!!ence!ent of the Constitution and also for the deter!ination of the rights of persons who have not been given funda!ental rights by the Constitution.
This has led the 0upre!e Court to apply to the existing laws i.e. preConstitution laws what !ay be described as the doctrine of eclipse. According to the doctrine of eclipse an exiting law i.e. a law !ade before the co!!ence!ent of the Constitution re!ains eclipsed or dor!ant to the extent it co!es under the shadow of the funda!ental rights i.e. it is inconsistent with any funda!ental right but the eclipsed or dor!ant parts beco!e operative and effective again if the prohibition brought about by the funda!ental right is re!oved by an a!end!ent of the Constitution. The 0upre!e Court decision in the case of -hiaji Harain Dharas v. 0tate of >.<. is a good illustration of the application of this doctrine.
#. 5nion
Article =1&$1% of the Constitution provides that there shall be a
The Chair!an and other !e!bers of a
ne half of the !e!bers of the 5nion
1B.
The powers of governor of a 0tate are analogous to those of the
a% /e is the head of the executive power of a 0tate. The executive power of the 0tate being vested in the governor is to be executed by hi! directly by hi! or through officers subordinate to hi! in accordance with the Constitution. $Article 1&@$1%% b% All executive action of the 9overn!ent of a 0tate is o be expressed to be taen in the na!e of the governor. c% The governor appoints !inisters and they hold office during his pleasure. d% The governor has a right of opening addresses of addressing and sending !essages to and su!!oning of proroguing and dissolving the 7egislature just as the oney -ills. f% /e has the power of pro!ulgating ordinances during any recess of the 7egislature and power of vetoing 0tate -ills with power to reserve the! for the consideration of the
11. Attorney 9eneral.
Articles ? 12@ contain i!portant provisions regarding the Attorney 9eneral of " ndia.
The
The (ualifications of the Attorney 9eneral of "ndia are the sa!e as those of the 0upre!e Court laid down in Article 12@ na!ely a% /e !ust be a citi*en of "ndia. b% /e !ust have been i.
At least for five years a judge of a /igh Court or of two or !ore such Courts in succession6 or
ii.
/e !ust have been for at least ten years an advocate of a /igh Court or of two or !ore such Courts in succession6 or
iii.
/e is in the opinion of the
The Attorney 9eneral holds office during the pleasure of the
/is duties are to give advice to the 9overn!ent of "ndia upon such legal !atters and to perfor! such other duties of a legal character as !ay be referred or assigned to hi! by the
12. 0ecularis!.
This word was also added by the @2 nd A!end!ent 1#? to e!phasi*e the secular nature of the nation. The provisions contained in Articles 2& to =B ai! at !aing "ndia a truly secular nation.
A secular 0tate is one where the 0tate has no official religion. The 0tate provides full opportunity to every person to profess and practice a religion of his choice. n the other hand the Constitution guarantees a person,s freedo! of religion and on the other hand also ensures e(ual freedo! even for hi! who has no religion.
Dr. adharishnan a for!er
;hen "ndia is said to be a secular state it does not !ean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt religion. "t does not !ean secularis! itself beco!es a positive religion or that the 0tate assu!es divine prerogativeM ;e hold that not one religion should be given preferential status. This view of religious i!partiality or co!prehension and forbearance has a prophetic role to play with the national and international life.
1=. Citi*enship. The following are the four classes of persons !entioned in Articles & to who can be citi*ens of "ndia3 a% Citi*enship is conferred by the Constitution on every person who had his do!icile in "ndia at the co!!ence!ent of the Constitution and i. ;ho was born in "ndia6 or ii. Either of whose parents was born in "ndia6 or iii. ;ho has been ordinarily resident in "ndia not less than & years i!!ediately preceding 2?th 8anuary 1#&B. b% A person who has !igrated to "ndia fro! arch 1#@ !igrated fro! "ndia to
