AL

AL--AME
AMEEEN CO
COLL
LL
LLEEGE OF LAW

IV SE
SEMMES
ESTTER 5 YE
YEAARS B.
B.A.
A.
A.,, LL
LL.B
.B
.B.,., COU
OURRSE

CONS
NSTTITUTIO
IONA
NA
NALL LAW-II

MO
MODDEL ANSW
SWEER PAPE
PERR- 202
0200/
IM
IMOORTANT QUESTIONS WITH
AN
ANSS WE R S

Pr
Prepar
epar
epared ed By:
Ms. S ahaahana
na Flo
Flore
re
rence
nce
As
Asstst
st.. Pro
Prof.
f.
Al-
Al-Am
Am
Ameeneen Col
Colleg
leg
legee of Law.

3 0
Q.N
Q.No.1
o.1
o.1.. Dis
Discu
cu
cuss
ss t he Fe
Feder
der
deral
al Ch
Chara
ara
aracte
cte
cteris
ris
ristt ics of th
thee Indi
Indian
an Co
Const
nst
nstit
it
itut
ut
ution
ion
ion..

SYN
SYNOPS
OPS
OPSIS:
IS:
Introduction
Definitions of Federalism
Is the Constitution of India Federal ?
Federal Characteristics of Indian Constitution
Conclusion.

Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

Federalism is at its core a system where the dual machinery of government

functions. Generally, under federalism, there are twolevels of government. One is a central
authority which looks after the major affairs of the country. The other is more of a local
government which looks after the day to day functioning and activities of their particular
region.

Federalism is a method of segregating powers so that the Central and local

governments are each within a domain, harmonizing and autonomous. Federalism
postulates a constitutional apparatus for bringing unity in diversity by toning the
divergent forces of centripetal trends in the Country for the attainment of conjoint
national targets.

De
Defin
fin
finit
it
ition:
ion:

According to K.C. Wheare: “The method of dividing powers so that the general
and regional governments are each within a sphere coordinate and independent”.

According to A.V. Dicey, who identified 3 leadings characteristics of a completely

developed federalism.

a. Distribution of powers among governmental bodies

b. Supremacy of the Constitution and
c. The authority of the Courts as the interpreters of the Constitution.

IS T HE CO
CONS
NS
NSTIT
TIT
TITUT
UT
UTIO
IO
IONN OF IND
NDIA
IA FE
FEDE
DE
DERA
RA
RAL?
L?

According to the traditional classification followed by the political scientists,

Constitutions are either unitary or federal. In a unitary Constitution the powers of the
Government are centralised in one government viz., the Central Government. The
provinces are subordinate to the Centre. In a federal Constitution, on the other hand,

3 0
there is a division of powers between the Federal and the State Governments and both
are independent in their own spheres. There is a difference of opinion amongst the
constitutional jurists about the nature of the Indian Constitution. One view is that it is a
quasi-federal constitution and contains more unitary features than federal. The other
view is that it is a federal Constitution with a novel feature of adopting itself to national
emergencies.

Federalism is a basic feature of the Constitution of India in which the Union of India
is permanent and indestructible. Both the Centre and the States are co-operating and
coordinating institutions having independence and ought to exercise their respective
powers with mutual adjustment, respect, understanding and accommodation. The
Indian federalism was devised with a strong Centre. Federalism with a strong Centre
was inevitable as the framers of the Indian Constitution were aware that there were
economic disparities as several areas of India were economically as well as industrially
far behind in comparison to others. The view of the framers of the Constitution is that
the Indian Constitution is a federal constitution. But some Constitutional jurists
hesitate to characterise the Indian Constitution as federal. It is therefore necessary to
ascertain firstly, what federal Constitution is and what are its essential characteristics,
and Secondly, to examine whether our Constitution possesses those characteristics.

According to Prof. Whare “Federal Principles means the method of dividing

powers, so that the general and regional Government are each within a sphere co-
ordinate and independent. Both the federal and the regional Governments are co-
ordinate and independent in their spheres and not subordinate to one another”.

Es
Esse
se
sent
nt
ntial
ial Char
haract
act
acteri
eri
erist
st
stics
ics of a F ede
ederal
ral Cons
onsti
ti
titu
tu
tuti
ti
tion
on

A federal Constitution usually has the following essential characteristics:-

1. Distribution of Powers: In a federal constitution, powers are divided between the

centre and the states in a systematic manner. The central government is provided
with power to look into the matters of national importance. The subjects of
provincial importance are entrusted to the states.
2. Supremacy of the Constitution: The constitution of a federal state is supreme and
powerful. The centre and the states get their powers from the constitution. They
fulfill their obligations and exercise authority within the limitations imposed by the
constitution. They are not allowed to surpass their jurisdiction of authority. The
judiciary declares the acts passed either by the centre or by the states, if they are
against the constitution, as unconditional. Neither the centre nor the states are
allowed to exceed their authority as conferred by the constitution.
3. A Written Constitution: Written constitution is an essential feature of a federal state.
The powers and functions of the government, the rights and liberties of the citizens

3 0
 also incorporated. The relation between the citizens and the government is also
clearly mentioned. In the absence of a written constitution, conflicts may arise
between the centre and the states. This makes the written constitution highly
essential for the successful working of the federation.
4. Rigidity: The constitution of a federal government is not only written but also rigid in
its nature. When the constitution is rigid, there will be no frequent changes. But the
consent of both the centre and the state is necessary for changing its provisions. If
this arrangement is not made, either the centre or states may try to change the
provisions of the constitution for their selfish ends
5. Authority of Courts: A Federal State is featured by the existence on independent
judiciary. The centre and the states have to fulfill their obligations within the
framework of the constitution. However, conflicts may arise between them. In order
to settle such conflicts, federal state establishes an independent judiciary, wherein
judges possess independent position enabling them to deliver independent
judgments honestly, impartially and without any fear or favour. Hence, the judiciary
in federation acts as the final interpreter of the constitution.
The Indian Constitution possesses all the essential characteristics of a federal
Constitution mentioned above. The Constitution establishes a dual polity, a system of
double government with the Central Government at one level and the State Government
at the State level. There is a division of power between the Central and the State
Governments. Each level of Government is supreme in its own sphere. The Constitution
of India is written and is supreme. The provisions of the Constitution which are
concerned with federal principles cannot be altered without the consent of the majority
of the State. The Constitution establishes a Supreme Court to decide disputes between
the Union and the States, or the States inter se interpret finally the provisions of the
Constitution.

Let us now examine what are those provisions of the Constitution which are
produced in support of the above argument and how they modify the strict application
of the federal principle. In the following matters, it is pointed out, the India Constitution
contains the modifications of the federal principle:-
1. Appointment of Governors
2. Parliament’s power to legislate in the national Interest
3. Parliament’s power to form new state and alter boundaries of existing States.
4. Emergency Provisions.

Con
Conclu
clu
clusi
si
sion:
on:
In short, it may be concluded that the Constitution of India is neither purely
federal nor purely unitary but it is a combination of both. It is a union of composite State
of a novel type. It enshrines the principle that inspite of federalism, the national interest
ought to be paramount. Thus, the Indian Constitution is mainly federal with unique

3 0
safeguards for enforcing national unity and growth.

Q.N
Q.No.2
o.2
o.2.. Dis
Discu
cu
cuss
ss the Cen
Centr
tr
tree and S tat
tatee re
relat
lat
latio
io
ions
ns
ns..

SYN
SYNOPS
OPS
OPSIS
IS

Introduction
Centre-State Relations
a. Legislative Relationship
b. Administrative Relationship
c. Financial Relationship

After independence India adopted the federal structure for, perhaps,

administrative convenience. The state did not impose compulsions. That is why limited
autonomy has been given to the states. There is dual policy, with the Union government
at the centre and the state governments at the periphery—each enjoying powers
assigned to them. The autonomy of the states is so adjusted with the centre that the
latter can perform its function of ensuring unity of the country. Pt. Nehru wanted a
happy and harmonious compromise between the strong centre and autonomous states.

The Constitution of India divides powers between the Union and the State
governments. The Seventh Schedule of the Constitution includes three lists of subjects -
the Union List, the State List and the Concurrent List. The Central or Union Government
has exclusive power to make laws on the subjects which are mentioned in the Union
List. The States have the power to make law on the subjects which are included in the
State List. With regard to the Concurrent List, both the Central and State governments
can make laws on the subjects mentioned in the Concurrent List. Finally, the subjects
which are not mentioned in the above three lists are called residuary powers and the
Union government can make law on them 

It may be noted here that in making laws on the subjects of the Concurrent list,
the Central government has more authority than the State governments. And on the
subjects of the State List also the Central government has indirect control. All this
shows that though the Indian Constitution has clearly divided powers between the two
governments, yet the Central government has been made stronger than the State
governments.We can discuss the division of powers between the two governments in
India under three headings, such as,

1. Legislative relations,

2. Administrative relations and

3 0
 3. Financial relations with reference to the three lists.

I. LE
LEGIS
GIS
GISLAT
LAT
LATIV
IV
IVEE RE
RELLATI
ATIONS
ONS
ONS-A
-A
-ART
RT
RTIC
IC
ICLE
LE 24
2466

The legislative relations between the centre and the states determined in
accordance with the provisions of the Article 246 of the Constitution. The legislative
powers are categorized in three lists—Union Lists with 97 subjects, States List with 66
and Concurrent List with 47 subjects.

So far as the legislative relations between the Central government and the State
governments is concerned, the Central government has been given exclusive power to
make law on the subjects of the Union list. The union list has 97 subjects. These
subjects are of great importance for the country and uniform in character. So, these
subjects are given to the Union government. Some such subjects are defense, foreign
affairs, currency and coinage, citizenship, census, etc.

The State governments can make laws on the subjects mentioned in the State list.
The State list has 66 subjects. The subjects which are of local importance and may vary
from State to State are included in the State list. Some subjects of the State list are - law
and order, public health, forests, revenue, sanitation, etc. Though the State governments
have power to make laws on the subjects of the State list, yet the Central government,
on certain occasions, can also make laws on these subjects. For example, during the
period of emergency, the Parliament makes laws on State subjects.

The Concurrent list has 47subjects. On these subjects both the central and the state
governments can make laws. The subjects which are of great importance and uniform
in character but man require local variations, are included in the Concurrent list. In
respect of Concurrent list also, though both the governments can make laws on the
subjects included in the list, yet the laws made by the Central government will prevail
over the State laws in case of a conflict between the two. Some subjects of this list are
– economic planning, social security, electricity, education, printing and news papers,
etc. In case of residuary powers, the Union government has exclusive power to make
laws. The States have nothing to do in this regard.

Thus, we find that in legislative matters, the Union Parliament is very powerful. It has
not only exclusive control over the Union list and the residuary powers, but it has also
dominance over the Concurrent list and the State list.

Th
Thee Re
Resid
sid
siduar
uar
uaryy Po
Power
wer
wers-
s-
s-Ar
Ar
Arti
ti
ticle
cle
cle-- 248

Article 248 vests the residuary powers in the Parliament. It says that Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or the State List. Entry 97 in the Union List also lay down that Parliament

3 0
has exclusive power to make laws with respect to any matter not mentioned in the State
list or the Concurrent List. Residuary legislative powers rest with the Parliament.
Moreover when there is state of emergency, Parliament can make laws on the subjects
given under Union List. In the case of a conflict between the laws made by the state and
the laws passed by the centre the central law will prevail. Clearly the centre is decidedly
stronger as far as legislative powers are concerned.

II. AD
ADMINI
MINI
MINISTR
STR
STRAT
AT
ATIV
IV
IVEE RE
RELAT
LAT
LATIO
IO NS [AR
IONS ARTS-
TS-
TS-256
256
256-2
-2
-263
63 ]

As in legislative matters, in administrative matters also, the Central government has

been made more powerful than the States. The Constitution has made it clear that the
State governments cannot go against the Central government in administrative matters.
The State governments have to work under the supervision and control of the Central
government. The States should exercise its executive powers in accordance with the
laws made by the Parliament. The Central government can make laws for maintaining
good relations between the Centre and the States. It can control the State governments
by directing them to take necessary steps for proper running of administration.

If the State fails to work properly or according to the Constitution, it can impose
President’s rule there under Article 356 and take over its (the State’s) administration.
Again, there are some officials of the Central government, working in the States, through
which it can have control over the State governments.The framers of the Indian
Constitution therefore decided to include detailed provisions to avoid clashes between
centre and states in the administrative domain and to ensure effective Federal
Executive control of matters failing within the Jurisdiction of the Parliament. In order to
ensure smooth and proper functioning to the administrative machinery, they made
provisions for meeting all types of eventualities resulting through the working of
federalism or emergence of new circumstances due to difference of opinion between
the dual authorities

III
III.FI
.FI
.FINANC
NANC
NANCIA
IA
IALL RE
RELAT
LAT
LATIO
IO
IONS
NS [ AR
ARTI
TI
TICLE
CLE
CLES-
S-
S-265
265 TO 29
291]
1]

In financial matters also, the central government is more powerful than the
States. The President of India has the power to make alterations in the distribution of
revenues earned from income-tax between the centre and the States. The Centre has
also the power to great loans and great-in-aid to the State governments. The
Comptroller and Auditor General India and the Finance Commission of India which are
the central agencies also have control over the State finances. Division of financial
powers and functions among different levels of the federal polity are asymmetrical, with
a pronounced bias for revenue taxing powers at the Union level while the States carry
the responsibility for subjects that affect the day to day life of the people entailing larger
expenditure than can be met from their own resources.

3 0
 To run the administration properly, both the Central and the State governments
need adequate sources of income. The income of the government comes mainly from
various taxes imposed by it. In financial relations between the two governments, we will
discuss how the sources of income are adjusted between the two governments. There
are certain taxes like land revenue, tax on agricultural income, estate duty, etc., which
are levied and collected by the States. They are the sources of State revenue. Some
taxes are there like stamp duty, excise on medicine, toilet preparations, etc. which are
levied by the Union but collected and appropriated by the States. There are some other
taxes also which are the sources of income of the Union government alone. They are
revenue earned from railways, posts and telegraphs, wireless, broadcasting, etc.

On an average, the revenue of States from their own resources suffices only for
about 50 to 60 percent of States’ current expenditure. Since the insufficiency of the
States’ fiscal resources had been foreseen at the time of framing the Constitution, a
mechanism in the shape of Finance Commission was provided under article 280 for
financial transfers from the Union. Its function is to ensure orderly and judicious
devolution that is deemed necessary from the point of view of avoiding vertical or
horizontal imbalances.

The Finance Commission is only one stream of transfer of resources from the
Union to the States. The Planning Commission advises the Union Government regarding
the desirable transfer of resources to the States over and above those recommended by
the Finance Commission. Bulk of the transfer of revenue and capital resources from the
Union to the States is determined largely on the advice of these two Commissions. By
and large, such transfers are formula-based. Then there are some discretionary
transfers as well to meet the exigencies of specific situations in individual States.

These institutional arrangements served the country well in the first three
decades after independence. Testifying to the strength of these institutions neither the
Union nor the States suffered from any large imbalance in their budgets, although the
size of the public sector in terms of proportion of government expenditure to Gross
Domestic Product had nearly doubled during this period. Imbalances have become
endemic during the last two decades and have assumed alarming proportions
recently.For this state of affairs, the constitutional provisions can hardly be
blamed.Broadly, the causes have to be sought in the working of the political institutions.
There are shortcomings in the transfer system.For example, the ‘gap-filling’ approach
adopted by the Finance Commission and the soft budget constraints have provided
perverse incentives.The point, however, is that these deficiencies are capable of being
corrected without any change in the Constitution.

Q.N
Q.No.
o. 3. St
State
ate t he Legi
egisl
sl
slati
ati
ative
ve re
relat
lat
lation
ion
ionss be
betwe
twe
tween
en Ce
Cent
nt
ntre
re an
andd the S tat
tatee

3 0
 OR
Di
Discu
scu
scuss
ss t he Cons
onstiti
titu
tu
tutio
tio
tional
nal sche
cheme
me of dis
distr
tr
tribu
ibu
ibuti
ti
tion
on of l egi
egisla
sla
slati
ti
tive
ve pow
power
er
erss bet
betwe
we
ween
en
th
thee Cen
Centr
tr
tree and th
thee St
State
ate
ates s

SYN
SYNOPS
OPS
OPSIS
IS
1. Introduction
2. Constitutional scheme of distribution of legislative powers between the Centre and
the States
3. Conclusion.

Int
Intro
ro
roduc
duc
ductio
tio
tionn
After independence India adopted the federal structure for, perhaps,
administrative convenience. The state did not impose compulsions. That is why limited
autonomy has been given to the states. There is dual policy, with the Union government
at the centre and the state governments at the periphery—each enjoying powers
assigned to them. The autonomy of the states is so adjusted with the centre that the
latter can perform its function of ensuring unity of the country. Pt. Nehru wanted a
happy and harmonious compromise between the strong centre and autonomous states.
Thus the Constitution provides the main aspects relating to Centre and State
relationship.

Cen
Centr
tr
tree – St
Stat
at
atee Re
Relat
lat
latio
io
ionsh
nsh
nship
ip

The Indian Constitution has clearly divided powers between the two governments,
yet the Central government has been made stronger than the State governments.We
can discuss the division of powers between the two governments in India under three
headings, such as,

1. Legislative relations,
2. Administrative relations and
3. Financial relations with reference to the three lists.

Con
Constst
stit
it
ituti
uti
ution
on
onal
al sc
schem
hem
hemee of di
dist
st
strib
rib
ribut
ut
ution
ion of le
legis
gis
gislat
lat
lativ
iv
ivee pow
power
er
erss be
betw
tw
tween
een t he Cent
entre
re an
andd
th
thee Sta
Statete
tess
The legislative relations between the centre and the states determined in
accordance with the provisions of the Article 246 of the Constitution. The legislative
powers are categorized in three lists—Union Lists with 97 subjects, States List with 66
and Concurrent List with 47 subjects.

So far as the legislative relations between the Central government and the State

3 0
governments is concerned, the Central government has been given exclusive power to
make law on the subjects of the Union list. The union list has 97 subjects. These
subjects are of great importance for the country and uniform in character. So, these
subjects are given to the Union government. Some such subjects are defense, foreign
affairs, currency and coinage, citizenship, census, etc.

The State governments can make laws on the subjects mentioned in the State list.
The State list has 66 subjects. The subjects which are of local importance and may vary
from State to State are included in the State list. Some subjects of the State list are - law
and order, public health, forests, revenue, sanitation, etc. Though the State governments
have power to make laws on the subjects of the State list, yet the Central government,
on certain occasions, can also make laws on these subjects. For example, during the
period of emergency, the Parliament makes laws on State subjects.

The Concurrent list has 47subjects. On these subjects both the central and the state
governments can make laws. The subjects which are of great importance and uniform
in character but man require local variations, are included in the Concurrent list. In
respect of Concurrent list also, though both the governments can make laws on the
subjects included in the list, yet the laws made by the Central government will prevail
over the State laws in case of a conflict between the two. Some subjects of this list are
– economic planning, social security, electricity, education, printing and news papers,
etc. In case of residuary powers, the Union government has exclusive power to make
laws. The States have nothing to do in this regard.

Thus, we find that in legislative matters, the Union Parliament is very powerful. It has
not only exclusive control over the Union list and the residuary powers, but it has also
dominance over the Concurrent list and the State list.

Th
Thee Re
Resid
sid
siduar
uar
uaryy Po
Power
wer
wers-
s-
s-Ar
Ar
Arti
ti
ticle
cle
cle-- 248

Article 248 vests the residuary powers in the Parliament. It says that Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or the State List. Entry 97 in the Union List also lay down that Parliament
has exclusive power to make laws with respect to any matter not mentioned in the State
list or the Concurrent List. Residuary legislative powers rest with the Parliament.
Moreover when there is state of emergency, Parliament can make laws on the subjects
given under Union List. In the case of a conflict between the laws made by the state and
the laws passed by the centre the central law will prevail. Clearly the centre is decidedly
stronger as far as legislative powers are concerned.

Princi
Princi
inciple
ple
pless of Int
nterp
erp
erpre
re
retat
tat
tatio
io
ionn of Li
List
st
stss

The powers of Centre and States are divided. They cannot make laws outside their

3 0
allotted subjects. It is true that a particular subject falls in the sphere of one or the other
government. This duty in a federal constitution is vested in the Supreme Court of India.
The Supreme Court have evolved the following principles of interpretation in order to
determine the respective power of the Union and the State under the three lists:

1. Pre
Predom
dom
domina
ina
inance
nce of the U nio
nionn Lis
Listt:-
The opening words of Art.246 expressly secure the predominance of the Union
List over the State List and the Concurrent List and that of the concurrent list over the
State list. Thus in case of overlapping between the Union and the State List it is the
Union List which is to prevail over the State List. In case of overlapping b/w the Union
and the Concurrent List, it is again the Union List which will prevail. In case of conflict
between the Concurrent List and State List, it is the Concurrent List that shall prevail.

2. Eac
Eachh Ent
Entry
ry to be In
Inte
te
terpr
rpr
rpret
et
eted
ed Bro
Broadl
adl
adly:-
y:-
Subject to the overriding predominance of the Union List, entry in the various
lists should be interpreted broadly. In Calcutta Gas Ltd. v/s State of West Bengal:- the
Supreme Court said that the “widest possible” and “most liberal” interpretation should
be given to the language of each entry. The Court should try, as far as possible, to
reconcile entries and to bring harmony between them. When this is not possible only
then the overriding power of the Union Legislature applies and the federal power
prevails.

3. Do
Doctr
ctr
ctrine
ine of Pi
Pith
th an
andd Sub
Subst
st
stance
ance
ance:-
:-
Pith means "true nature" or "essence" and substance means the essential nature
underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding
out the true nature of a statute. This doctrine is widely used when decidingwhether a
state is within its rights to create a statute that involves a subject mentioned in Union
List of the Constitution. The basic idea behind this principle is that an act or a provision
created by the State is valid if the true nature of the act or the provision is about a
subject thatfalls in the State list.

The case ofState of Maharashtra v/s F N Balsara AIR 1951illustrates this

principle very nicely. In this case, the State of Maharashtra passed Bombay
Prohibition Act that prohibited the sale and storage of liquor. This affected the
business of the appellant who used to import liquor. He challenged the act on the
ground that import and export are the subjects that belong in Union list and state
is incapable of making any laws regarding it. SC rejected this argument and held
that the true nature of the act is prohibition of alcohol in the state and this
subject belongs to the State list.

The court looks at the true character and nature of the act having regard
to the purpose, scope, objective, and the effects of its provisions. Therefore, the
fact that the act superficially touches on import of alcohol does not make it

3 0
 invalid.Thus, as held inState of W Bengal vs Kesoram Industries, 2004, the
courts have to ignore the name given to the act by the legislature and must also
disregard the incidental and superficial encroachments of the act and has to see
where the impact of the legislation falls. It must then decide the constitutionality
of the act.

4. Do
Doctr
ctr
ctrine
ine of Co
Colou
lou
lourab
rab
rable
le Le
Legis
gis
gislat
lat
lation
ion
ion:-
:-
This doctrine is based on the principle that what cannot be done directly
cannot be done indirectly. In other words, if the constitution does not permit
certain provision of a legislation, any provision that has the same effect but in a
round about manner is also unconstitutional. In these cases the Court will look in
the true nature and character of the legislation and for that its object, purpose or
design to make law on a subject is relevant and not its motive. If the Legislature
has power to make laws, motive in a making the law is “irrelevant”. This doctrine
is found on the wider doctrine of "fraud on the constitution". A thing is Colourable
when it seems to be one thing in the appearance but another thing underneath. 

In India ‘doctrine of colourable legislation’ signifies only a limitation of the law

making power of the legislature. It comes to know while the legislature
purporting to act within its power but in reality it has transgressed those powers.
So, the doctrine becomes applicable whenever a legislation seeks to do in an
indirect manner what it cannot do directly.

State of Bihar Vs. Kameshwar Singh: This is the only case where a law has
been declared invalid on the ground of colourable legislation. In this case the
Bihar Land Reforms Act,1950, was held void on the ground that though
apparently it purported to lay down principle for determining compensation yet in
reality it did not lay down any such principle and thus indirectly sought to deprive
the petitioner of any compensation.

In the sense that, when the legislature had the power to make a law with
respect to any subject it had all the ancillary and incidental power to make that
law effective, So, the colourable legislation is needed to fix the legislative
accountability with references to some modifications in legislative functions.

Q. No
No.4.
.4. Exp
xplai
lai
lainn und
under
er what circu
circums
ms
msta
ta
tance
nce
ncess t he un
union
ion Par
arliam
liam
liamen
en
entt can legis
legislat
lat
latee on th
thee
sub
subje
je
jects
cts in t he S tat
tate Li
e List
st
st..

Par
Parlia
lia
liamen
men
mentt Po
Powe
we
werr to mak
akee Law
Lawss on Sta
State
te S ubj
ubject
ect
ectss - Art
Arts.
s. 249,
49,25
25
250,2
0,2
0,252,
52, 253 and 25
256]
6]

Though in normal times the distribution of powers must be strictly maintained and

3 0
neither the State nor the Centre can encroach upon the sphere allotted to the other by
the Constitution, Yet in certain exceptional circumstances the above system of
distribution is either suspended or the power of the Union Parliament are extended over
the subjects mentioned in the State List. The exceptional circumstances are:-

1. Pow
Power
er of th
thee Pa
Parli
rli
rliame
ame
ament
nt t o Le
Legis
gis
gislat
lat
latee in t he Nat
ationa
iona
ionall Int
Inter
er
eres
es
est:
t:

According to Art-249, if the Rajya Sabha passes a resolution supported by

rd
2/3 of the members present and voting that it is necessary or expedient in the
national interest that parliament should make laws with respect to any matter
enumerated within the State law. Then it shall be lawful for the Parliament to
make laws for the whole or any part of the territory of India with respect to that
matter so long as the resolution remains in force. Such a resolution lasts for a
year; it may be renewed as many times necessary but not exceeding a year at a
time. These laws of Parliament will, however, cease to have effect on the
expiration of the period of six months after resolution has ceased to operate.

2. Dur
uring
ing a Pr
Procl
ocl
oclama
ama
amatio
tio
tionn of Eme
merg
rg
rgenc
enc
ency:-
y:-
According to Art-250 while the Proclamation of Emergency is in operation the
Parliament shall have power to make laws for the whole or any part of the territory of
India with respect to all matters in the State List. Such a law, however, shall cease to
have effect on the expiration of six months after the proclamation of emergency has
ceased to operate.

3. P arli
arliame
ame
ament
nt
nt’s
’s P owe
owerr to L eg
egisl
isl
islate
ate with the C ons
onsent
ent of th
thee St
State
ate
ates:-
s:-
According to Article 252 if the Legislature of two or more States pass resolution
to the effect that it is desirable to have a law passed by parliament on any matters in the
State List. It shall be lawful for Parliament to make laws regulating that matter. Any
other State may adopt such a law by passing a resolution to that effect .such law can
only be amended or repealed by the Act of Parliament.

4. Par
Parliam
liam
liamen
en
ent’s
t’s Po
Power
wer to Le
Legis
gis
gislat
lat
latee for Giv
Giving
ing Eff
ffect
ect to Tre
reati
ati
aties
es an
andd Int
Intern
ern
ernati
ati
ationa
ona
onall
Agr
Agreem
eem
eemen
en
ents
ts
ts:-
:-
Article-253 empowers the Parliament to make any law for the whole or any
part of the territory of India for implementing treaties and international
agreements and conventions. In other words, the normal distribution of powers
will not stand in the way of Parliament to pass a law for giving effect to an
International obligation even though such law relates to any of the subjects in the
State List. Art.253 enables the Government of India to implement all international
obligations and commitments. Treaties are not required to be ratified by
Parliament. They are, however, not self-operative. Parliamentary legislation will
be necessary for implementing the provisions of a treaty. But laws enacted for
the enforcement of treaties will be subject to the constitutional limits, that is,

3 0
 such a law cannot infringe fundamental right.

5. In Cas
asee of F ailu
ailure
re of Co
Cons
ns
nsti
ti
titut
tut
tutio
io
ional
nal Ma
Machi
chi
chiner
ner
neryy in a St
Stat
at
ate:
e:
e:--

Under Article 256, Parliament is empowered to make laws with respect to all
matters in the State List when the Parliament declares that the Government of the
State cannot be carried on in accordance with the provisions of the Constitution.
Thus from the scheme of distribution of legislative powers between the Union and
the States it is quite evident that the framers have given more powers to the Union
Parliament as against the States. The States are not vested with exclusive
jurisdiction even over the subjects assigned to the states by the Constitution and
thus it makes the States to some extent subordinate to the Centre.

Con
Conclu
clu
clusi
si
sion
on

The Constitution of India divides powers between the Union and the State governments.
The Seventh Schedule of the Constitution includes three lists of subjects - the Union List,
the State List and the Concurrent List. The Central or Union Government has exclusive
power to make laws on the subjects which are mentioned in the Union List. The States
have the power to make law on the subjects which are included in the State List. With
regard to the Concurrent List, both the Central and State governments can make laws
on the subjects mentioned in the Concurrent List. Finally, the subjects which are not
mentioned in the above three lists are called residuary powers and the Union
government can make law on them.

Q.N
Q.No.5
o.5
o.5.. Ex
Explai
plai
plainn the f re
reedo
edo
edomm of Inte
nterr St
State
ate T rad
radee and Co
Comm
mm
mmer
er
erce.
ce.

OR

Elu
Elucid
cid
cidate
ate t he Cons
onsti
ti
titut
tut
tutio
io
ional
nal pr
prov
ov
ovisi
isi
ision
on on Inte
nter-
r- S tat
tatee tr
trade
ade and com
comme
me
merce
rce

SYN
SYNOPS
OPS
OPSIS
IS

1. Introduction

2. The Object of Articles 301 To 307

3. Meaning of the Terms Trade, Commerce and Intercourse

4. Freedom of Inter State Trade and Commerce

5. Limitations/ Restrictions on Trade and Commerce [Articles-302 -305]

6. Conclusion

3 0
 Int
Intro
ro
roduc
duc
ductio
tio
tionn

From the very beginning of its deliberations the Constituent Assembly was
keen to ensure the freedom of inter-State trade and commerce throughout the
Union. In fact, one of the primary purposes of federal Union itself is the
establishment of freedom of commerce. The framers of the Indian Constitution
had the benefit of these experiences at the time of drafting the provisions dealing
with inter-State trade and commerce as embodied in the Constitution. This is why
Articles 301 to 307 form a well-though-out scheme and, in the opinion of one of
the members of the Drafting Committee, "are about as nearly perfect as human
ingenuity could possibly make them."

Th
Thee Obj
Objec
ec
ectt of Art
rticl
icl
icles
es 301 To 307
307::

The objective behind the principle of freedom of inter-State commerce is that

within the country trade and commerce should develop to the largest possible extent
and it should not be hindered by artificial barriers and restrictions imposed by the
various States of the federation. Accordingly, the Constitution has taken into account
the largest interests of India as a whole as well as the interests of particular States and
the wide geography of this country in which the interests of one region differ from those
of another. To an extent the Article 301 of the Indian Constitution could be said to the
derived or influenced from such a philosophy with the objective to protect the National
integrity and unity with the help of hassle free flow of trade throughout the country. An
intention to unify different fields and different regions with the help of this freedom
guaranteed in Art. 301.

The Constitution Makers have borrowed the concept of freedom of trade from
the Australian constitution (Section 92) but the Indian version has a couple of changes
in the scope of its application, and they are:
1. That the freedom guaranteed is not limited to among the states but ‘throughout the
territory of India.
2. The Freedom is not absolute as the rest of the provisions impose several restrictions
and exceptions to this freedom. Another very important aspect of the Part XIII of the
Constitution is that it is not subject to any other part or provision of this constitution.

Article 301 applies not only to inter-State but also intra-state trade, commerce
and intercourse. Thus Article 301 will be violated where restrictions are imposed at the
frontier of a State on any stage prior or subsequent. The freedom guaranteed by Article-
301 is freedom from all restrictions, except those which are provided for in the other
provisions of part XII (Arts-302 to 305). The freedom guaranteed by Article-301 is in the
widest terms and applies to all forms of trade, commerce and intercourse. Article 301
cannot be taken away by an executive action. Restrictions from which the freedom is

3 0
guaranteed should be such restrictions as directly and immediately restrict the free-flow
of movement of trade and not incidental or indirect restriction.

Mea
Meanin
nin
ningg of th
thee Te
Term
rm
rmss Tr
Trade,
ade, Co
Comm
mm
mmerc
erc
ercee and In
Inte
te
terco
rco
rcour
ur
urse
se
se::

The word ‘trade’ means ‘buying’ or ‘selling’ of goods while the term ‘commerce’
includes all forms of transportation such as by land, air or water. The term intercourse
means movement of goods from one place to another place. Thus, the words ‘trade,
commerce and intercourse’ covers all kinds of activities which are likely to come under
the nature of commerce.

Fre
Freedo
edo
edomm of Int
Inter
er Sta
State
te T rad
radee and Com
omme
me
merce
rce
rce::

It is to be note that Art.19(1) (g) also guarantees to citizens the right to practice
any profession or carry on any trade, business, etc. but while Art.19 (1)(g), confers a
fundamental right on citizens to carry on trade business etc. Art.301 confers only a
statutory right. The right under Art.19 (1) (g) can claimed only by citizens but the right
under Art.301 can be claimed by anyone.

The word ‘free’ in Art.301 does not mean freedom from laws or regulations.
There is a clear distinction between laws interfering with freedom to carry out the
activities constituting trade and law imposing rules of proper conduct or other restraints
for the due and orderly manner of carrying out the activities. A purely regulatory and
compensatory law cannot be regarded as violative of the freedom of trade and
commerce. Such laws are intended merely to regulate trade and commerce, they tend,
to facilitate, and not restrict or restrain freedom or trade. Thus such measures as traffic
regulations, price control, economic and social planning, licensing of vehicles, charging
for the maintenance of roads, marketing and health regulations, prescribing minimum
wages are purely regulative measures

Any kind of tax that is levied on any particular activity which involves inter-state
transaction can be taken to be a restriction on the freedom of trade. But as taxes are
also necessary for the functioning of the Centre and the State all of them cannot be
treated as restrictions violating the Article 301.

This question was first brought up in the Atia

tiabar
bar
barii Te
Teaa Co
Co.. v/s St
State
ate of Ass
ssam
am
cas
casee in which the Apex court held that tax laws are not outside the scope of ‘the
Freedom'. And therefore the Assam State Legislature had to amend the provision as to
meet the requirements of the exception in Article 304(b) so that the tax that it imposed
did not amount to a direct and immediate impact of the movement of the goods.

In St
Stat
at
atee of My
Myso
so
sore
re v/s Sa
Sanje
nje
njeevi
evi
eviah,
ah, the Government made a rule under the
Mysore Forest Act, 1900, banning movement of forest produce between sunlight and

3 0
sunrise. The Supreme Court held the rule void as it was not a ‘regulatory’ but ‘restrictive’
measures which infringed the right guaranteed under Art.301.

In Au
Auto
to
tomo
mo
mobil
bil
bilee Tr
Trans
ans
anspo
po
port
rt Ltd
td.. v/s S tat
tatee of Ra
Rajas
jas
jasth
th
than,
an, the appellant challenged
the validity of the Rajasthan Motor Vehicles taxation Act, 1951, as violating Art-301. The
State Govt imposed a tax on all motor vehicles used and kept within the State of
Rajasthan. The Court held that the tax valid as they were only regulatory measures
imposing compensatory taxes for facilitating trade, commerce and intercourse.

Lim
Limit
it
itat
at
ations
ions
ions// R es
estr
tr
trict
ict
ictio
io
ions
ns on Tr
Trade
ade and Comm
ommer
er
erce
ce [ Ar
Arti
ti
ticle
cle
cles-
s-
s-302
302 -30
-305]
5]
5]::

The freedom of trade and commerce is subject to certain limitations which may
be imposed by Parliament or by the Legislatures of the various States, subject to the
fact that the limitations contained in the power of Parliament is confined to cases
arising from scarcity of goods in one part of the territory of India, and in the case of the
States it must be justified on the ground of public interest." Article 301 is general in
scope and enacts that "subject to the other provisions of this Part, trade, commerce and
intercourse throughout the territory of India shall be free". After having stated the
general nature of the freedom of trade and commerce, the Constitution details the
limitations to this freedom.

Th
There
ere are fi
five
ve su
such
ch lilimit
mit
mitat
at
ation
ion
ions:
s:

(1) Parliament may impose restrictions in any part of the territory of India in the
public interest (Art. 302). The purpose of this provision is to allow the
Government of India to restrict the movement of goods so as to safeguard a
well-balanced economy and the proper organisation and ordering of supplies
of goods and services. If Parliament has no effective powers to check such
abnormal situations, freedom of trade and commerce, instead of a blessing,
will become a menace to the freedom of life itself.

(2) Although Parliament is empowered to restrict the free movement or articles

of trade and commerce, normally the laws passed by Parliament in this
context ought to be non-discriminatory in character. In other words, it should
not prefer one State to another. But when any part of the country is suffering
from scarcity of goods, Parliament may, meet such a situation; pass even a
discriminatory law (Art. 303).

(3) A State Legislature may impose on goods imported from other States any tax
if similar goods produced in that State also are taxed in a like manner. A State
Legislature is also authorised to impose reasonable restrictions on the
freedom of trade and commerce with or within that State as may be required
in the public interest (Art. 304).

3 0
 (4) Under Article 305, tax laws existing at the time of the inauguration of the
Constitution were safeguarded even if they violated the freedom of inter-State
trade and commerce and the power of Parliament to regulate it. At the same
time, the President was empowered to make any changes to those laws as he
thought fit. This Article in its present form was added by the Fourth
Amendment of the Constitution, 1955, and it saves also all laws providing for
State monopolies which were passed before the coming into effect of the
Fourth Amendment.

(5) Finally, under Article 307, Parliament is empowered to appoint such authority
as it considers appropriate for carrying out the purposes of Articles 301 to
304 and to confer on that authority such powers and duties as it thinks
necessary.

Con
Conclu
clu
clusi
si
sion:
on: The objective behind the principle of freedom of inter-State commerce is
that within the country trade and commerce should develop to the largest possible
extent and it should not be hindered by artificial barriers and restrictions imposed by the
various States of the federation. The framers of the Indian Constitution had the benefit
of the experiences at the time of drafting the provisions dealing with inter-State trade
and commerce as embodied in the Constitution.

Q.N
Q.No.6
o.6
o.6.. Elu
Elucida
cida
cidate
te t he co
cons
ns
nstit
tit
titut
ut
ution
ion
ional
al Pr
Provi
ovi
ovisio
sio
sions
ns rela
elatin
tin
tingg to Local
ocal-- Se
Self
lf Go
Gover
ver
vernm
nm
nment
ent wit
ithh
rd
sp
speci
eci
ecial
al em
empha
pha
phasis
sis on 73 Ame mendmndm
ndmentent
ent..

Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

The concept of Local Self- Government emerges from man’s basic urge for liberty,
the power to make decisions and to uplift the society as per the needs of the respective
communities. Local Self- Governments are those bodies that look after the
administration of an area or a small community such as a village, a town or a city. Local
Self-Government operates at the lowest level of society. It works at the grass-root level,
close to the people, touching their everyday life. Local Self-Government is the
management of local affairs by such local bodies who have been elected by the local
people. The 73rd and 74th Amendments to the Constitution of India constitute a new
chapter in the process of democratic decentralisation in India

Loc
Local
al Se
Self
lf G ove
overnm
rnm
rnmen
en
entt

Following the enactment of the 73rd Amendment Act, 1992, almost all the States
in India passed legislation in conformity with the provisions of the 73rd Amendment Act.
There are some States which have two tier Panchayats – one at the village level and
second at the district level. And there are also other States where Panchayati Raj
Institution is a three tier system- Gram/ Gaon Panchayat as first level, Samiti, Mandal or

3 0
Anchalik or Taluk or Block or Janapad or Union or Kshetra as second level and Zilla or
District as the third level. At the rural level the Gaon Sabha constitutes the foundation of
the Panchayati Raj system. Gaon Sabha performs the functions and powers entrusted
to it by the state legislatures. The 73rd Amendment Act aims to provide three tier
system in the Local Self Government constituted through elections held regularly every
five years. The Act also provides reservation of seats for Scheduled Castes, Scheduled
Tribes and Women. Moreover, the Act provides for a State Finance Commission to
make recommendations regarding the financial powers of the Panchayats and to
constitute District Planning Committee to prepare draft development plan for the
district. 16 Provision has also been made to constitute a State Election Commission in
every state to supervise, direct and control the regular and smooth elections to
Panchayat bodies.

73r
73rdd Co
Cons
ns
nstit
tit
titut
ut
ution
ion
ional
al Ame
mendm
ndm
ndment
ent

The 73rd Constitutional Amendment Act was passed by the Parliament in

April1993. The Amendment Act has added part IX to the Constitution of India entitled as
‘Panchayats’. The part consists of provisions from Article 243 to 243-0. A new schedule
called as Eleventh Schedule lists 29 functional items that panchayats are supposed to
deal with under Article 243-G.

Th
Thee sa
salien
lien
lientt f eat
eature
ure
uress of th
thee 73r
73rdd Am
Amend
end
endme
me
ment
nt

 Th
Thee Gra
Gramm Sab
Sabha:
ha:
The act provides that a gram sabha will consist of persons registered in the
electoral rolls of a village within the area of a panchayat at the village level. Thus, it
is a village assembly consisting of all the registered voters in the area of the
panchayat. It exercises such powers and performs such functions at the village level
as the legislature of a state determines.

 Th
The e 73r
73rdd Am
Amend
end
endmeme
mentnt ha
hass ad
addre
dre
dress
ss
ssed
ed it
its
self to t his ail
ailme
me
ment
nt an
andd ha
hass pr
provi
ovi
ovided
ded t he
fol
follow
low
lowing
ing for act
activis
ivis
ivisat
at
atio
io
ionn of t his cor
coree in
inst
st
stit
it
ituti
uti
ution
on
on::

(1) Public problems of the village will be discussed and beneficiaries of welfare
programmes would be identified.
(2) The panchayat secretary will be the secretary of the sabha also.
(3) Two compulsory meetings otherwise the sarpanch will be asked to quit.
(4) The quorum of meetings will be one-tenth of the total.
(5) Assistance to panchayat in the execution of rural development schemes.
(6) Vigilance committee of the sabha will keep an eye on the panchayats.
(7) The budget and programmes of the panchayat will keep the suggestions of
the sabha in view.

3 0
 (8) A constitutional status to gram sabhas.

 Th
Thee Th
Three
ree
ree-T
-T
-Tie
ie
ierr Sys
Syste
te
tem:
m:
The Union government has prescribed a uniform three-tier system of
panchayati institutions for a period of five years.

 Re
Rese
se
serva
rva
rvatio
tio
tionn of sea
eats
ts for Sch
Schedu
edu
edule
le cas
castt e and T ri
ribes
bes

The Act provides for the reservation of seats for Scheduled Castes and
Scheduled Tribes in every panchayat (i.e., at all the three levels) in proportion of their
population to the total population in the panchayat area. Further, the state legislature
provides for the reservation of offices of chairpersons in the panchayat at the village
or any other level for the SCs and STs.

 Re
Rese
se
serva
rva
rvatio
tio
tionn of S eat
eatss f or W om
omen
en

It further provides for the reservation of not less than one-third of the total
number of seats for women (including the number of seats reserved for women
belonging the SCs and STs). Further, not less than one-third of the total numbers of
offices of chairpersons in the panchayats at each level are to be reserved for women.

 Re
Rese
se
serva
rva
rvatio
tio
tionn of S eat
eatss in Pan
Panchay
chay
chayats
ats

The Act also authorises the legislature of a state to make any provision for
reservation of seats in any panchayat or offices of chairperson in the panchayat
at any level in favour of backward classes. The term of office is five years but a
panchayat can be dissolved before the completion of its term.

Q.N
Q.No.
o. 7. Exp
xplai
lai
lainn the po
powe
we
wers
rs an
andd fun
functi
cti
ctions
ons of Pr
Pres
es
esiden
iden
identt of India
ndia..

Article 52 of the constitution says that there shall be a President of India. He is the head
of the state. The Executive power of the union, Article 53 says, shall be President. In
accordance with the constitution either directly or through officers subordinate to him.

Qua
Qualif
lif
lifica
ica
icati
ti
tions
ons
ons:-
:- Article 58 lays down the qualifications which a person must possess
for being elected to the office of the President of India;

1. He must be a citizen of India.

2. He must have completed the age of 35 years.

3. He must be qualified for election as a member of the House of the People.

3 0
4. He must not hold any office of profit under the Government of India, or the
Government of any state or under any local or other authority subject to the control of
any of the said Governments.

PO
POWE
WE
WERS
RS AN
ANDD FU
FUNCT
NCT
NCTIO
IO
IONS
NS OF THE PR
PRESI
ESI
ESIDE
DE
DENT
NT
NT::

Democracy is a basic feature of the constitution. The executive power of the Union shall
be vested in the President. He should exercise his powers according to the provisions of
the constitution. Our President is not too strong and not too week. The framers of the
constitution placed him in a unique position. The powers given to the President are not
negligible. Under certain circumstances, the President becomes more powerful, that too
subject to the provisions of the constitution. The various powers are given to the
President of India. The powers of the President can be classified under the following
heads:

1. Ex
Execu
ecu
ecuti
ti
tive
ve Pow
Power
er
er::

The constitution has conferred extensive executive powers on the President. The
executive power of the Union of India is vested in him. He is the head of the Indian
Republic. All executive functions are executed in the name of the President. He has the
power to appoint the Prime Minister and on his advice other Ministers are appointed,
the judges of the Supreme Court, and the High Courts, the Governors of the states, the
Attorney- General, the comptroller and Auditor- General, the Chairman and Members of
the Public Service Commission, the Members of the Finance Commission and Official
Commissions, Special officer for Scheduled Castes and Scheduled Tribes. The above
mentioned officials holds their office during the pleasure of the President. This means
that he has the power to remove them from their post. This power is, however, to be
exercised subject to the procedure prescribed by the constitution.

2. Mili
Milita
ta
tary
ry Po
Powe
we
wer:
r:

The President is the Supreme Commander of the Defence Forces of the Country. He has
power to declare war and peace. However, the exercise of these powers by the
President is “regulated by law”. The Parliament is empowered to regulate or control the
exercise of the military powers by the President. the military power of the Presidents is
thus subordinate to his executive power which is exercisable by him on the advice of
the Cabinet.

3. Le
Legis
gis
gislat
lat
lative
ive Pow
ower:
er:

The President of India is a competent part of the Union Parliament. In theory he

possesses extensive legislative powers. He has power to summon and prorogue the
Parliament and he can dissolve the Lok Sabha. The legislative powers of President are

3 0
in accordance with the aid and advice of Council of Ministers. The Bill shall have to be
passed in both the Houses with Majority. The Bill comes into Law after the President
gives his assent. The President shall give the “Opening Address” of both Houses of
Parliament assembled together at the first session after each general election to the
House of the People and also at commencement of each year. The President has to lay
before the Parliament the Annual Finance Budget, the report of Auditor General, the
recommendations of the Finance Commission, Report of the UPSC etc.

4. Di
Diplo
plo
plomat
mat
matic
ic Powe
owers
rs
rs::

As the head of the Country, the President sends and receives Ambassadors, and other
diplomatic representatives. All treaties and international agreements are negotiated and
concluded in the name of the President though subject to ratification by Parliament.

5. Jud
Judicia
icia
iciall Po
Power
wer
wer::

The President has the power to appoint the Chief justice of Supreme Court and High
Courts and also to appoint other judges of Supreme Court and the High Courts. Under
Article 72 President has power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of
any offence. The object of conferring judicial on the President is to correct the judicial
errors, for no human system of judicial administration can be free from imperfections.

In Mar
Maruu Ra
Ramm v/
v/ss Un
Union
ion of India
ndia,, it has been held that in exercising the pardoning power
the object and the spirit of section 433- A of Cr.P.C. must be kept in view. The power to
pardon is exercised by the President on the advice of the Council of Ministers.

In She
Sherr Sin
Singh
gh v/
v/ss St
State
ate of Pu
Punj
nj
njab,
ab, the Supreme Court in this case held that the mercy
petition must be disposed of within a period of three months from the date of its receipt.
Long delay is also unjustice.

6.E
6.Eme
me
merge
rge
rgency
ncy Pow
ower:
er:

Articles 352-360 of the Constitutions empowers the President with enormous

emergency powers. The emergencies envisaged under the Constitution are of three
kinds: (1) emergency arising out of war, external aggression or armed rebellion, (2)
emergency due to failure of Constitutional machinery in the State, and (3) financial
emergency.

Q.N o.8. Exa

Q.No.8. xami
mi
mine
ne th
thee Con
Const
st
stit
it
itut
ut
ution
ion
ional
al pos
posit
it
ition
ion of th
thee Go
Gover
ver
vernor
nor unde
nderr Ind
Indian
ian Co
Cons
ns
nsti
ti
titut
tut
tutio
io
ion.
n.

 Int
Intro
ro
roduc
duc
ductio
tio
tionn:

The pattern of the government in the State is the same as that for the
Union, that is, a Parliamentary system. The Executive Head is Constitutional

3 0
 Head, who is act according to the advice of the Council of Ministers. The
Constitution of India, by Art.153, creates the office of the Governor. Thus each
State shall have a Governor. However, one person can be appointed Governor for
two or more States. The Executive power of the State is vested in the Governor.
He shall exercise the executive power either directly or through office
subordinate to his. The expression “office subordinate to him” includes a
Minister of the State.

 App
Appoin
oin
ointm
tm
tment
ent of a G ove
overn
rn
rnor
or
or::

The Governor of a State is appointed by the President of India. He is

neither elected by the direct vote of the people nor by an indirect vote by a
specially constituted Electoral College as in the case with the President. He is
the nominee of the Central Government.

 Qua
Qualif
lif
lifica
ica
icati
ti
tions
ons :

According to Article 157, a person to be eligible to be appointed as

Governor must be

(a) Citizen of India

(b) Must have completed the age of 35 years.

(c) He must not be a member of either House of the parliament or of a

House of the Legislature of any State. If a member of either House of
parliament or of a House of the Legislature of any State is appointed
as Governor, he shall be deemed to have vacated his seat in the House
on the Date on which he enters upon his office as Governor.

 Con
Const
st
stit
it
ituti
uti
ution
on
onal
al Po
Posit
sit
sitio
io
ionn of t he G ov
overn
ern
ernor
or
or::

Prior to the 42nd Amendment Act, 1976:- that the executive power of the
State shall be vested in the Governor and shall be exercised by him either directly
or through officers subordinates to him in accordance with the Constitution.

1. There shall be a Governor for each state (Articles 153 of the Constitution of
India).

2. The executive power of the State shall be vested in the Governor and shall
be exercised by him either directly or through officers subordinate to him in
accordance with the Constitution of India (Article 154)

3. The Governor of a State shall be appointed by the President by warrant

under his hand and seal (Article 155).

3 0
4. A person to be eligible for appointment as Governor should be citizen of
India and has completed age of 35 years (Article 157).

5. The Governor shall not be a member of the Legislature or Parliament; shall

not hold any office of profit, shall be entitled to emoluments and allowances.
(Article 158)

6. Every Governor and every person discharging the function of the Governor
shall make a subscribe an oath or Affirmation (Article 159).

7. The President may make such a provision as he thinks fit for the discharge
of the functions of the Governor of a State in any contingency not provided
for in Chapter II of the Constitution.(Article 160).

8. The Governor shall have the power to grant pardons, reprieves, etc. (Article
161).

9. There shall be council of Ministers with the Chief Minister at the head to aid
and advice the Governor in the exercise of his functions except in so far as
he is by or under the Constitution required to exercise his functions or any of
them in his discretion. (Article 163).

10. The Governor appoints Chief Minister and other Ministers.

(Article 164).

11. The Governor appoints the Advocate General for the State. (Article 165).

12. All executive actions, of the Governor of a State shall be expressed to be

taken in the name of Governor. (Article 166).

13. The Governor shall from time to time summon and prorogue the House and
dissolve the Legislative Assembly. (Article 174).

14. The Governor may address the Legislative Assembly....; The Governor may
send messages to the House. (Article 175).

15. Special Address to the House by the Governor. (Article 176).

16. The Governor assents, withholds assent or reserves for the consideration of
the Bill passed by the Legislative Assembly. (Article 200).

17. The Governor shall in respect of every financial year cause to be laid before
the House.... a statement of the estimated receipts and expenditure.(Article
202).

3 0
 18. No demand for a grant shall be made except on the recommendation of
the Governor. (Article 203(3)).

19. The Governor shall ........cause to be laid before the House another statement
showing estimated amount of expenditure. (Article 205).

20. The Governor may promulgate the ordinances under certain circumstances.
(Article 213).

21. The Governor is consulted for appointment of Judges of High Court. (Article
21).

Q.No.9. What is a Mone

oneyy Bil
Billl ? Ex
Expla
pla
plain
in th
thee pr
proce
oce
ocedur
dur
duree of pas
passi
si
sing
ng Mo
Mone
ne
neyy Bill
Bills.
s.

Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

The Parliament has extensive powers and performs a number of functions. The primary
function of a parliament is law making or legislative work. Modern society is so
complex that the laws govern it have necessarily to be complex. While making law
Parliament has to look to the future. As a result of this law making has become a
complex or difficult process. The legislative procedure is initiated in the form of a Bill.

Mea
Meanin
nin
ningg of a Mon
Money
ey Bi
Bill:
ll:

Article 110 of the Constitution defines the term Money Bill as “ a Bill which contains only
provision regarding taxes, borrowings, custody of the Consolidated Fund and the
Contingency Funds, appropriations, declaring of any expenditure as charged on the
Consolidated Fund, receipt and custody of money in the Consolidated Fund, audit of the
accounts of the union or any other incidental matter.

Article 110 of the Constitution deals with Definition of Money Bill:

(1)For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it
contains only provisions dealing with all or any of the following matters, namely
(a)the imposition, abolition, remission, alteration or regulation of any tax;
(b)the regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government of India;
(c)the custody of the consolidated Fund or the Contingency Fund of India, the payment
of moneys into or the withdrawal of moneys from any such Fund;
(d)the appropriation of moneys out of the consolidated Fund of India;
(e)the declaring of any expenditure to be expenditure charged on the Consolidated
Fund of India or the increasing of the amount of any such expenditure;

3 0
(f)the receipt of money on account of the Consolidated Fund of India or the public
account of India or the custody or issue of such money or the audit of the accounts of
the Union or of a State; or
(g)any matter incidental to any of the matters specified in sub clause (a) to (f)

Le
Legis
gis
gislat
lat
lative
ive Pro
roced
ced
cedure
ure for Pas
Passi
si
sing
ng a Mo
Mone
ne
neyy Bill
Bill::

The introduction and adoption of a money bill has a procedure of its own, that is
distinguishable from the adoption of a Non- money bill and also from a Financial Bill in
some respects. That is special procedure has been prescribed for the adoption of a
Money Bill.

Article 109 lays down the procedure of passing Money Bill

1. A Money Bill shall not be introduced in the Rajya Sabha. It shall be introduced only in
the Lok Sabha. A Money Bill can be introduced in the Lok Sabha only with the
recommendation of the President.

2. After a Money Bill has been passed by the Lok Sabha, it shall be transmitted to the
Rajya Sabha for its recommendations.

The Rajya Sabha shall, within a period of 14 days from the receipt of the Bill, return
the Bill to the Lok Sabha with its recommendations. The Lok Sabha may, thereupon,
either accept or reject all or any of the recommendations of the Rajya Sabha.

3. If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the
Money Bill shall be deemed to have been passed by both houses of the Parliament
with the amendments recommended by the Rajya Sabha and accepted by the LOk
Sabha.

4. If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha,
the Money Bill shall be deemed to have been passed by both the houses in the form
in which it was passed by the Lok Sabha without any of the amendments
recommended by the Rajya Sabha.

5. If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha for its
recommendations is not returned by the Rajya Sabha within the said period of 14
days, it shall be deemed to have been passed by both the Houses iat the expiration
of the said period in the form in which it was passed by the Lok Sabha.

6. When a Money Bill has been passed by both the Houses of Parliament, it is
presented to the President with a certificate by the speaker of the Lok Sabha that it
is a Money Bill for his assent.

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7. When a Money Bill is presented to the President for his assent, the President may
either give his assent or refuse his assent. But, since the Money Bill has been
introduced only on the recommendation of the President, and the power to vote a
Money Bill is exercised by the President only on the advice of the cabinet, the
President will be bound to give his assent to the Money Bill.

8. After the President gives his assent to the Money Bill, the Bill becomes an Act.

Q.N
Q.No.
o. 10
10.. Di
Disc
sc
scusus
usss t he Legi
egisla
sla
slati
ti
tive
ve po
powe
we
wers
rs of t he pa
parli
rli
rliam
am
ament
ent spe
pecif
cif
cifica
ica
ically
lly with ref
efer
er
erenc
enc
encee
to Ordi
rdinar
nar
naryy Bil
Billl .

Int
Intro
ro
roduc
duc
ductio
tio
tionn

The Parliament has extensive powers and performs a number of functions. The
primary function of a parliament is law making or legislative work. Modern society is so
complex that the laws govern it have necessarily to be complex. While making law
Parliament has to look to the future. As a result of this law making has become a
complex or difficult process.

The legislative procedure is initiated in the form of a Bill. A Bill contains the Draft
provisions of the Law being proposed. It originates in the Ministry concerned. It goes
over to the Law Ministry for its legal opinion in respect of the Draft Provisions. Then the
cabinet has to consider it. In the light of consultations with the Law Ministry,
discussions and deliberations over the Provisions in the Bill, deletions, alterations, and
amendments may be effected. Finally, the Law Ministry, drafts the provisions and the
Bill will be introduced in either House. In respect of ordinary legislation, the two Houses
enjoy coordinate jurisdiction.

However, a Financial Bill or a Money Bill can be introduced only in the Lok Sabha.
As pointed out earlier basically the Parliament is a law making body. Any proposed law
is introduced in the Parliament as a bill. After being passed by the Parliament and
getting the President’s assent it becomes a law.

Le
Legis
gis
gislat
lat
lative
ive Pro
roces
ces
cesss of Par
Parlia
lia
liame
me
ment:
nt:

. There are three kinds of bills, which come up before the Parliament:-

(i) Ordinary bill

(ii
(ii)) Money bill. and

(iii) Financial Bill

3 0
 Here we shall discuss the legislative procedure in each of these kinds of bills.

 Or
Ordina
dina
dinary
ry Bills

An Ordinary bill, i.e., Bill other than Money Bill and Financial Bill may originate in
either house of the Parliament. The Bill must be passed by the both the Houses of
Parliament then only it can be sent for President’s assent. It becomes a law when it is
assented by the President. Every member of the Parliament has a right to introduce an
ordinary bill and from this point of view, we have two types of bills – government bills
and private member’s bills. A Minister moves a government bill and any bill not moved
by a Minister is a Private Member’s Bill, which means that the bill has been moved by a
member of parliament but not a minister in the Government. The Government bills
consume most of the time of the Parliament. The Bills pass through several stages. : -
(A) First Reading: With the introduction of the bill, the First Reading of the bill starts.
This stage is simple. The Minister wanting to introduce a bill, informs the presiding
officer. He/she puts the question of introduction to the House. When approved,
normally by voice vote, the Minister is called upon to introduce the bill. At this stage no
discussion takes place.
(B) Second Reading: -This stage is the most vital stage. After general discussion the
House has four options: - (i) it may straightaway take the bill into detailed (clause by-
clause) consideration or (ii) refer it to a select committee of the House or, (iii) refers it
to the Joint Committee of both the Houses or (iv) circulate it among the people to elicit
public opinion. If the bill is referred to a select committee of the House or the joint
select committee of both the Houses, the concerned committee examines the bill very
minutely. Each and every clause is examined. The committee may also take the opinion
of professionals and legal experts. After due deliberations, the committee submits its
report to the House.
(C) Third Reading: - After the completion of the second reading, the Minister may move
that the bill be passed. At this stage normally no discussion takes place. The members
may oppose or support the adoption of the bill, by a simple majority of members
present and voting.

 Bill i n th
thee ot
othe
he
herr Ho
Hous
us
use:
e: -After the bill has been passed by one House, it goes to
the other House. Here also the same procedure of three readings is followed.
The following consequences may follow: -
(A) It may pass it; then the bill is sent to the President for his assent.
(B) It may pass the bill with amendments. The bill will be sent back to the first
House. In such a case, the first House will consider the amendments and if it
accepts the amendments then the bill will be sent to President for his assent. In
case the first House refuses to accept the amendments, then it means there is a
deadlock.

3 0
 (C) It may reject it. It means there is a deadlock. In order to remove the deadlock
between the two Houses, the President may call for a joint sitting of the two
Houses. Such joint sittings are very rare in India and till now only three times
such meetings have taken place. They were convened on the occasion of
passage of Dowry Prohibition Bill 1959, Banking Service Commission (Repeal)
Bill, 1978, and Prevention of Terrorism Bill, 2002.
(D) President’s assent to the Bill:- After being passed by both the Houses or the
Joint Sitting of both Houses, the bill is referred to the President for his assent.
The President also has some options in this regard: - (i) He may give his assent
and with his assent, the bill becomes a law. (ii) He may withhold his assent, but
may suggest some changes. In such a case the bill is sent back to the House
from where it had originated. But if both the Houses pass the bill again with or
without accepting the recommendations Stru Structu
ctu
cture
re of Go
Gove
ve
vernm
rnm
rnmen
en
entt of the
President, the President has no option but to give his assent. (iii) In 1986, the
President Giani Zail Singh invented a new option. He neither gave his assent nor
he returned it to the Parliament for reconsideration of the Postal Bill. He sought
some clarifications, which were never provided. The bill thus, lapsed.

Q.N
Q.No.1
o.1
o.11.
1. Ex
Expl
pl
plain
ain brie
riefly
fly t he di
diff
ff
ffer
er
erent
ent kin
inds
ds of Jur
Juris
is
isdic
dic
dictio
tio
tionn ex
exer
er
ercis
cis
cised
ed by t he Su
Supr
pr
prem
em
emee
Cou
Court
rt of In
India.
dia.
Syn
Synops
ops
opsisis
1.Introduction
Different Kinds of Jurisdiction of Supreme Court
a. Court of Records
b. Original Jurisdiction
c. Appellate Jurisdiction and
d. Advisory Jurisdiction
e. Conclusion

Int
Intro
ro
roduc
duc
ductio
tio
tionn
In India, the judiciary has the significant function of enforcing the Fundamental
Rights of people granted to them by the Constitution. Justice Walia has compared the
judiciary to “watering tower above all the big structure of the other limbs of the State
from which it keeps a watch like a sentinel on the function of the other limbs of the
State as to whether they are working in accordance with the law and the Constitution,
the Constitution being supreme”. India has a unified judicial system with the Supreme
Court standing at the apex and the High Courts below it. The Supreme Court thus enjoys
the top most position in the judicial hierarchy of the country. It is the ultimate Court of
appeal in all civil and criminal matters and the final interpreter of law of the land, and
thus helps in maintaining a uniformity of law through out the country.

3 0
Jur
Juris
is
isdict
dict
dictio
io
ionn of t he Su
Supr
pr
prem
em
emee Co
Court
urt
“The Supreme Court in Indian Union has more power than any Supreme Court in any
part of the world”.

 JUR
JURIS
IS
ISDIC
DIC
DICTI
TI ON OF SU
TION SUPR
PR EME COU
PREME COURT
RT
RT::

Jurisdiction of Supreme Court has been divided into three

1. SUP
SUPRERE
REME
ME COU
OURT
RT
RT-- A COU
OURT
RT OF R ECO
ECORR D [A
[ART
RT
RT--129]
Article 129 makes the Supreme Court a ‘Court of record’ and confers all the powers
of such a court including the power to punish for its contempt. A Court of record is a
court whose records are admitted to be of evidentiary value and they are not to be
questioned when they are produced before the court. Once a court is made a Court
of Record, its power to punish for contempt necessarily follows from that position.
The power to punish for contempt of court has been expressly conferred on the
Supreme Court by our Constitution. The Contempt of Court Act, 1971, defines the
power of the Courts for punishing contempt of courts and regulates their procedures.
It also provides for judges to be tried for Contempt of Court. According to Section 2
of the Act, ‘Contempt of Court’ includes both ‘Civil’ and ‘Criminal’ contempt.

II Or
Orig
ig
iginal
inal Juri
urisd
sd
sdict
ict
iction
ion (Ar
(Art-
t-
t-131
131
131))
The original jurisdiction of the court extends to the following two types of cases :
i) Dispute relating to the Union and the States – The following disputes are covered
under this jurisdiction :
a) Any dispute between the Government of India and one or more States; or
b) Disputes between the Government of India and any State or States on the one
side and one or more States on the other side; or
c) Disputes between two or more States.
d) The Supreme Court in its Original Jurisdiction cannot entertain any suits brought
by private individuals against the Government of India.

3 0
 e) The above jurisdiction shall not extend to a dispute arising out of any treaty,
agreement, or covenant or similar document which, having been executed before
the commencement of the Constitution continues in operation after such
commencement.
f) But these disputes may be referred by the President to the Supreme Court for its
advisory opinion.
g) The first suit brought before the Supreme Court was between West Bengal and
Union of India in 1961 to declare the unconstitutionality of the coal bearing Area
Act 1957. In this case the court held that the States under the Constitution are
not sovereign and that the union has authority to acquire compulsorily land
belonging to State Governments.
ii) Disputes/cases Involving the Violation of Fundamental Rights :
The cases involving the violation of Fundamental Rights can be initiated either in the
High Courts or the Supreme Court. Art. 32 of the Constitution gives special
responsibilities to the Supreme Court for the protection of Fundamental Rights of the
citizens. In case of the violation of these rights the Supreme Court can issue the writs in
the nature of Habeas Corpus, Mandamus, quo warranto, prohibition and certiorari.
Article 32 provides a quick remedy for the enforcement of the Fundamental rights under
this Article a person can directly go to the Supreme Court. The Supreme Court has thus
been constituted the protector and guarantor of the fundamental rights.

III
III.. App
Appell ell
ellant
ant juri
urisdi
sdi
sdict
ct
ction
ion
ion-ar
-ar
-art-
t-
t-13
13
1322
Appellate jurisdiction means the right and jurisdiction of the Supreme
Court to entertain appeals against the decisions of the lower courts, e.g., High
Courts. The appellate jurisdiction of the Supreme Court can be divided into
four main categories :
 Con
Const
st
stit
it
ituti
uti
ution
on
onal
al ma
matttt
tters
ers
ers::
Under Article 132 (1) an appeal shall lie to the Supreme Court from any
judgment, decree or final order of a High Court whether in civil, criminal or other
proceedings, if the High Court certifies under Art. 134-A that the case involves a
substantial question of law as to the interpretation of this Constitution. Where
such a certificate is given any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided.

 Civ
Civil
il ma
matt
tt
tters
ers
ers,,
Art 133 provides that an appeal shall lie to the Supreme Court from any judgment,
decree or final order in a civil proceeding of a High Court only if the High Court
certifies (under Art. 134-A).
a) That the case involve a substantial question of law of general importance; and
b) That in the opinion of the High Court the said question needs to be decided by

3 0
 the Supreme Court.
 Cri
Crimi
mi
minal
nal matatter
ter
terss
An appeal in some criminal cases can be made to the Supreme Court against
the judgment of the High Court if the High Court –
a) has reversed the order of acquittal of an accused person and sentenced him
to death; or
b) has withdrawn any case from any subordinate court for trial and sentenced
the accused to death; or
c) Certifies that the case is fit for appeal in the Supreme Court.
According to Article 134 an appeal lies to the Supreme Court from any
judgment, final order or sentence in a criminal proceeding of a High Court in the
following two ways:-
 Spe
Specia
cia
ciall leav
leavee to appe
ppeal.al.
Special Leave Petitions in India(SLP) holds a prime place in the Judiciary of
India, and has been provided as a "residual power" in the hands ofSupreme Court
of Indiato be exercised only in cases when any substantial question of law is
involved, or gross injustice has been done. The Constitution of India under Article
136 vests the Supreme Court of India with a special power to grant special leave,
to appeal against any judgment or order or decree in any matter or cause, passed
or made by any Court/tribunal in the territory of India This is special power,
bestowed upon the Supreme Court of India which is the Apex Court of the
country, to grant leave to appeal against any judgment in case any substantial
constitutional question of law is involved, or gross injustice has been done.
 Spe
Specia
cia
ciall Leav
Leave e pe
petit
tit
titio
io
ionn or SL
SLPP ca
cann be pr
pres
es
esent
ent
ented
ed unde
nderr fo
follo
llo
llowin
win
wingg cir
circum
cum
cumst
st
stan
an
ance:
ce:
1. SLP can be filed against any judgment or decree or order of any High Court
/tribunal in the territory of India. Or,
2. SLP can be filed in case theHigh courtrefuses to grant the certificate of
fitness for appeal to Supreme Court of India..

IV. Adv
Adviso
iso
isory
ry Juri
urisdi
sdi
sdict
ct
ction
ion
According to Art. 143, the Supreme Court has advisory jurisdiction. On the
matters referred to the court for legal advice, by the President. If at any time, it
appears to the President that a question of law has arisen, which is of such
public importance that it is necessary to obtain the advice of the Supreme Court,
he may refer such question to the Court for consideration. The Supreme Court,
may after due consideration; report to the President its opinion on that matter.
The Supreme Court is not bound to give its legal opinion on all matters referred
to it by the President also the President is not bound to abide by such legal
opinion. In Kerala Education Bill case the court had expressed the view that the
advisory opinion of the Supreme Court under Art. 143, though entitled to great

3 0
 respect, is not binding on Courts, because it is not a law within the meaning of
Art. 141. In Re Berubari case in 1960,opinion of the Supreme Court was sought to
find out the manner in which the territory of India could be transferred to
Pakistan.

Q.No.12. How In Indepe

depe
depende
nde
ndence
nce of Judic
udiciar
iar
iaryy is main
aintai
tai
tained
ned unde
nderr t he India
ndiann Con
Const
st
stit
it
itut
ut
ution
ion
ion??
Dis
Discucu
cuss
ss
ss..
Int
Intro
ro
roduc
duc
ductio
tio
tionn:

Only an impartial and independent judiciary can protect the rights of the individual and
provide equal justice without fear or favour. It is, therefore, very necessary that the
Supreme Court should be allowed to perform its functions in an atmosphere of
independence and be free from all kinds of political pressures. The Constitution has
made several provision to ensure independence of Judiciary.

1.S
1.Secu
ecu
ecurit
rit
rityy of T enu
enure
re
re::

The judge of the Supreme Court have security of tenure. They cannot be removed from
office except by an order of the President and that also only on the ground of proved
misbehaviour or incapacity, supported by a resolution adopted by a majority of total
membership of each House and also by a majority of not less than 2/3 of the members
of the house present and voting. Parliament may, however, regulate the procedure for
presentation of the address and for investigation and proof of the misbehaviour or
incapacity of a judge. But Parliament cannot misuse this power, because the special
procedure for their removal must be followed.

2.S
2.Salar
alar
alaryy of Ju
Judge
dge f ix
ixed,
ed, not sub
ubjec
jec
jectt to vo
vote
te of Le
Legis
gis
gislat
lat
latur
ur
ure:
e:

The salaries and allowances of the Judges of the Supreme Court are fixed by the
Constitution and charged on the Consolidated Fund of India. They are not subject to
vote of Legislature. During the term of their office, their salaries and allowances cannot
be altered to their disadvantage except in grave financial emergency.

3.P
3.Parl
arl
arliam
iam
iament
ent can ex
extt end, but cann
annot
ot cu
curt
rt
rtail
ail t he jur
uris
is
isdict
dict
dictio
io
ionn and po
power
wer of t he Su
Supr
pr
preme
eme
Cou
Courtrt
rt::

In respect of its jurisdiction, Parliament may change pecuniary limit for appeals to the
Supreme Court in civil cases, enhance the appellate jurisdiction of the Supreme Court in
civil cases, enhance the appellate jurisdiction of the Supreme Court, confer
supplementary power to enable it to work more effectively, confer power to issue
directions. Order or writs including all the prerogative writs for any purpose other than
those mentioned in Article 32.

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4 . No dis
discus
cus
cussi
si
sion
on in le
legis
gis
gislat
lat
latur
ur
uree on t he con
conduc
duc
ductt of t he judge
udges:
s:

Neither in Parliament nor in a State Legislature a discussion can take place with
respect to the conduct of a Judge of the Supreme Court in discharge of his duties

1. Pow
Power
er t o pun
punish
ish fo
forr its Con
ontem
tem
tempt
pt
pt::

The Supreme Court and the High Court have the power to punish any person for
its contempt. This power is very essential for maintaining the impartiality and
independence of the judiciary.

2. Sep
Separat
arat
aratio
io
ionn of jud
udicia
icia
iciary
ry f rom ex
execu
ecu
ecuti
ti
tive:
ve:

Art. 50 directs the State to take steps to separate the judiciary from the executive
in the public services of the State. It emphasises the need of securing the
judiciary from the interference by the executive.

3. Jud
Judges
ges of t he Su Supr
pr
preme
eme Cour
Courtt are appo
ppoint
int
inted
ed by th
thee Ex
Exec
ec
ecuti
uti
utive
ve wi
with
th t he
con
consu
su
sulta
lta
ltati
ti
tion
on of Leg
Legal
al Ex
Exppert
erts:
s:

The Constitution does not leave the appointment of the judges of the Supreme
Court to the unguided discretion of the executive. The executive is required to
consult judges of the Supreme Court and High Courts in the appointment of the
judges of the Supreme Court. The independence of the Supreme Court is
emphasised by Art.229 which provides that appointment of officers and servants
shall be made by the Chief Justice or such other Judge or officer as may appoint.

4. Pr
Prohib
ohib
ohibit
it
ition
ion on pr
pract
act
actice
ice aft
fter
er R et
etir
ir
ireme
eme
ement
nt
nt::

Art. 124(7) prohibits a retired Judge of the Supreme Court to appear and plead in
any court or before any authority within the territory of India.

Thus the position of the Supreme Court is very strong and its independence is
adequately guaranteed. However, there are certain disturbing trends which are
likely to threaten the independence of judiciary at present.

Q.No.13. Exam
Examine
ine t he pr
prov
ov
ovisi
isi
ision
on
onss re
relati
lati
lating
ng t o tra
trans
ns
nsfe
fe
ferr of Jud
Judges
ges f ro
romm on
one e High Couourt
rt t o
ano
anoth
th
ther
er in t he liligh
gh
ghtt of dedecid
cid
cideded cacase
se
ses.
s. StStat
at
atee whe
whethth
ther
er suc
uchh trtrans
ans
ansfe
fe
fers
rs aff
ffect
ect t he
inde
indepe
pe
pende
nde
ndence
nce of jud
judicia
icia
iciary
ry
ry.

Int
Intro
ro
roduc
duc
ductio
tio
tionn:

The judiciary in states consists of a High Courts and a system of Courts subordinate to
the High Court. Article 214 says that there shall be a High Court in each State. Every
High Court shall consists of a Chief Justice and such other Judges as the President

3 0
may, from time to time, deem it necessary to appoint. Thus the Constitution does not fix
any maximum number of judges of a High Court.

App
Appoin
oin
ointm
tm
tment
ent of Ju
Judge
dge
dges:
s:

Article 217 provides that every judge of a High Court shall be appointed by the President.
the President appoints the Chief Justice of India and the Chief Justice he may consult
even the Chief Justice of the High Court concerned.

Tr
Trans
ans
ansfe
fe
ferr of judg
udges
es f ro
romm one High Cou
Court
rt t o an
anoth
oth
other
er
er::

Article 222(1) empowers the President after consultation with the Chief Justice of India
to transfer a judge from one High Court to any other High Court. Clause (2) makes
provisions for the grant of compensatory allowance to a judge who goes on transfer to
another high Court.

In S . P. Gu
Gupta
pta & ot
othe
he
hers
rs v/s Unio
nionn of In
India,
dia, pop
popula
ula
ularly
rly kno
nown
wn as t he judg
udges
es t ra
ransf
nsf
nsfer
er cas
case.
e.
Article 222 empowers the President of India to transfer judge from one high court to
another. In this case Union law Minister issued a circular on 18th march 1981, addressed
to all the Chief Ministers requesting them to secure from all Additional judges in the
HCs of their respective states prior consent to be appointed as permanent judges in any
other HC for which they were to indicate three HCs of their choice in order of preference.
After issuance of the above circular, the President of India under Art. 224 accorded
short terms were about to expire.

The Circular of Union Law Minister, and in pursuance of the transfers of judges by the
President created great consideration and agitation in the legal circles. The petitioner
was a practising Advocate of the Supreme court challenged the order transfers of
Judges under Art.32. he also prayed to treat his writ petition as PIL.

Jud
Judgem
gem
gemen
en
ent:
t: The Supreme Court held that the circular letter was valid and it did not
affect the Independence of Judiciary. Further it said that the consent of the judge
transferred is not necessary under art. 222. The only requirement is “Consultation” with
the Chief Justice if India which must be effective.

In a hist
istor
or
oric
ic judg
judgem
em
ement
ent
ent,, S.
S.C.
C. Advoc
dvocate
ate
ate-O
-O
-On-
n-
n-RR eco
ecord
rd v/
v/ss Unio
nionn of Indi
ndia,
a, the Supreme
Court overruled the Judges Transfer case and held that in case of transfer of judges of
High Court the opinion of the Chief Justice of India has not the primacy, but is
determinative in the matter. The Chief Justice however required to consult two senior
most judges of the Supreme Court before sending his recommendation for transfer of a
judge from one High Court to another. Any transfer made on such recommendation of
the Chief Justice of India not deemed to be punitive, and such transfer is not justifiable
on any ground.

3 0
In Un
Union
ion of In
India
dia v/
v/ss San
Sankal
kal
kalchan
chan
chand,
d, the constitutionality of a notification issued by the
President by which Justice Sankalchand Sheth of the Gujrat High Court was transferred
to the High Court of Andra Pradesh, was challenged on the ground that the order was
passed without the consent of the Judge and against public interest and without
effective consultation of the Chief Justice of India. The Supreme Court held that a judge
of a High Court could be transferred under Art.222(1) without consent. The power to
transfer a high Court judge is conferred by the Constitution in public interest and not for
the purpose of providing the executive with a weapon to punish a judge who does not
touch its line or who, for some reason or the other, has fallen from its grace.

Once it is accepted that a High Court Judge can be transferred on the ground of public
interest only, the apprehension that the executive may use the power of transfer for its
own ulterior ends and thereby interfere with the Independence of the Judiciary loses its
force. Also Art. 222(1) casts an absolute obligation on the President to consult the Chief
Justice of India before transferring a judge from one High Court to another. That is the
actual condition precedent to the actual transfer of the judge.

The consultation with the Chief Justice of India must be effective one. It means that
while consulting the Chief Justice the President must make the relevant data available
to him on the basis of which he can offer to the President, the benefit of his considered
opinion. If the facts necessary to arrive at a proper conclusion are not mede available to
the Chief Justice , he must ask for them because, in casting on the President the
obligation to consult the Chief Justice, the Constitution at the same time must be taken
to have imposed a duty on the Chief Justice to express his opinion on nothing less than
a full consideration of the matter on which he is entitled to be consulted.

Th
Thee tr
trans
ans
ansfe
fe
ferr of High Cour
ourtt Ju
Judge
dge
dgess f ro
romm on
onee Hig
Highh Cou
Court
rt t o an
anot
ot
other
her will not affe
ffect
ct t he
Ind
Indepe
epe
epende
nde
ndence
nce of JuJudici
dici
diciary
ary
ary.. However, the Supreme Court held that it affected the
independence of the judiciary as it had the coercive effect on the minds of the judges by
implying a threat to them that if they did not give their consent to be transferred to
another Court they would not be continued nor made permanent.

Q.N
Q.No.1
o.1
o.144. Ex
Expl
pl
plain the St
ain the ate l iabi
State lityy for t he acts don
iabilit
lit e by its Ser
done Serva
va
vant.
nt.

SYN
SYNOPS
OPS
OPSIS
IS

1. Introduction

2. State Liability for the acts done by its Servants:

a. Contractual Liability of State [Article-299]

b. Tortuous Liability of State [Article-300]

3 0
 3. Conclusion

Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

In the modern era of a welfare state, government's economic activities are

expanding and the government is increasingly assuming the role of the dispenser of a
large number of benefits. Today a large number of individuals and business
organisations enjoy largess in the form of governmentcontracts, licenses, quotas,
mineral rights, jobs, etc. Thus the Constitution makes theUnionand the States as
juristic personscapable for owning and acquiring property, making contracts, carrying
on trade orbusiness, bringing and defending legal action, just as private individuals.

Sta
State
te Liab
iabilit
ilit
ilityy fo
forr the acts don
donee by it
itss Ser
Servan
van
vants
ts
ts::

Th
The e Stat
State e liliabil
abil
abilit
it
ityy for t he ac
acts
ts do
done
ne i ts Se
Serva
rva
rvant
nt
ntss has bee
eenn clas
classi
si
sifi
fi
fied
ed by th
thee
Con
Const
st
stit
it
ituti
uti
ution
on in
into
to t wo
wo::
1. Contractual Liability of State [Article-299]

2. Tortuous Liability of State [Article-300]

1. Con
Contr
tr
tract
act
actual
ual Liab
iabili
ili
ility
ty of St
State
ate [Ar
[Arti
ti
ticle
cle
cle-2
-2
-299]
99]

Article 299 authorises the Government of India to enter into contract for
any purpose subject to the mode and manner provided by it. All contracts made
in the exercise of the executive power of the Union or of a State shall be
expressed to be made by the President or by the Governor of the State as the
case may be. All such contracts and all assurance of property made in the
exercise of that power shall be executed on behalf of the President or the
Governor. Its execution must be by such persons and in such manner as the
President or the Governor may direct and authorise. The provisions of Article
299(1) are mandatory these provisions have been incorporated to protect the
general public and also the government from unauthorised contract.

A Contract is binding on the Government of India if the following

conditions are fulfilled that-
1. It must be expressed to be made by the President or by the Governor of the State
as the case may be,
2. It must be extended to on behalf of the President or the Governor as the case
may be, and
3. Its execution must be by such person and in such manner as the President or
Governor may direct or authorise.

3 0
 Failure to comply with these conditions nullifies the contract and renders
in void and unenforceable. There is no question of estopple or ratification of the
provisions of Art. 229 (1) of the Constitution. The contractual liability of the state
under Indian Constitution is the same as that of an individual under ordinary law
of contracts. The legal position in this respect has not changed under the present
Constitution. The liability of the States is exactly the same as that of East India
Company before 1858. Although the contracts are made in the name of the
President he is not personally liable in respect of any contract.

 No Pe
Pers
rs
rson
on
onal
al Li
Liabil
abil
ability
ity
ity::

Under Article 299(2) the President or the Governor shall not be personally
liable in respect of any contract or assurance made or executed for the purposes
of this Constitution , or for the purposes of any enactment relating to the
Government of India here.

In Bhi
Bhikr
kr
kraj
aj Ja
Jaipu
ipu
ipuria
ria v/
v/ss Unio
nionn of In
India:
dia: The Court held that if the contract is
not made in the proper form, it is not enforceable.

Uni
Union
on of In
India
dia v/
v/ss A.L
A.L.. Ra
Rallia
llia R am
am:: The Court held that the mere fact the
officer fails to express that he is executing the contract on behalf of the
President can be ignored if the facts given an interference that it has been made
on behalf of the President.

In St
State
ate of Pu
Punja
nja
njabb v/s Om Pr
Prak
ak
akash
ash Balde
aldevv Kr
Krish
ish
ishnan
nan
nan:: The Court held that
the acceptance letter not signed in the name of the Governor by the Executive
Engineer, PWD accepting the tender of the respondent for the construction of a
bridge would not give rise to a valid contract and the respondent could not be
held liable for withdrawing his officer. The provisions of Art.229 are not mere
matters of form but as a matter of public policy, they are meant to protect the
government from unauthorised contract.

2. To
Tort
rt
rtuou
uou
uouss Li
Liabi
abi
abilit
lit
lityy of S tat
tatee [ Art
Artic
ic
icle-
le-
le-30
30
300]
0]

Article 300 of the Constitution says that theGovernment of India may sue or be
sued by the name of the Union of India andGovernment of a State may sue or be sued
by the name of the State, or of the Legislatureof a State. Thus the Constitution makes
theUnionand the States as juristic personscapable for owning and acquiring property,
making contracts, carrying on trade orbusiness, bringing and defending legal action,
just as private individuals. The legal personality of the Union of India, or a State ofIndian
Unionis thus placed beyond doubt by the express language of Article 300.

3 0
 Article 300 (1) provides that the Government of Indiamay be sued in relation to
its affairs in the like case as the Dominion of India, subjectto any law which may be
made by Act of Parliament. The Parliament has not madeany law and therefore the
question has to be determined as to whether the suit wouldlie against the Dominion of
India before the Constitution came into force. Thus, so longas the Parliament or the
State Legislaturedo not enact a law on the point, the legalposition in this respect is the
same as existed before the commencement of theConstitution. Before present
Constitution came into force the East India Company, and afterGovernment of India Act,
1858, which transferred the Government of India to HerMajesty with its rights and
liabilities, the Secretary of State Council were liable for thetortuous acts of their
servants committed in the course of their enjoyment.

The Supreme Court held that the Secretary of State forIndiawas liable for
thedamages caused by the negligence of Government servants, because the negligent
act wasnot done in the exercise of a sovereign function. The Court drew a distinction
betweenacts done in exercise of "sovereign power "and acts done in the exercise
of"non-sovereignpower "that is, acts done in the conduct of undertakings which might
be carried on byprivate person—individuals without having such power.

Th
The e fir
first
st cas
casee on t he po
point
int i s th
thee P. and O. Ste
Steam
am Na
Naviga
viga
vigati
ti
tion
on Co
Co.. v/s Se
Secre
cre
creta
ta
tary
ry
of St
Stat
at
atee fo
forr Ind
India:
ia: The facts of the case were that a servant of the plaintiff (Company)
was travelling from Garden Reach to Calcutta in a carriage driven by a pair of horses.
The accident took place when the coach was passing through the Kidderpore Dockyard
which was Government Dockyard .some government workmen employed in the
Government Dockyard were carrying heavy piece of Iron rod for the purpose of repairing
a steamer. The men carrying a heavy piece of iron rod were going in the middle of the
road. When the carriage of the plaintiff drove up nearer the coaching gave a warning to
the men carrying the iron rod and the coachmen slowed the speed. The men carrying
the iron rod attempted to get out of the way, those in front tried to go the one side of the
road while those behind tried to go the other side of the road. The consequences of this
was a loss of the time, brought the carriage close up to them before they had left the
centre of the road. Seeing the horses and carriage they got alarmed and suddenly
dropped the iron rod and ran away. The iron rod fell with a great noise resulting in
injuries to one horse, which started the plaintiff’s horses which thereupon rushed
forwards violently and fell on the iron rod. The Company filed a suit against the
Secretary of State in Council for the damages fro injury to its horse caused by the
negligence of the servants by the Government of India.

Jud
Judgem
gem
gemen
en
ent:
t: The Supreme Court held that the Secretary of State for India was
liable for the damages caused by the negligence of Government servants, because the
negligent act was not done in the exercise of sovering function. The Court drew a
distinction between acts done in exercise of “Sovereign Power” and acts done in the

3 0
exercise of “Non-Sovereign Power”. That is acts done in the conduct of undertakings
which might be carried on by private person– individuals without having such power.
The liability could only arise in case of “non-sovereign function”. In the present case, the
damage was done to the plaintiff in exercise of the delegated non- sovereign function
hence the government was liable for the torts of its employees. The Secretary of State
was not liable for anything done in the exercise of sovereign powers.

InSt
State
ate of Ra
Rajas
jas
jasth
th
than
an
anv.
v.
v.Vi
Vi
Vidya
dya
dyawat
wat
wati,i,i, the driver of a jeep owned and maintained
bythe State ofRajasthanfor the official use of the Collector of a district, drove it rashly
and negligently while bringing it back from the workshop after repairs and knocked
down a pedestrian and fatally injured him. As a result of the injuries the pedestrian died.
His widow sued the State ofRajasthanfor damages.

The Supreme Court held that the State was liable and awarded damages. The
accident took place while the driver was bringing it back from the workshop to the
Collector's residence. It cannot be said that he was employed on a task which was
based on delegation of sovereign or governmental powersof the State. His act was not
an act in the exercise of a sovereign function. The Court said that the employment of
driver of a jeep car for the use of a civil servant was an activity which was not
connected in any manner with the sovereign power of the State at all.

However, a different note was struck by the Supreme Court itself in Ka Kast
st
sturi
uri Lal
Vs
Vs.. Sta
State
te of UP , AI
AIRR 19
1965
65 S C 103
1039.
9. In that case, the plaintiff had been arrested by the
police officers on a suspicion of possessing stolen property. On a search of his person,
a large quantity of gold was found and was seized under the provisions of the Code of
Criminal Procedure. Ultimately, he was released, but the gold was not returned, as the
Head Constable in charge of the malkhana (wherein the said gold was stored) had
absconded with the gold. The plaintiff thereupon brought a suit against the State of UP
for the return of the gold (or in the alternative) for damages for the loss caused to him.
It was found by the courts below, that the concerned police officers had failed to take
the requisite care of the gold seized from the plaintiff, as provided by the UP Police
Regulations. The trial court decreed the suit, but the decree was reversed on appeal by
the High Court. When the matter was taken to the Supreme Court, the court found, on an
appreciation of the relevant evidence, that the police officers were negligent in dealing
with the plaintiff’s property and also, that they had also not complied with the provisions
of the UP Police Regulations in that behalf. In spite of the said holding, the Supreme
Court rejected the plaintiff’s claim, on the ground that “the act of negligence was
committed by the police officers while dealing with the property of which they had
seized in exercise of theirstatutory powers.

The power to arrest a person, to search him and to seize property found with him,
are powers conferred on the specified officers by statute andin the last analysis, they

3 0
15. Special Address to the House by the Governor. (Article 176).

16. The Governor assents, withholds assent or reserves for the consideration of
the Bill passed by the Legislative Assembly. (Article 200).

17. The Governor shall in respect of every financial year cause to be laid before
the House.... a statement of the estimated receipts and expenditure.(Article
202).

3 0
 18. No demand for a grant shall be made except on the recommendation of
the Governor. (Article 203(3)).

19. The Governor shall ........cause to be laid before the House another statement
showing estimated amount of expenditure. (Article 205).

20. The Governor may promulgate the ordinances under certain circumstances.
(Article 213).

21. The Governor is consulted for appointment of Judges of High Court. (Article
21).

Q.No.9. What is a Mone

oneyy Bil
Billl ? Ex
Expla
pla
plain
in th
thee pr
proce
oce
ocedur
dur
duree of pas
passi
si
sing
ng Mo
Mone
ne
neyy Bill
Bills.
s.
Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

The Parliament has extensive powers and performs a number of functions. The primary
function of a parliament is law making or legislative work. Modern society is so
complex that the laws govern it have necessarily to be complex. While making law
Parliament has to look to the future. As a result of this law making has become a
complex or difficult process. The legislative procedure is initiated in the form of a Bill.

Mea
Meanin
nin
ningg of a Mon
Money
ey Bi
Bill:
ll:

Article 110 of the Constitution defines the term Money Bill as “ a Bill which contains only
provision regarding taxes, borrowings, custody of the Consolidated Fund and the
Contingency Funds, appropriations, declaring of any expenditure as charged on the
Consolidated Fund, receipt and custody of money in the Consolidated Fund, audit of the
accounts of the union or any other incidental matter.

Article 110 of the Constitution deals with Definition of Money Bill:

(1)For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it
contains only provisions dealing with all or any of the following matters, namely
(a)the imposition, abolition, remission, alteration or regulation of any tax;
(b)the regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government of India;
(c)the custody of the consolidated Fund or the Contingency Fund of India, the payment
of moneys into or the withdrawal of moneys from any such Fund;
(d)the appropriation of moneys out of the consolidated Fund of India;
(e)the declaring of any expenditure to be expenditure charged on the Consolidated
Fund of India or the increasing of the amount of any such expenditure;

3 0
(f)the receipt of money on account of the Consolidated Fund of India or the public
account of India or the custody or issue of such money or the audit of the accounts of
the Union or of a State; or
(g)any matter incidental to any of the matters specified in sub clause (a) to (f)

Le
Legis
gis
gislat
lat
lative
ive Pro
roced
ced
cedure
ure for Pas
Passi
si
sing
ng a Mo
Mone
ne
neyy Bill
Bill::

The introduction and adoption of a money bill has a procedure of its own, that is
distinguishable from the adoption of a Non- money bill and also from a Financial Bill in
some respects. That is special procedure has been prescribed for the adoption of a
3 0
Money Bill.
Article 109 lays down the procedure of passing Money Bill

1. A Money Bill shall not be introduced in the Rajya Sabha. It shall be introduced only in
the Lok Sabha. A Money Bill can be introduced in the Lok Sabha only with the
recommendation of the President.

2. After a Money Bill has been passed by the Lok Sabha, it shall be transmitted to the
Rajya Sabha for its recommendations.

The Rajya Sabha shall, within a period of 14 days from the receipt of the Bill, return
the Bill to the Lok Sabha with its recommendations. The Lok Sabha may, thereupon,
either accept or reject all or any of the recommendations of the Rajya Sabha.

3. If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the
Money Bill shall be deemed to have been passed by both houses of the Parliament
with the amendments recommended by the Rajya Sabha and accepted by the LOk
Sabha.

4. If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha,
the Money Bill shall be deemed to have been passed by both the houses in the form
in which it was passed by the Lok Sabha without any of the amendments
recommended by the Rajya Sabha.

5. If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha for its
recommendations is not returned by the Rajya Sabha within the said period of 14
days, it shall be deemed to have been passed by both the Houses iat the expiration
of the said period in the form in which it was passed by the Lok Sabha.

6. When a Money Bill has been passed by both the Houses of Parliament, it is
presented to the President with a certificate by the speaker of the Lok Sabha that it
is a Money Bill for his assent.

3 0
7. When a Money Bill is presented to the President for his assent, the President may
either give his assent or refuse his assent. But, since the Money Bill has been
introduced only on the recommendation of the President, and the power to vote a
Money Bill is exercised by the President only on the advice of the cabinet, the
President will be bound to give his assent to the Money Bill.

8. After the President gives his assent to the Money Bill, the Bill becomes an Act.

Q.N
Q.No.
o. 10
10.. Di
Disc
sc
scusus
usss t he Legi
egisla
sla
slati
ti
tive
ve po
powe
we
wers
rs of t he pa
parli
rli
rliam
am
ament
ent spe
pecif
cif
cifica
ica
ically
lly with ref
efer
er
erenc
enc
encee
to Ordi
rdinar
nar
naryy Bil
Billl .

Int
Intro
ro
roduc
duc
ductio
tio
tionn

The Parliament has extensive powers and performs a number of functions. The
primary function of a parliament is law making or legislative work. Modern society is so
complex that the laws govern it have necessarily to be complex. While making law
Parliament has to look to the future. As a result of this law making has become a
complex or difficult process.

The legislative procedure is initiated in the form of a Bill. A Bill contains the Draft
provisions of the Law being proposed. It originates in the Ministry concerned. It goes
over to the Law Ministry for its legal opinion in respect of the Draft Provisions. Then the
cabinet has to consider it. In the light of consultations with the Law Ministry,
discussions and deliberations over the Provisions in the Bill, deletions, alterations, and
amendments may be effected. Finally, 3 the 0 Law Ministry, drafts the provisions and the
Bill will be introduced in either House. In respect of ordinary legislation, the two Houses
enjoy coordinate jurisdiction.
enjoy coordinate jurisdiction.

However, a Financial Bill or a Money Bill can be introduced only in the Lok Sabha.
As pointed out earlier basically the Parliament is a law making body. Any proposed law
is introduced in the Parliament as a bill. After being passed by the Parliament and
getting the President’s assent it becomes a law.

Le
Legis
gis
gislat
lat
lative
ive Pro
roces
ces
cesss of Par
Parlia
lia
liame
me
ment:
nt:

. There are three kinds of bills, which come up before the Parliament:-

(i) Ordinary bill

(ii)
(ii) Money bill. and

(iii) Financial Bill

3 0
 Here we shall discuss the legislative procedure in each of these kinds of bills.

 Or
Ordina
dina
dinary
ry Bills

An Ordinary bill, i.e., Bill other than Money Bill and Financial Bill may originate in
either house of the Parliament. The Bill must be passed by the both the Houses of
Parliament then only it can be sent for President’s assent. It becomes a law when it is
assented by the President. Every member of the Parliament has a right to introduce an
ordinary bill and from this point of view, we have two types of bills – government bills
and private member’s bills. A Minister moves a government bill and any bill not moved
by a Minister is a Private Member’s Bill, which means that the bill has been moved by a
member of parliament but not a minister in the Government. The Government bills
consume most of the time of the Parliament. The Bills pass through several stages. : -
(A) First Reading: With the introduction of the bill, the First Reading of the bill starts.
This stage is simple. The Minister wanting to introduce a bill, informs the presiding
officer. He/she puts the question of introduction to the House. When approved,
normally by voice vote, the Minister is called upon to introduce the bill. At this stage no
discussion takes place.
(B) Second Reading: -This stage is the most vital stage. After general discussion the
House has four options: - (i) it may straightaway take the bill into detailed (clause by-
clause) consideration or (ii) refer it to a select committee of the House or, (iii) refers it
to the Joint Committee of both the Houses or (iv) circulate it among the people to elicit
public opinion. If the bill is referred to a select committee of the House or the joint
select committee of both the Houses, the concerned committee examines the bill very
minutely. Each and every clause is examined. The committee may also take the opinion
of professionals and legal experts. After due deliberations, the committee submits its
report to the House.
(C) Third Reading: - After the completion of the second reading, the Minister may move
that the bill be passed. At this stage normally no discussion takes place. The members
may oppose or support the adoption of the bill, by a simple majority of members
present and voting.

 Bill i n th
thee ot
othe
he
herr Ho
Hous
us
use:
e: -After the bill has been passed by one House, it goes to
the other House. Here also the same procedure of three readings is followed.
The following consequences may follow: -
(A) It may pass it; then the bill is sent to the President for his assent.
(B) It may pass the bill with amendments. The bill will be sent back to the first
House. In such a case, the first House will consider the amendments and if it
accepts the amendments then the bill will be sent to President for his assent. In
case the first House refuses to accept the amendments, then it means there is a
3 0
deadlock.
(C) It may reject it. It means there is a deadlock. In order to remove the deadlock
between the two Houses, the President may call for a joint sitting of the two
Houses. Such joint sittings are very rare in India and till now only three times
such meetings have taken place. They were convened on the occasion of
passage of Dowry Prohibition 3 Bill 01959, Banking Service Commission (Repeal)
Bill, 1978, and Prevention of Terrorism Bill, 2002.
 (D) President s assent to the Bill:- After being passed by both the Houses or the
Joint Sitting of both Houses, the bill is referred to the President for his assent.
The President also has some options in this regard: - (i) He may give his assent
and with his assent, the bill becomes a law. (ii) He may withhold his assent, but
may suggest some changes. In such a case the bill is sent back to the House
from where it had originated. But if both the Houses pass the bill again with or
without accepting the recommendations Stru Structu
ctu
cture
re of Go
Gove
ve
vernm
rnm
rnmen
en
entt of the
President, the President has no option but to give his assent. (iii) In 1986, the
President Giani Zail Singh invented a new option. He neither gave his assent nor
he returned it to the Parliament for reconsideration of the Postal Bill. He sought
some clarifications, which were never provided. The bill thus, lapsed.

Q.N
Q.No.1
o.1
o.11.
1. Ex
Expl
pl
plain
ain brie
riefly
fly t he di
diff
ff
ffer
er
erent
ent kin
inds
ds of Jur
Juris
is
isdic
dic
dictio
tio
tionn ex
exer
er
ercis
cis
cised
ed by t he Su
Supr
pr
prem
em
emee
Cou
Court
rt of In
India.
dia.
Syn
Synops
ops
opsisis
1.Introduction
Different Kinds of Jurisdiction of Supreme Court
a. Court of Records
b. Original Jurisdiction
c. Appellate Jurisdiction and
d. Advisory Jurisdiction
e. Conclusion

Int
Intro
ro
roduc
duc
ductio
tio
tionn
In India, the judiciary has the significant function of enforcing the Fundamental
Rights of people granted to them by the Constitution. Justice Walia has compared the
judiciary to “watering tower above all the big structure of the other limbs of the State
from which it keeps a watch like a sentinel on the function of the other limbs of the
State as to whether they are working in accordance with the law and the Constitution,
the Constitution being supreme”. India has a unified judicial system with the Supreme
Court standing at the apex and the High Courts below it. The Supreme Court thus enjoys
the top most position in the judicial hierarchy of the country. It is the ultimate Court of
appeal in all civil and criminal matters and the final interpreter of law of the land, and
thus helps in maintaining a uniformity of law through out the country.

3 0
Jur
Juris
is
isdict
dict
dictio
io
ionn of t he Su
Supr
pr
prem
em
emee Co
Court
urt
“The Supreme Court in Indian Union has more power than any Supreme Court in any
part of the world”.

 JUR
JURIS
IS
ISDIC
DIC
DICTI
TI
TION
ON OF SU
SUPR
PR
PREME
EME COU
COURT
RT
RT::

Jurisdiction of Supreme Court has been divided into three

3 0
1. SUP
SUPRE
RE
REME
ME COU
OURT
RT
RT-- A COU
OURT
RT OF R ECO
ECORR D [A
[ART
RT
RT--129]
Article 129 makes the Supreme Court a ‘Court of record’ and confers all the powers
 of such a court including the power to punish for its contempt. A Court of record is a
court whose records are admitted to be of evidentiary value and they are not to be
questioned when they are produced before the court. Once a court is made a Court
of Record, its power to punish for contempt necessarily follows from that position.
The power to punish for contempt of court has been expressly conferred on the
Supreme Court by our Constitution. The Contempt of Court Act, 1971, defines the
power of the Courts for punishing contempt of courts and regulates their procedures.
It also provides for judges to be tried for Contempt of Court. According to Section 2
of the Act, ‘Contempt of Court’ includes both ‘Civil’ and ‘Criminal’ contempt.

II Or
Orig
ig
iginal
inal Juri
urisd
sd
sdict
ict
iction
ion (Ar
(Art-
t-
t-131
131
131))
The original jurisdiction of the court extends to the following two types of cases :
i) Dispute relating to the Union and the States – The following disputes are covered
under this jurisdiction :
a) Any dispute between the Government of India and one or more States; or
b) Disputes between the Government of India and any State or States on the one
side and one or more States on the other side; or
c) Disputes between two or more States.
d) The Supreme Court in its Original Jurisdiction cannot entertain any suits brought
by private individuals against the Government of India.

3 0
 e) The above jurisdiction shall not extend to a dispute arising out of any treaty,
agreement, or covenant or similar document which, having been executed before
the commencement of the Constitution continues in operation after such
commencement.
f) But these disputes may be referred by the President to the Supreme Court for its
advisory opinion.
g) The first suit brought before the Supreme Court was between West Bengal and
Union of India in 1961 to declare the unconstitutionality of the coal bearing Area
Act 1957. In this case the court held that the States under the Constitution are
not sovereign and that the union has authority to acquire compulsorily land
belonging to State Governments.
ii) Disputes/cases Involving the Violation of Fundamental Rights :
The cases involving the violation of Fundamental Rights can be initiated either in the
High Courts or the Supreme Court. Art. 32 of the Constitution gives special
responsibilities to the Supreme Court for the protection of Fundamental Rights of the
citizens. In case of the violation of these rights the Supreme Court can issue the writs in
the nature of Habeas Corpus, Mandamus, quo warranto, prohibition and certiorari.
Article 32 provides a quick remedy for the enforcement of the Fundamental rights under
this Article a person can directly go to the Supreme Court. The Supreme Court has thus
been constituted the protector and guarantor of the fundamental rights.

III
III.. App
Appell ell
ellant
ant juri
urisdi
sdi
sdict
ct
ction
ion
ion-ar
-ar
-art-
t-
t-13
13
1322
Appellate jurisdiction means the right and jurisdiction of the Supreme
Court to entertain appeals against the decisions of the lower courts, e.g., High
Courts. The appellate jurisdiction of the Supreme Court can be divided into
four main categories :
 Con
Const
st
stit
it
ituti
uti
ution
on al ma
onal matttt
tters
ers
ers::
Under Article 132 (1) an appeal shall lie to the Supreme Court from any
judgment, decree or final order of a High Court whether in civil, criminal or other
proceedings, if the High Court certifies under Art. 134-A that the case involves a
substantial question of law as to the interpretation of this Constitution. Where
such a certificate is given any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided.
3 0
 Civ
Civil
il ma
matt
tt
tters
ers
ers,,
Art 133 provides that an appeal shall lie to the Supreme Court from any judgment,
decree or final order in a civil proceeding of a High Court only if the High Court
certifies (under Art. 134-A).
a) That the case involve a substantial question of law of general importance; and
b) That in the opinion of the High Court the said question needs to be decided by

3 0
 the Supreme Court.
 Cri
Crimi
mi
minal
nal matatter
ter
terss
An appeal in some criminal cases can be made to the Supreme Court against
the judgment of the High Court if the High Court –
a) has reversed the order of acquittal of an accused person and sentenced him
to death; or
b) has withdrawn any case from any subordinate court for trial and sentenced
the accused to death; or
c) Certifies that the case is fit for appeal in the Supreme Court.
According to Article 134 an appeal lies to the Supreme Court from any
judgment, final order or sentence in a criminal proceeding of a High Court in the
following two ways:-
 Spe
Specia
cia
ciall leav
leavee to appe
ppeal.al.
Special Leave Petitions in India(SLP) holds a prime place in the Judiciary of
India, and has been provided as a "residual power" in the hands ofSupreme Court
of Indiato be exercised only in cases when any substantial question of law is
involved, or gross injustice has been done. The Constitution of India under Article
136 vests the Supreme Court of India with a special power to grant special leave,
to appeal against any judgment or order or decree in any matter or cause, passed
or made by any Court/tribunal in the territory of India This is special power,
bestowed upon the Supreme Court of India which is the Apex Court of the
country, to grant leave to appeal against any judgment in case any substantial
constitutional question of law is involved, or gross injustice has been done.
 Spe
Specia
cia
ciall Leav
Leave e pe
petit
tit
titio
io
ionn or SL
SLPP ca
cann be pr
pres
es
esent
ent
ented
ed unde
nderr fo
follo
llo
llowin
win
wingg cir
circum
cum
cumst
st
stan
an
ance:
ce:
1. SLP can be filed against any judgment or decree or order of any High Court
/tribunal in the territory of India. Or,
2. SLP can be filed in case theHigh courtrefuses to grant the certificate of
fitness for appeal to Supreme Court of India..

IV. Adv
Adviso
iso
isory
ry Juri
urisdi
sdi
sdict
ct
ction
ion
According to Art. 143, the Supreme Court has advisory jurisdiction. On the
matters referred to the court for legal advice, by the President. If at any time, it
appears to the President that a question of law has arisen, which is of such
public importance that it is necessary to obtain the advice of the Supreme Court,
he may refer such question to the Court for consideration. The Supreme Court,
may after due consideration; report to the President its opinion on that matter.
The Supreme Court is not bound to give its legal opinion on all matters referred
to it by the President also the President is not bound to abide by such legal
opinion. In Kerala Education Bill case the court had expressed the view that the
advisory opinion of the Supreme Court under Art. 143, though entitled to great

3 0
 respect, is not binding on Courts, because it is not a law within the meaning of
Art. 141. In Re Berubari case in 1960,opinion of the Supreme Court was sought to
find out the manner in which the territory of India could be transferred to
Pakistan.

Q.No.12. How IndepeIndepe

depende
nde nce of Judic
ndence iaryy is main
udiciar
iar aintai
tai ned unde
tained nderr t he India
ndiann Con
Const
st
stit
it
itut
ut
ution
ion
ion??
Dis
Discucu
cuss
ss
ss..
Int
Intro
ro
roduc
duc
ductio
tio
tionn:

Only an impartial and independent judiciary can protect the rights of the individual and
provide equal justice without fear or favour. It is, therefore, very necessary that the
Supreme Court should be allowed to perform its functions in an atmosphere of
independence and be free from all3kinds0 of political pressures. The Constitution has
made several provision to ensure independence of Judiciary.
1.S
1.Secu
ecu rityy of T enu
ecurit
rit enure
re
re::

The judge of the Supreme Court have security of tenure. They cannot be removed from
office except by an order of the President and that also only on the ground of proved
misbehaviour or incapacity, supported by a resolution adopted by a majority of total
membership of each House and also by a majority of not less than 2/3 of the members
of the house present and voting. Parliament may, however, regulate the procedure for
presentation of the address and for investigation and proof of the misbehaviour or
incapacity of a judge. But Parliament cannot misuse this power, because the special
procedure for their removal must be followed.

2.S
2.Salar
alar
alaryy of Ju
Judge
dge f ix
ixed,
ed, not sub
ubjec
jec
jectt to vo
vote
te of Le
Legis
gis
gislat
lat
latur
ur
ure:
e:

The salaries and allowances of the Judges of the Supreme Court are fixed by the
Constitution and charged on the Consolidated Fund of India. They are not subject to
vote of Legislature. During the term of their office, their salaries and allowances cannot
be altered to their disadvantage except in grave financial emergency.

3.P
3.Parl
arl
arliam
iam
iament
ent can ex
extt end, but cann
annot
ot cu
curt
rt
rtail
ail t he jur
uris
is
isdict
dict
dictio
io
ionn and po
power
wer of t he Su
Supr
pr
preme
eme
Cou
Courtrt
rt::

In respect of its jurisdiction, Parliament may change pecuniary limit for appeals to the
Supreme Court in civil cases, enhance the appellate jurisdiction of the Supreme Court in
civil cases, enhance the appellate jurisdiction of the Supreme Court, confer
supplementary power to enable it to work more effectively, confer power to issue
directions. Order or writs including all the prerogative writs for any purpose other than
those mentioned in Article 32.

3 0
4 . No dis
discus
cus
cussi
si
sion
on in le
legis
gis
gislat
lat
latur
ur
uree on t he con
conduc
duc
ductt of t he judge
udges:
s:

Neither in Parliament nor in a State Legislature a discussion can take place with
respect to the conduct of a Judge of the Supreme Court in discharge of his duties

1. Pow
Power
er t o pun
punish
ish fo
forr its Con
ontem
tem
tempt
pt
pt::

The Supreme Court and the High Court have the power to punish any person for
its contempt. This power is very essential for maintaining the impartiality and
independence of the judiciary.

2. Sep
Separat
arat
aratio
io
ionn of jud
udicia
icia
iciary
ry f rom ex
execu
ecu
ecuti
ti
tive:
ve:

Art. 50 directs the State to take steps to separate the judiciary from the executive
in the public services of the State. It emphasises the need of securing the
judiciary from the interference by the executive.

3. Jud
Judges
ges of t he Su Supr
pr
preme
eme Cour
Courtt are appo
ppoint
int
inted
ed by th
thee Ex
Exec
ec
ecuti
uti
utive
ve wi
with
th t he
con
consu
su
sulta
lta
ltati
ti
tion
on of Leg
Legal
al Ex
Exppert
erts:
s:

The Constitution does not leave the appointment of the judges of the Supreme
Court to the unguided discretion of the executive. The executive is required to
consult judges of the Supreme Court and High Courts in the appointment of the
judges of the Supreme Court. The independence of the Supreme Court is
emphasised by Art.229 which provides that appointment of officers and servants
shall be made by the Chief Justice or such other Judge or officer as may appoint.

4. Pr
Prohib
ohib
ohibit
it
ition
ion on pr
pract
act
actice
ice aft
fter
er R et
etir
ir
ireme
eme
ement
nt
nt::

Art. 124(7) prohibits a retired Judge of the Supreme Court to appear and plead in
any court or before any authority
3 within
0 the territory of India.

Thus the position of the Supreme Court is very strong and its independence is
 adequately guaranteed. However, there are certain disturbing trends which are
likely to threaten the independence of judiciary at present.

Q.No.13. Exam
Examine
ine t he pr
prov
ov
ovisi
isi
ision
on
onss re
relati
lati
lating
ng t o tra
trans
ns
nsfe
fe
ferr of Jud
Judges
ges f ro
romm on
one e High Couourt
rt t o
ano
anoth
th
ther
er in t he liligh
gh
ghtt of dedecid
cid
cideded cacase
se
ses.
s. StStat
at
atee whe
whethth
ther
er suc
uchh trtrans
ans
ansfe
fe
fers
rs aff
ffect
ect t he
inde
indepe
pe
pende
nde
ndence
nce of jud
judicia
icia
iciary
ry
ry.

Int
Intro
ro
roduc
duc
ductio
tio
tionn:

The judiciary in states consists of a High Courts and a system of Courts subordinate to
the High Court. Article 214 says that there shall be a High Court in each State. Every
High Court shall consists of a Chief Justice and such other Judges as the President

3 0
may, from time to time, deem it necessary to appoint. Thus the Constitution does not fix
any maximum number of judges of a High Court.

App
Appoin
oin
ointm
tm
tment
ent of Ju
Judge
dge
dges:
s:

Article 217 provides that every judge of a High Court shall be appointed by the President.
the President appoints the Chief Justice of India and the Chief Justice he may consult
even the Chief Justice of the High Court concerned.

Tr
Trans
ans
ansfe
fe
ferr of judg
udges
es f ro
romm one High Cou
Court
rt t o an
anoth
oth
other
er
er::

Article 222(1) empowers the President after consultation with the Chief Justice of India
to transfer a judge from one High Court to any other High Court. Clause (2) makes
provisions for the grant of compensatory allowance to a judge who goes on transfer to
another high Court.

In S . P. Gu
Gupta
pta & ot
othe
he
hers
rs v/s Unio
nionn of In
India,
dia, pop
popula
ula
ularly
rly kno
nown
wn as t he judg
udges
es t ra
ransf
nsf
nsfer
er cas
case.
e.
Article 222 empowers the President of India to transfer judge from one high court to
another. In this case Union law Minister issued a circular on 18th march 1981, addressed
to all the Chief Ministers requesting them to secure from all Additional judges in the
HCs of their respective states prior consent to be appointed as permanent judges in any
other HC for which they were to indicate three HCs of their choice in order of preference.
After issuance of the above circular, the President of India under Art. 224 accorded
short terms were about to expire.

The Circular of Union Law Minister, and in pursuance of the transfers of judges by the
President created great consideration and agitation in the legal circles. The petitioner
was a practising Advocate of the Supreme court challenged the order transfers of
Judges under Art.32. he also prayed to treat his writ petition as PIL.

Jud
Judgem
gem
gemen
en
ent:
t: The Supreme Court held that the circular letter was valid and it did not
affect the Independence of Judiciary. Further it said that the consent of the judge
transferred is not necessary under art. 222. The only requirement is “Consultation” with
the Chief Justice if India which must be effective.

In a hist
istor
or
oric
ic judg
judgem
em
ement
ent
ent,, S.
S.C.
C. Advoc
dvocate
ate
ate-O
-O
-On-
n-
n-RR eco
ecord
rd v/
v/ss Unio
nionn of Indi
ndia,
a, the Supreme
Court overruled the Judges Transfer case and held that in case of transfer of judges of
High Court the opinion of the Chief Justice of India has not the primacy, but is
determinative in the matter. The Chief Justice however required to consult two senior
most judges of the Supreme Court before sending his recommendation for transfer of a
judge from one High Court to another. Any transfer made on such recommendation of
the Chief Justice of India not deemed to be punitive, and such transfer is not justifiable
on any ground.

3 0
In Un
Union
ion of In
India
dia v/
v/ss San
Sankal
kal
kalchan
chan
chand,
d, the constitutionality of a notification issued by the
President by which Justice Sankalchand Sheth of the Gujrat High Court was transferred
to the High Court of Andra Pradesh, was challenged on the ground that the order was
passed without the consent of the Judge and against public interest and without
effective consultation of the Chief Justice of India. The Supreme Court held that a judge
of a High Court could be transferred under Art.222(1) without consent. The power to
transfer a high Court judge is conferred3
by0 the Constitution in public interest and not for
the purpose of providing the executive with a weapon to punish a judge who does not
touch its line or who, for some reason or the other, has fallen from its grace.
Once it is accepted that a High Court Judge can be transferred on the ground of public
interest only, the apprehension that the executive may use the power of transfer for its
own ulterior ends and thereby interfere with the Independence of the Judiciary loses its
force. Also Art. 222(1) casts an absolute obligation on the President to consult the Chief
Justice of India before transferring a judge from one High Court to another. That is the
actual condition precedent to the actual transfer of the judge.

The consultation with the Chief Justice of India must be effective one. It means that
while consulting the Chief Justice the President must make the relevant data available
to him on the basis of which he can offer to the President, the benefit of his considered
opinion. If the facts necessary to arrive at a proper conclusion are not mede available to
the Chief Justice , he must ask for them because, in casting on the President the
obligation to consult the Chief Justice, the Constitution at the same time must be taken
to have imposed a duty on the Chief Justice to express his opinion on nothing less than
a full consideration of the matter on which he is entitled to be consulted.

Th
Thee tr
trans
ans
ansfe
fe
ferr of High Cour
ourtt Ju
Judge
dge
dgess f ro
romm on
onee Hig
Highh Cou
Court
rt t o an
anot
ot
other
her will not affe
ffect
ct t he
Ind
Indepe
epe
epende
nde
ndence
nce of JuJudici
dici
diciary
ary
ary.. However, the Supreme Court held that it affected the
independence of the judiciary as it had the coercive effect on the minds of the judges by
implying a threat to them that if they did not give their consent to be transferred to
another Court they would not be continued nor made permanent.

Q.N
Q.No.1
o.1
o.144. Ex
Expl
pl
plain
ain th
thee St
State
ate l iabi
iabilit
lit
lityy for t he acts don
donee by its Ser
Serva
va
vant.
nt.

SYN
SYNOPS
OPS
OPSIS
IS

1. Introduction

2. State Liability for the acts done by its Servants:

a. Contractual Liability of State [Article-299]

b. Tortuous Liability of State [Article-300]

3 0
 3. Conclusion

Int
Intro
ro
roduc
duc
ductio
tio
tion:
n:

In the modern era of a welfare state, government's economic activities are

expanding and the government is increasingly assuming the role of the dispenser of a
large number of benefits. Today a large number of individuals and business
organisations enjoy largess in the form of governmentcontracts, licenses, quotas,
mineral rights, jobs, etc. Thus the Constitution makes theUnionand the States as
juristic personscapable for owning and acquiring property, making contracts, carrying
on trade orbusiness, bringing and defending legal action, just as private individuals.

Sta
State
te Liab
iabilit
ilit
ilityy fo
forr the acts don
donee by it
itss Ser
Servan
van
vants
ts
ts::

Th
The e Stat
State e liliabil
abil
abilit
it
ityy for t he ac
acts
ts do
done
ne i ts Se
Serva
rva
rvant
nt
ntss has bee
eenn clas
classi
si
sifi
fi
fied
ed by th
thee
Con
Const
st
stit
it
ituti
uti
ution
on in
into
to t wo
wo::
1. Contractual Liability of State [Article-299]

2. Tortuous Liability of State [Article-300]

1. Con
Contr
tr
tract
act
actual
ual Liab
iabili
ili
ility
ty of St
State
ate [Ar
[Arti
ti
ticle
cle
cle-2
-2
-299]
99]

Article 299 authorises3the Government

0 of India to enter into contract for
any purpose subject to the mode and manner provided by it. All contracts made
 in the exercise of the executive power of the Union or of a State shall be
expressed to be made by the President or by the Governor of the State as the
case may be. All such contracts and all assurance of property made in the
exercise of that power shall be executed on behalf of the President or the
Governor. Its execution must be by such persons and in such manner as the
President or the Governor may direct and authorise. The provisions of Article
299(1) are mandatory these provisions have been incorporated to protect the
general public and also the government from unauthorised contract.

A Contract is binding on the Government of India if the following

conditions are fulfilled that-
1. It must be expressed to be made by the President or by the Governor of the State
as the case may be,
2. It must be extended to on behalf of the President or the Governor as the case
may be, and
3. Its execution must be by such person and in such manner as the President or
Governor may direct or authorise.

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 Failure to comply with these conditions nullifies the contract and renders
in void and unenforceable. There is no question of estopple or ratification of the
provisions of Art. 229 (1) of the Constitution. The contractual liability of the state
under Indian Constitution is the same as that of an individual under ordinary law
of contracts. The legal position in this respect has not changed under the present
Constitution. The liability of the States is exactly the same as that of East India
Company before 1858. Although the contracts are made in the name of the
President he is not personally liable in respect of any contract.

 No Pe
Pers
rs
rson
on
onal
al Li
Liabil
abil
ability
ity
ity::

Under Article 299(2) the President or the Governor shall not be personally
liable in respect of any contract or assurance made or executed for the purposes
of this Constitution , or for the purposes of any enactment relating to the
Government of India here.

In Bhi
Bhikr
kr
kraj
aj Ja
Jaipu
ipu
ipuria
ria v/
v/ss Unio
nionn of In
India:
dia: The Court held that if the contract is
not made in the proper form, it is not enforceable.

Uni on of In
Union India v/s A.L
dia v/s Rallia R am
A.L.. Rallia am:: The Court held that the mere fact the
officer fails to express that he is executing the contract on behalf of the
President can be ignored if the facts given an interference that it has been made
on behalf of the President.

In St
State
ate of Pu
Punja
nja
njabb v/s Om Pr
Prak
ak
akash
ash Balde
aldevv Kr
Krish
ish
ishnan
nan
nan:: The Court held that
the acceptance letter not signed in the name of the Governor by the Executive
Engineer, PWD accepting the tender of the respondent for the construction of a
bridge would not give rise to a valid contract and the respondent could not be
held liable for withdrawing his officer. The provisions of Art.229 are not mere
matters of form but as a matter of public policy, they are meant to protect the
government from unauthorised contract.

2. To
Tort
rt
rtuou
uou
uouss Li
Liabi
abi
abilit
lit
lityy of S tat
tatee [ Art
Artic
ic
icle-
le-
le-30
30
300]
0]

Article 300 of the Constitution says that theGovernment of India may sue or be
sued by the name of the Union of India andGovernment of a State may sue or be sued
by the name of the State, or of the Legislatureof
3 0
a State. Thus the Constitution makes
theUnionand the States as juristic personscapable for owning and acquiring property,
making contracts, carrying on trade orbusiness, bringing and defending legal action,
just as private individuals. The legal personality of the Union of India, or a State ofIndian
Unionis thus placed beyond doubt by the express language of Article 300.

Article 300 (1) provides that the Government of Indiamay be sued in relation to
3 0
its affairs in the like case as the Dominion of India, subjectto any law which may be
made by Act of Parliament. The Parliament has not madeany law and therefore the
question has to be determined as to whether the suit wouldlie against the Dominion of
India before the Constitution came into force. Thus, so longas the Parliament or the
State Legislaturedo not enact a law on the point, the legalposition in this respect is the
same as existed before the commencement of theConstitution. Before present
Constitution came into force the East India Company, and afterGovernment of India Act,
1858, which transferred the Government of India to HerMajesty with its rights and
liabilities, the Secretary of State Council were liable for thetortuous acts of their
servants committed in the course of their enjoyment.

The Supreme Court held that the Secretary of State forIndiawas liable for
thedamages caused by the negligence of Government servants, because the negligent
act wasnot done in the exercise of a sovereign function. The Court drew a distinction
betweenacts done in exercise of "sovereign power "and acts done in the exercise
of"non-sovereignpower "that is, acts done in the conduct of undertakings which might
be carried on byprivate person—individuals without having such power.

Th
The e fir
first
st cas
casee on t he po
point
int i s th
thee P. and O. Ste
Steam
am Na
Naviga
viga
vigati
ti
tion
on Co
Co.. v/s Se
Secre
cre
creta
ta
tary
ry
of St
Stat
at
atee fo
forr Ind
India:
ia: The facts of the case were that a servant of the plaintiff (Company)
was travelling from Garden Reach to Calcutta in a carriage driven by a pair of horses.
The accident took place when the coach was passing through the Kidderpore Dockyard
which was Government Dockyard .some government workmen employed in the
Government Dockyard were carrying heavy piece of Iron rod for the purpose of repairing
a steamer. The men carrying a heavy piece of iron rod were going in the middle of the
road. When the carriage of the plaintiff drove up nearer the coaching gave a warning to
the men carrying the iron rod and the coachmen slowed the speed. The men carrying
the iron rod attempted to get out of the way, those in front tried to go the one side of the
road while those behind tried to go the other side of the road. The consequences of this
was a loss of the time, brought the carriage close up to them before they had left the
centre of the road. Seeing the horses and carriage they got alarmed and suddenly
dropped the iron rod and ran away. The iron rod fell with a great noise resulting in
injuries to one horse, which started the plaintiff’s horses which thereupon rushed
forwards violently and fell on the iron rod. The Company filed a suit against the
Secretary of State in Council for the damages fro injury to its horse caused by the
negligence of the servants by the Government of India.

Jud
Judgem
gem
gemen
en
ent:
t: The Supreme Court held that the Secretary of State for India was
liable for the damages caused by the negligence of Government servants, because the
negligent act was not done in the exercise of sovering function. The Court drew a
distinction between acts done in exercise of “Sovereign Power” and acts done in the

3 0
exercise of “Non-Sovereign Power”. That is acts done in the conduct of undertakings
which might be carried on by private person– individuals without having such power.
The liability could only arise in case of “non-sovereign function”. In the present case, the
damage was done to the plaintiff in exercise of the delegated non- sovereign function
hence the government was liable for the torts of its employees. The Secretary of State
was not liable for anything done in the exercise of sovereign powers.

InSt
State
ate of Ra
Rajas
jas
jasth
th
than
an
anv.
v.
v.Vi
Vi
Vidya
dya
dyawat
wat
wati,i,i, the driver of a jeep owned and maintained
bythe State ofRajasthanfor the official use of the Collector of a district, drove it rashly
and negligently while bringing it back from the workshop after repairs and knocked
down a pedestrian and fatally injured him. As a result of the injuries the pedestrian died.
His widow sued the State ofRajasthanfor damages.

The Supreme Court held that the State was liable and awarded damages. The
accident took place while the driver was bringing it back from the workshop to the
Collector's residence. It cannot be said that he was employed on a task which was
based on delegation of sovereign or3governmental
0 powersof the State. His act was not
an act in the exercise of a sovereign function. The Court said that the employment of
driver of a jeep car for the use of a civil servant was an activity which was not
connected in any manner with the sovereign power of the State at all.

However, a different note was struck by the Supreme Court itself in Ka Kast
st
sturi
uri Lal
Vs
Vs.. Sta
State
te of UP , AI
AIRR 19
1965
65 S C 103
1039.
9. In that case, the plaintiff had been arrested by the
police officers on a suspicion of possessing stolen property. On a search of his person,
a large quantity of gold was found and was seized under the provisions of the Code of
Criminal Procedure. Ultimately, he was released, but the gold was not returned, as the
Head Constable in charge of the malkhana (wherein the said gold was stored) had
absconded with the gold. The plaintiff thereupon brought a suit against the State of UP
for the return of the gold (or in the alternative) for damages for the loss caused to him.
It was found by the courts below, that the concerned police officers had failed to take
the requisite care of the gold seized from the plaintiff, as provided by the UP Police
Regulations. The trial court decreed the suit, but the decree was reversed on appeal by
the High Court. When the matter was taken to the Supreme Court, the court found, on an
appreciation of the relevant evidence, that the police officers were negligent in dealing
with the plaintiff’s property and also, that they had also not complied with the provisions
of the UP Police Regulations in that behalf. In spite of the said holding, the Supreme
Court rejected the plaintiff’s claim, on the ground that “the act of negligence was
committed by the police officers while dealing with the property of which they had
seized in exercise of theirstatutory powers.

The power to arrest a person, to search him and to seize property found with him,
are powers conferred on the specified officers by statute andin the last analysis, they

3 0