icsi gcl constitution notes.
CONSTITUTION OF INDIA.
IMPORTANT QUESTION AND ANSWERS:
1Q) “ Article 14 of the constitution of india forbids class legislation , but does not forbid classification.” Explain the rules with respect to permissible classification?
Answer:
Article 14 to the constitution says that the state shall not deny to any person equality before law or equal protection of the laws with in the territory of India.
Equality before law:
Equality before law is a declaration of equality of all persons within the territory of India. i.e the absence of any special privilege in favor of any individual, every person, whatever is his rank or position is subject to the jurisdiction of the ordinary courts.
Equal protection of the laws:
Equal protection of laws directs that equal protection shall be secured to all persons within the territorial jurisdiction of the union in the enjoyment of their rights & privileges without favoritism or discrimination.
Article 14 applies to all persons & not limited to citizens
A corporation, which is a jurstic person is also entitled to the benefit of this articles. (companies also treated as individuals according to article 14)
Legislative classification:
A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of same laws for all.
It is here the doctrine of classification steps in & gives content & significance to the guarantee of equal protection of laws.
To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between the persons who are & who are not similarly situated.
Article 14 does not rule out classification for purpose of legislation nor forbids classification.
The supreme court held is STATE OF BIHAR VS BIHAR STATE held that now it is well & cannot be disputed that article 14 of the constitution guarantees equality before the law & confers equal protection of laws.
It prohibits the state from denying persons or class of persons , equal treatment; provided they are equals & are similarly situated. It however does not forbid classification if otherwise such classification is legal, valid, & reasonable.
Test of valid classification:
Permissible classification must satisfy two conditions namely:
(i) It must be founded on an intelligible differentia which distinguishes persons or things that grouped from other ungrouped.
(ii) The differentia must have a rational nexus with the object sought to be achieved by the statue in question.
The classification may be founded on differential basis, such as geographical or according to objects or occupation or the like
A law is based on an impermissible classification violates the guarantee is void
Intelligible differentia does not mean that classification be scientifically perfect or logically complete.
2Q) What is writ of habeas corpus? When can it be used?
Answer:
The word “habeas corpus” literally means to have a body.
The writ of habeas corpus is a remedy available to a person who is confined without legal justification.
This writ is used to secure release of a person who has been detained unlawfully or without legal justification. The great value of this writ is that it enables an immediate determination of a person’s right to freedom.
This writ is issued to the authority who has the aggrieved person in his custody.
Under article 32 of the constitution the Supreme Court can issue writ of habeas corpus against a person without legal justification.
Likewise the high court under article 226 of the constitution can issue writ of habeas corpus in similar circumstances provided that the person or authority against whom the writ is sought is within the territorial jurisdiction of that high court on the date of filling the writ petition.
3Q ) “A declaration of fundamental rights is meaningless unless there is an effective judicial remedy for their enforcement.
Comment on this statement explaining the judicial remedy which is the constitution of India provides.
Answer:
Writs are extraordinary remedies in cases where there is either no remedy available under the ordinary law or remedy available is in adequate.
Article 32 & 226 of our constitution empower anyone, whose rights are violated, to seek writs, under article 32, the supreme court can be moved for enforcement of fundamental rifhts only.
However under article 226, high court can be moved for enforcement of any right incliding fundamental rights.
Depending upon circumstances the various types of writs can be issued ,like
Ø Writ of certiorari.
Ø Writ of prohibition.
Ø Writ of mandamus etc.
The madras high court held in ADITNAR EDUCATIONAL INSTITUTION VS ASSISTANT DIRECTOR OF INCOME TAX that the relief under article 226 of the constitution of India can be granted inspite of the availability of alternative remedy under the statute only based on undisputed facts. When the high court finds that factual disputes are involved, it would not be desirable to deal, with them in a writ petition. Under article 32, writ is preferred in case there is no other resource available.
4Q) when and under what circumstances can be parliament legislature on matters enumerated in the state list? Discuss?
Answer:
The union has more powers than the state under the following circumstances:
Ø The union list contains 97entries out of which 96 have been specifically named and 97th item has been left blank & is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the unioin list, it effectively means that on any new subject, only parliament can make a law.
Ø Under state list, only state can pass law but article 246 permits the parliament to pass law on state list matters under five circumstances. These circumstances are a matter of:
(A) National intrest.
(B) Emergency.
(C) Dispute between two or more states.
(D)To give effect to an international agreement and
(E) Break down of constitutional machinery in a state.
Thus parliament has more powers under these five circumstances even in the state list.
Ø Under concurrent list, if any law is pass on a particular matter by union as well as state & if there is on inconsistency between two laws then the union law will prevail over the state law.
Ø In India, we have a single citizenship system unlike in the case of USA where there is a concept of dual citizenship.
5Q) “The right of freedom of speech & expression.” Under article 19(1)(a) of the constitution of India is not an absolute right but subject to reasonable restrictions Discuss?
Answer:
Article 19-22 guarantee certain fundamental freedoms:
The six freedoms of citizens (Article 19(1)) guaranteed to the citizens of India are:
(a) Freedom of speech and expressions.
(b) Assemble peacefully & without arms.
(c) Form associations or unions.
(d) Move freely throughout the territory of India.
(e) Reside & settle in any part of the territory of India.
(f) Practice any profession , or to carry on any occupation trade or business.
It may be noted that the aforesaid rights are not absolute & hence reasonable restrictions may be imposed on them.
The phrase reasonable restrictions cannotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature.
In determining the reasonableness of status, the court would see both the nature of the restrictions & procedures prescribed by the statute for enforcing the restrictions on the individual freedom.
The reasonableness of a restriction has to be determined in an objective manner & from the point of view of the interest of the general public & not from the point of view of the persons upon whom the restriction are imposed.
The court is required to ascertain the reasonableness of the restrictions & not of the law which permits the restriction.
Scope and limitations on the freedoms:
Right to freedom of speech & expression Article 19(1)(a):
Freedom of speech & expression is a very important aspect of democracy. The freedom of speech & expression means the right to express one’s convictions & opinions freely by words of mouth, writing, printing, pictures or any other mode.
The right to speech & expression includes:
1) Right to make a good or bad speech &
2) Express the right of not to speak or
3) Express oneself even by sings.
In MEENAKA GANDHI VS UNION OF INDIA, it was decided that the freedom of press & thus imposition of pre-censorship on publication of views, ideas, analysis etc is volatile of freedom of speech & expression.
In the case of BIJOE EMMANUEL VS STATE OF KERALA, it was held that the right to freedom of speech & expression also includes the right to remain silent.
It was decided that a person cannot be compelled to sing a national anthem if he does not want to do so because of some religious objections.
Freedom of speech shall, however not be used as a license to distort & misrepresent orders of court & present an incomplete & one-sided picture tending to scandalize court & subject it to ridicule
Clause (2) of Article 19 specifies the limits up to which the freedom of speech & expression may be restricted. It enables the legislature to impose by law reasonable restrictions on the freedom of speech & expression under the following heads.
Restrictions:
These freedoms are not absolute and are subject to reasonable restrictions. The state has the power to make laws imposing reasonable restrictions on the exercises of the above rights in the interest of the following:
(a) The sovereignty & integrity of India.
(b) The security of the state.
(c) Friendly relationships with foreign states.
(d) Public order.
(e) Decency or morality.
(f) Contempt of court
(g) Defamation.
(h) Incitement to an offence
(i) Prescribing professional & technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.
(j) Carrying by the state or by a corporation owned & controlled by the state of any trade, business, industry, service.
Reasonable restrictions under these heads can be imposed only by a duly enacted law & not by executive action.
6Q) what do you mean by double jeopardy?
Answer:
Jeopardy means punishment.
No person shall be prosecuted & punished for the same offence more than once. It is, however to be noted that the conjunction “and” is used between the word prosecuted & punished & therefore, if a person has been let off after prosecution without being punished, he can be prosecuted again.
7Q) what do you mean by doctrine of waiver of rights under the constitution of India?
Answer:
The doctrine of waiver of rights is based on the premise that a person is his best judge & that he has the liberty to waive the enjoyment of such rights as are conferred on him by the state.
However the person must have the knowledge of his rights & that waiver should be voluntary.
The doctrine was discussed in BAHESHARNATH VS CIT., Where the majority expressed its view against the waiver of fundamental rights. It was held that it was not open to citizens to waive any of the fundamental rights. Any person aggrieved by the consequence of the exercise of any discriminatory power, could be heard to complain against it.
8Q) “constitution of India is basically federal but with certain unitary features. “Discuss”?
Answers:
The constitution generally may be unitary type or federal type. Under unitary type of constitution all powers flow from a single top authority. But under federal system, there are different layers of authority & each layer has separate powers, all decided by the constitution.
Our constitution is basically federal but with certain unitary features. The federal features of our constitution are:
1. Dual authority:
we have two sets of government i.e government at the center & government at various state levels.
2. Distribution of powers: can make laws).
3. Supremacy of constitution:
The three pillars of our legal system i.e., legislature, executive & judiciary all are subordinates to the Constitution of India i.e., none of them can surpass the provisions of Constitution of India.
4. Independence of Judiciary:
The Judiciary of our country is totally independent & neither the legislature not the executive can control the judiciary.
5. Written constitution:
The constitution of India is a written document.
Ø However even our constitution has aforesaid federal features, in times of need, it becomes unitary i.e., union has more powers than the stand under the following circumstances; The union list contains 97entries out of which 96 have been specifically named and 97th item has been left blank & is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the unioin list, it effectively means that on any new subject, only parliament can make a law.
Ø Under state list, only state can pass law but article 246 permits the parliament to pass law on state list matters under five circumstances. These circumstances are a matter of:
(F) National interest.
(G) Emergency.
(H) Dispute between two or more states.
(I) To give effect to an international agreement and
(J) Break down of constitutional machinery in a state.
Thus parliament has more powers under these five circumstances even in the state list.
Ø Under concurrent list, if any law is pass on a particular matter by union as well as state & if there is on inconsistency between two laws then the union law will prevail over the state law.
Ø In India, we have a single citizenship system unlike in the case of USA where there is a concept of dual citizenship.
Professor k.c whereas thus held that the Indian constitution establishes a system of government which is at the most quasi-federal (not strictly federal). Jennings also characterized Indian constitution as a federation with a strong centralized tendency.
9Q) Article 32 of the constitution of India empowers the supreme court to enforce the fundamental rights guaranteed under part iii of the constitution of India. Explain with the help of decided case law how the provisions of Article 32 of constitution of India, have helped in the enforcement of fundamental rights.
Answer:
Article 32 guarantees the enforcement of the enforcement of fundamental rights. Article 32 makes it a fundamental rightthat a person, whose fundamental right is violated, has a right to move the supreme court for the enforcement of his fundamental rights. Thus a person need not first exhaust the other remedies & then go to the supreme court. On the other hand, he can directly raise the matter before the highest court of the land & the supreme court may pass the appropriate orders & writs for the enforcement of the right, the violation of which has been alleged.
‘ubi jus ibi remedium means where there is a right there is a remedy. A right without remedy is useless. The fundamental rights guaranteed by the constitution are protected by adequate remedial measures. The constitution of India provides such remedial measures to all citizen of violation of any fundamental rights. Such remedies are available in the nature of:
1. Habeaus corpus.
2. Mandamus.
3. Prohibition
4. Certiorari and
5. Quo warranto.
Article 32 of the constitution gives such fundamental rights to a citizen to move to supreme court for any violation of fundamental rights .
The madras high court held in ADITNAR EDUCATIONAL INSTITUTION VS ASSISTANT DIRECTOR OF INCOME TAX that the relief under article 226 of the constitution of India can be granted inspite of the availability of alternative remedy under the statute only based on undisputed facts. When the high court finds that factual disputes are involved, it would not be desirable to deal, with them in a writ petition. Under article 32, writ is preferred in case there is no other resource available.
10Q) Discuss the ordinance making powers of the president of India & of the governor of a state as provided in the constitution of India?
Answer:
Ordinance making powers of the president:
Ø Articles 53 lays down that the executive power of the union shall be vested with the president.
Ø The president shall be the head of the executive power of the union. Executive power may be defined as:
The power of carrying on business of government.
(or)
Ø The administration of the affairs of the state “expecting functions which are vested in any authority by the constitution.
Ø The executive power in a modern state have been classified under various heads, which are as follows:
(i) Administration power i.e the execution of the laws & the administration of the department of the government.
(ii) Military power i.e the command of the armed forces & conduct of war.
(iii) Legislative power i.e the summoning prorogation etc of the legislature.
(iv) Judicial power i.e granting of pardons, reprieves etc in persons convicted of crime.
Ø These powers are subjected to the limitations made under the constitution. Normally parliament has legislative powers & it alone can pass laws on union list matters. However our constitution under Article 123 gives special legislative powers to president of India by promulgating ordinance under certain circumstances.
Following are the important provisions regarding ordinance making powers of the president of India.
1. The president gets the power only when the parliament is not functioning. Even if one house of parliament is not functioning, the president can pass an ordinance.
2. The president has powers to pass ordinance on the matters on which the parliament has powers.
3. The councils of ministers should suggest the passing of an ordinance on such matters.
4. The president himself should also be satisfied about the need for the ordinance & he cannot be compelled.
5. Once an ordinance is passed, it should be placed before the both the houses of parliament & approved by them within six weeks of their respective dates of re-assembly.
6. The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if the president himself withdraws the ordinance.
7. The ordinance cannot be challenged except on the limited grounds of mala fide intention in passing the ordinance.
Ordinance making power of the governor:
1. The executive power of the state is vested in the governor.
2. All executive action of the state has to be taken in name of the governor.
3. Normally, there shall be a governor for each state, but same person can be appointed as governor foe two or more states.
4. The governor of the state is not elected but is appointed by the president & holds office at the pleasure of the president.
5. The head of the executive power to a state is governor just as the president for the union.
Powers:
The governor possesses executive, legislative & judiciary powers as the presidents, except that he has no diplomatic or military powers like the president.
Ordinance making powers:
1. This power is exercised under the head of legislative powers.
2. The governor’s power to make ordinances (Article 213) is similar to the ordinance making power of the president & has the force of an act of the state legislature.
3. He can make ordinance only when the state legislature or either of two houses is not in session.
4. He must be satisfied that the existing circumstances render it is necessary to take immediate action.
5. While exercising this power, governor must act with the aid & advice of the council of ministers.
6. The ordinance must be laid before the state legislature & shall automatically cease to have effect at the expiration of six weeks from the date of re-assembly unless disapproved earlier by that legislature.
11Q) Is it correct say that directive principles of state policy have to conform to and run as subsidiary to fundamental rights? Discuss
Answer:
The sub-committee on fundamental rights has suggested the two types of fundamental rights.
1. One which can be enforced in the court of law &
2. Second which because of their different nature cannot be enforced in the courts
Later on however, the former were put under the head ‘fundamental rights’ as part III & later were put separately in part IV of the constitution under the heading directive principles of the state policy.
The articles included in part IV of the constitution (Articles 36 to 51) contain certain directives which are the guidelines for the future government to lead the country.
Articles 37 provides that the provisions contained in this part shall not be enforceable by any court, but the principles there in laid down are nevertheless fundamental in the governance of the country & it shall be the duty of the state to apply these principles in making law.
The directives however, differ from fundamental rights contained in part III of the constitution or the ordinary laws of the land in following respects:
1. The directives are not enforceable in the courts & do not create any justifiable rights in favor of individual.
2. The directives requires to be implemented by legislation & so long as there is no law carrying out the policy laid down in a directive neither the state nor an individual can violate any existing law.
3. The directives per-se does not confer upon or take any legislative power from the appropriate legislature.
4. The courts cannot declare any law as void on the ground that it contravenes any of the directive principles.
5. The courts are not competent to compel the government to carry out any directives or to make any law for that purpose.
6. Though it is the duty of the state to implement the directive, it can do so only subject to the limitations imposed by the different provisions of the constitution upon the exercise of the legislative & executive power by the state.
Important directive principles:
The important directive principles are enumerated below:
a) State to secure a social order for the promotion of welfare of the people.
1.) The state must strive to promote the welfare of people by securing & protecting as efficiency as it may a social order or in which justice, social, economic & political affairs should inform all the institutional of the national life.
2.) The state shall, in particular strive to minimize the inequalities of income & Endeavour to eliminate inequalities in status, facilities & opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations
b) Certain principles of policy to be followed by the state.
The state particularly must direct its policy towards securing the following:
1. The citizens, men & women equally have the right to an adequate means of livelihood.
2. The ownership & control of the material resources of the community are so distributed as best to sub serve the common good.
3. The operation of the economic systems does not result in the concentration of wealth & means of production to common determent.
4. Equal pay for equal work for both men & women.
5. The health & strength of workers & children is not abused & citizens are not forced by economic necessity to enter a vocation unsuited to their age or strength.
6. Childhood & youth are protected against exploitation & against material and moral abandonment (Article 39) .
(bb) The state shall secure that the operation of legal system promotes justice on a basis of equal opportunity & shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen, by reason of economic or other disabilities(Article 39A)
ALL THE VERY BEST
IMPORTANT QUESTION AND ANSWERS:
1Q) “ Article 14 of the constitution of india forbids class legislation , but does not forbid classification.” Explain the rules with respect to permissible classification?
Answer:
Article 14 to the constitution says that the state shall not deny to any person equality before law or equal protection of the laws with in the territory of India.
Equality before law:
Equality before law is a declaration of equality of all persons within the territory of India. i.e the absence of any special privilege in favor of any individual, every person, whatever is his rank or position is subject to the jurisdiction of the ordinary courts.
Equal protection of the laws:
Equal protection of laws directs that equal protection shall be secured to all persons within the territorial jurisdiction of the union in the enjoyment of their rights & privileges without favoritism or discrimination.
Article 14 applies to all persons & not limited to citizens
A corporation, which is a jurstic person is also entitled to the benefit of this articles. (companies also treated as individuals according to article 14)
Legislative classification:
A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of same laws for all.
It is here the doctrine of classification steps in & gives content & significance to the guarantee of equal protection of laws.
To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between the persons who are & who are not similarly situated.
Article 14 does not rule out classification for purpose of legislation nor forbids classification.
The supreme court held is STATE OF BIHAR VS BIHAR STATE held that now it is well & cannot be disputed that article 14 of the constitution guarantees equality before the law & confers equal protection of laws.
It prohibits the state from denying persons or class of persons , equal treatment; provided they are equals & are similarly situated. It however does not forbid classification if otherwise such classification is legal, valid, & reasonable.
Test of valid classification:
Permissible classification must satisfy two conditions namely:
(i) It must be founded on an intelligible differentia which distinguishes persons or things that grouped from other ungrouped.
(ii) The differentia must have a rational nexus with the object sought to be achieved by the statue in question.
The classification may be founded on differential basis, such as geographical or according to objects or occupation or the like
A law is based on an impermissible classification violates the guarantee is void
Intelligible differentia does not mean that classification be scientifically perfect or logically complete.
2Q) What is writ of habeas corpus? When can it be used?
Answer:
The word “habeas corpus” literally means to have a body.
The writ of habeas corpus is a remedy available to a person who is confined without legal justification.
This writ is used to secure release of a person who has been detained unlawfully or without legal justification. The great value of this writ is that it enables an immediate determination of a person’s right to freedom.
This writ is issued to the authority who has the aggrieved person in his custody.
Under article 32 of the constitution the Supreme Court can issue writ of habeas corpus against a person without legal justification.
Likewise the high court under article 226 of the constitution can issue writ of habeas corpus in similar circumstances provided that the person or authority against whom the writ is sought is within the territorial jurisdiction of that high court on the date of filling the writ petition.
3Q ) “A declaration of fundamental rights is meaningless unless there is an effective judicial remedy for their enforcement.
Comment on this statement explaining the judicial remedy which is the constitution of India provides.
Answer:
Writs are extraordinary remedies in cases where there is either no remedy available under the ordinary law or remedy available is in adequate.
Article 32 & 226 of our constitution empower anyone, whose rights are violated, to seek writs, under article 32, the supreme court can be moved for enforcement of fundamental rifhts only.
However under article 226, high court can be moved for enforcement of any right incliding fundamental rights.
Depending upon circumstances the various types of writs can be issued ,like
Ø Writ of certiorari.
Ø Writ of prohibition.
Ø Writ of mandamus etc.
The madras high court held in ADITNAR EDUCATIONAL INSTITUTION VS ASSISTANT DIRECTOR OF INCOME TAX that the relief under article 226 of the constitution of India can be granted inspite of the availability of alternative remedy under the statute only based on undisputed facts. When the high court finds that factual disputes are involved, it would not be desirable to deal, with them in a writ petition. Under article 32, writ is preferred in case there is no other resource available.
4Q) when and under what circumstances can be parliament legislature on matters enumerated in the state list? Discuss?
Answer:
The union has more powers than the state under the following circumstances:
Ø The union list contains 97entries out of which 96 have been specifically named and 97th item has been left blank & is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the unioin list, it effectively means that on any new subject, only parliament can make a law.
Ø Under state list, only state can pass law but article 246 permits the parliament to pass law on state list matters under five circumstances. These circumstances are a matter of:
(A) National intrest.
(B) Emergency.
(C) Dispute between two or more states.
(D)To give effect to an international agreement and
(E) Break down of constitutional machinery in a state.
Thus parliament has more powers under these five circumstances even in the state list.
Ø Under concurrent list, if any law is pass on a particular matter by union as well as state & if there is on inconsistency between two laws then the union law will prevail over the state law.
Ø In India, we have a single citizenship system unlike in the case of USA where there is a concept of dual citizenship.
5Q) “The right of freedom of speech & expression.” Under article 19(1)(a) of the constitution of India is not an absolute right but subject to reasonable restrictions Discuss?
Answer:
Article 19-22 guarantee certain fundamental freedoms:
The six freedoms of citizens (Article 19(1)) guaranteed to the citizens of India are:
(a) Freedom of speech and expressions.
(b) Assemble peacefully & without arms.
(c) Form associations or unions.
(d) Move freely throughout the territory of India.
(e) Reside & settle in any part of the territory of India.
(f) Practice any profession , or to carry on any occupation trade or business.
It may be noted that the aforesaid rights are not absolute & hence reasonable restrictions may be imposed on them.
The phrase reasonable restrictions cannotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature.
In determining the reasonableness of status, the court would see both the nature of the restrictions & procedures prescribed by the statute for enforcing the restrictions on the individual freedom.
The reasonableness of a restriction has to be determined in an objective manner & from the point of view of the interest of the general public & not from the point of view of the persons upon whom the restriction are imposed.
The court is required to ascertain the reasonableness of the restrictions & not of the law which permits the restriction.
Scope and limitations on the freedoms:
Right to freedom of speech & expression Article 19(1)(a):
Freedom of speech & expression is a very important aspect of democracy. The freedom of speech & expression means the right to express one’s convictions & opinions freely by words of mouth, writing, printing, pictures or any other mode.
The right to speech & expression includes:
1) Right to make a good or bad speech &
2) Express the right of not to speak or
3) Express oneself even by sings.
In MEENAKA GANDHI VS UNION OF INDIA, it was decided that the freedom of press & thus imposition of pre-censorship on publication of views, ideas, analysis etc is volatile of freedom of speech & expression.
In the case of BIJOE EMMANUEL VS STATE OF KERALA, it was held that the right to freedom of speech & expression also includes the right to remain silent.
It was decided that a person cannot be compelled to sing a national anthem if he does not want to do so because of some religious objections.
Freedom of speech shall, however not be used as a license to distort & misrepresent orders of court & present an incomplete & one-sided picture tending to scandalize court & subject it to ridicule
Clause (2) of Article 19 specifies the limits up to which the freedom of speech & expression may be restricted. It enables the legislature to impose by law reasonable restrictions on the freedom of speech & expression under the following heads.
Restrictions:
These freedoms are not absolute and are subject to reasonable restrictions. The state has the power to make laws imposing reasonable restrictions on the exercises of the above rights in the interest of the following:
(a) The sovereignty & integrity of India.
(b) The security of the state.
(c) Friendly relationships with foreign states.
(d) Public order.
(e) Decency or morality.
(f) Contempt of court
(g) Defamation.
(h) Incitement to an offence
(i) Prescribing professional & technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.
(j) Carrying by the state or by a corporation owned & controlled by the state of any trade, business, industry, service.
Reasonable restrictions under these heads can be imposed only by a duly enacted law & not by executive action.
6Q) what do you mean by double jeopardy?
Answer:
Jeopardy means punishment.
No person shall be prosecuted & punished for the same offence more than once. It is, however to be noted that the conjunction “and” is used between the word prosecuted & punished & therefore, if a person has been let off after prosecution without being punished, he can be prosecuted again.
7Q) what do you mean by doctrine of waiver of rights under the constitution of India?
Answer:
The doctrine of waiver of rights is based on the premise that a person is his best judge & that he has the liberty to waive the enjoyment of such rights as are conferred on him by the state.
However the person must have the knowledge of his rights & that waiver should be voluntary.
The doctrine was discussed in BAHESHARNATH VS CIT., Where the majority expressed its view against the waiver of fundamental rights. It was held that it was not open to citizens to waive any of the fundamental rights. Any person aggrieved by the consequence of the exercise of any discriminatory power, could be heard to complain against it.
8Q) “constitution of India is basically federal but with certain unitary features. “Discuss”?
Answers:
The constitution generally may be unitary type or federal type. Under unitary type of constitution all powers flow from a single top authority. But under federal system, there are different layers of authority & each layer has separate powers, all decided by the constitution.
Our constitution is basically federal but with certain unitary features. The federal features of our constitution are:
1. Dual authority:
we have two sets of government i.e government at the center & government at various state levels.
2. Distribution of powers: can make laws).
3. Supremacy of constitution:
The three pillars of our legal system i.e., legislature, executive & judiciary all are subordinates to the Constitution of India i.e., none of them can surpass the provisions of Constitution of India.
4. Independence of Judiciary:
The Judiciary of our country is totally independent & neither the legislature not the executive can control the judiciary.
5. Written constitution:
The constitution of India is a written document.
Ø However even our constitution has aforesaid federal features, in times of need, it becomes unitary i.e., union has more powers than the stand under the following circumstances; The union list contains 97entries out of which 96 have been specifically named and 97th item has been left blank & is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the unioin list, it effectively means that on any new subject, only parliament can make a law.
Ø Under state list, only state can pass law but article 246 permits the parliament to pass law on state list matters under five circumstances. These circumstances are a matter of:
(F) National interest.
(G) Emergency.
(H) Dispute between two or more states.
(I) To give effect to an international agreement and
(J) Break down of constitutional machinery in a state.
Thus parliament has more powers under these five circumstances even in the state list.
Ø Under concurrent list, if any law is pass on a particular matter by union as well as state & if there is on inconsistency between two laws then the union law will prevail over the state law.
Ø In India, we have a single citizenship system unlike in the case of USA where there is a concept of dual citizenship.
Professor k.c whereas thus held that the Indian constitution establishes a system of government which is at the most quasi-federal (not strictly federal). Jennings also characterized Indian constitution as a federation with a strong centralized tendency.
9Q) Article 32 of the constitution of India empowers the supreme court to enforce the fundamental rights guaranteed under part iii of the constitution of India. Explain with the help of decided case law how the provisions of Article 32 of constitution of India, have helped in the enforcement of fundamental rights.
Answer:
Article 32 guarantees the enforcement of the enforcement of fundamental rights. Article 32 makes it a fundamental rightthat a person, whose fundamental right is violated, has a right to move the supreme court for the enforcement of his fundamental rights. Thus a person need not first exhaust the other remedies & then go to the supreme court. On the other hand, he can directly raise the matter before the highest court of the land & the supreme court may pass the appropriate orders & writs for the enforcement of the right, the violation of which has been alleged.
‘ubi jus ibi remedium means where there is a right there is a remedy. A right without remedy is useless. The fundamental rights guaranteed by the constitution are protected by adequate remedial measures. The constitution of India provides such remedial measures to all citizen of violation of any fundamental rights. Such remedies are available in the nature of:
1. Habeaus corpus.
2. Mandamus.
3. Prohibition
4. Certiorari and
5. Quo warranto.
Article 32 of the constitution gives such fundamental rights to a citizen to move to supreme court for any violation of fundamental rights .
The madras high court held in ADITNAR EDUCATIONAL INSTITUTION VS ASSISTANT DIRECTOR OF INCOME TAX that the relief under article 226 of the constitution of India can be granted inspite of the availability of alternative remedy under the statute only based on undisputed facts. When the high court finds that factual disputes are involved, it would not be desirable to deal, with them in a writ petition. Under article 32, writ is preferred in case there is no other resource available.
10Q) Discuss the ordinance making powers of the president of India & of the governor of a state as provided in the constitution of India?
Answer:
Ordinance making powers of the president:
Ø Articles 53 lays down that the executive power of the union shall be vested with the president.
Ø The president shall be the head of the executive power of the union. Executive power may be defined as:
The power of carrying on business of government.
(or)
Ø The administration of the affairs of the state “expecting functions which are vested in any authority by the constitution.
Ø The executive power in a modern state have been classified under various heads, which are as follows:
(i) Administration power i.e the execution of the laws & the administration of the department of the government.
(ii) Military power i.e the command of the armed forces & conduct of war.
(iii) Legislative power i.e the summoning prorogation etc of the legislature.
(iv) Judicial power i.e granting of pardons, reprieves etc in persons convicted of crime.
Ø These powers are subjected to the limitations made under the constitution. Normally parliament has legislative powers & it alone can pass laws on union list matters. However our constitution under Article 123 gives special legislative powers to president of India by promulgating ordinance under certain circumstances.
Following are the important provisions regarding ordinance making powers of the president of India.
1. The president gets the power only when the parliament is not functioning. Even if one house of parliament is not functioning, the president can pass an ordinance.
2. The president has powers to pass ordinance on the matters on which the parliament has powers.
3. The councils of ministers should suggest the passing of an ordinance on such matters.
4. The president himself should also be satisfied about the need for the ordinance & he cannot be compelled.
5. Once an ordinance is passed, it should be placed before the both the houses of parliament & approved by them within six weeks of their respective dates of re-assembly.
6. The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if the president himself withdraws the ordinance.
7. The ordinance cannot be challenged except on the limited grounds of mala fide intention in passing the ordinance.
Ordinance making power of the governor:
1. The executive power of the state is vested in the governor.
2. All executive action of the state has to be taken in name of the governor.
3. Normally, there shall be a governor for each state, but same person can be appointed as governor foe two or more states.
4. The governor of the state is not elected but is appointed by the president & holds office at the pleasure of the president.
5. The head of the executive power to a state is governor just as the president for the union.
Powers:
The governor possesses executive, legislative & judiciary powers as the presidents, except that he has no diplomatic or military powers like the president.
Ordinance making powers:
1. This power is exercised under the head of legislative powers.
2. The governor’s power to make ordinances (Article 213) is similar to the ordinance making power of the president & has the force of an act of the state legislature.
3. He can make ordinance only when the state legislature or either of two houses is not in session.
4. He must be satisfied that the existing circumstances render it is necessary to take immediate action.
5. While exercising this power, governor must act with the aid & advice of the council of ministers.
6. The ordinance must be laid before the state legislature & shall automatically cease to have effect at the expiration of six weeks from the date of re-assembly unless disapproved earlier by that legislature.
11Q) Is it correct say that directive principles of state policy have to conform to and run as subsidiary to fundamental rights? Discuss
Answer:
The sub-committee on fundamental rights has suggested the two types of fundamental rights.
1. One which can be enforced in the court of law &
2. Second which because of their different nature cannot be enforced in the courts
Later on however, the former were put under the head ‘fundamental rights’ as part III & later were put separately in part IV of the constitution under the heading directive principles of the state policy.
The articles included in part IV of the constitution (Articles 36 to 51) contain certain directives which are the guidelines for the future government to lead the country.
Articles 37 provides that the provisions contained in this part shall not be enforceable by any court, but the principles there in laid down are nevertheless fundamental in the governance of the country & it shall be the duty of the state to apply these principles in making law.
The directives however, differ from fundamental rights contained in part III of the constitution or the ordinary laws of the land in following respects:
1. The directives are not enforceable in the courts & do not create any justifiable rights in favor of individual.
2. The directives requires to be implemented by legislation & so long as there is no law carrying out the policy laid down in a directive neither the state nor an individual can violate any existing law.
3. The directives per-se does not confer upon or take any legislative power from the appropriate legislature.
4. The courts cannot declare any law as void on the ground that it contravenes any of the directive principles.
5. The courts are not competent to compel the government to carry out any directives or to make any law for that purpose.
6. Though it is the duty of the state to implement the directive, it can do so only subject to the limitations imposed by the different provisions of the constitution upon the exercise of the legislative & executive power by the state.
Important directive principles:
The important directive principles are enumerated below:
a) State to secure a social order for the promotion of welfare of the people.
1.) The state must strive to promote the welfare of people by securing & protecting as efficiency as it may a social order or in which justice, social, economic & political affairs should inform all the institutional of the national life.
2.) The state shall, in particular strive to minimize the inequalities of income & Endeavour to eliminate inequalities in status, facilities & opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations
b) Certain principles of policy to be followed by the state.
The state particularly must direct its policy towards securing the following:
1. The citizens, men & women equally have the right to an adequate means of livelihood.
2. The ownership & control of the material resources of the community are so distributed as best to sub serve the common good.
3. The operation of the economic systems does not result in the concentration of wealth & means of production to common determent.
4. Equal pay for equal work for both men & women.
5. The health & strength of workers & children is not abused & citizens are not forced by economic necessity to enter a vocation unsuited to their age or strength.
6. Childhood & youth are protected against exploitation & against material and moral abandonment (Article 39) .
(bb) The state shall secure that the operation of legal system promotes justice on a basis of equal opportunity & shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen, by reason of economic or other disabilities(Article 39A)
ALL THE VERY BEST