Constitution Law by A.K Jain (Part 1) PDF

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CONSTITUTIONAL LAWOF INDIA[PART-1](CONTAINING - MEANING AND SOURCE OF THE CONSTITUTION; UNION AND ITS TERRITORIES; FEDERALISM; LEGISLATIVE, JUDICIAL AND EXECUTIVE POWERS; EMERGENCY; TRADE AND COMMERCE; AND, AMENDMENT OF CONSTITUTION)byDr. ASHOK K. JAINLL; Ph (Delhi)Forewordby J.JainFormer Judge, Del...

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CONSTITUTIONAL LAW OF INDIA [PART-1] (CONTAINING - MEANING

AND

SOURCE

OF THE

CONSTITUTION; UNION

LEGISLATIVE, JUDICIAL AND EXECUTIVE POWERS; EMERGENCY; TRADE

AND ITS AND

TERRITORIES; FEDERALISM;

COMMERCE;

AND,

OF CONSTITUTION)

by Dr. ASHOK K. JAIN LL.M; Ph.D (Delhi)

Foreword by J.D. Jain Former Judge, Delhi High Court Senior Advocate, Supreme Court

Ascent Publications 21/29, Shakti Nagar, Delhi-110007

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Introduction 1-3 1.1 Constitution and Constitutionalism 1 1.2 Source of the Constitution : The Preamble 2 (i) Utility of Preamble 3 (ii) Amendment of Preamble 3 The Union and its Territories (Arts. 1-4) 4-10 Character of the Union - States Relationship : The Concept of Federalism 11-17 Union and State Powers: Legislative Powers (Arts. 245-254) 18-55 4.1 Territorial Legislative Jurisdiction (Art. 245) 19 4.2 Distribution of Legislative Subjects (Art. 246) 22 (a) Interpretation of legislative lists (i) Plenary power and power to make retrospective and validating Legislation 22 (ii) /Liberal and Harmonious Construction 24 (iii) Ancilliary and Incidental PoWers 29 (iv) Pith and Substance Rule 31 (b) Residuary Powers (Art. 248) 34 (c) Repugnancy between Union and State Laws (Art. 254) 34 4.3 An Analysis of Distribution of Legislative Powers 42 Union and State Powers : Judicial Powers (Arts. 32 and 226) 56-75 5.1 Nature of Judicial Power 56 5.2 Judicial Review of Legislation 56 5.3 Limits of Judicial Review - Scope of Arts. 32 and 226 58 (a) Standing and Public Interest Litigation 59 (b) Judicial Activism 65 Union and State Powers : Executive Powers (Arts. 72-75,77,78, 123,161-164,166,167, 213,256-258-A, 309-311,352-361,365) 76-110 6.1 N ature and Extent of Executive Power 76 (a) Relation between President and Council of Ministers (Arts. 73-79) 77 (b) Position of the Governor (Arts. 162-164, 166, 167) 85

6.2 Legislative Power of the Executive : Ordinance-making powei (Arts. 123, 213) 89 6.3 Judicial Power of the Executive : Pardon etc. (Arts. 72 and 161) 91 6.4 Privileges of President (Art. 161) 93 6.5 Union Executive Power in relation to States : Emergency, President's Rule, etc. (Arts. 256-258-A. 355,356,365) 93 7. Freedom of Trade, Commerce & Intercourse (Aits. 301-307) 111-130 7.1 Art. 301 : Freedom of Trade, Commerce, etc. Ill 7.2 Restrictions on Trade and Commerce 116 7.3 Part XIII of Constitution : Difficulties in interpretation 124 8. Amendment (Art. 368) 131147 8.1 Are Fundamental Rights Amendable ? 8.2 Scope of Amending Power of Parliament (a) Art. 368 as it stands today (b) Doctrine of Basic Features as it stands today (c) Replacement of the Existing Constitution References i

133 140 140 141 143 148

LEST OF CASES A.H. Wadia v CIT ........... .................. 19, 21 A.K. Gopalan v State of Madras..................; ...................... 57, 112 A.K. Roy v Union of India ...........................90 A.K. Sabhapathy v State of Kerala ....38 A. S.................. Krishna v State of Madras 31 Abdul Qader v S.T.O., Hyderabad .............30 Additional District Magistrate, Jabalpur v Shivkant ..................................101 All India Judges Asscn. v U.O.1 ..................66 Amrit Banaspati Co. v UOI .......................118 Andhra Steel Corpn. v C.C.T. ...................119 Andhra Sugars Ltd. v State of AP.. 130 Ashbury v Ellis .............................................21 Associated Tanners v C.T.O......................119 Atiabari Tea Co. case........... 113, 115, 125 Automobile Transport Ltd. v State of Rajasthan ............................. 113, 115, 126 B. Sundaresan v State of Kerala ............. 122 B.A. Jayaram v Union of India .................116 Babulal Parate v State of Bombay... .............5 Raijnath v State of Bihar........................ .’*37 Bandhua Mukti Morcha v Union of India ............... ........................................62 Bangalore Woollen Mills v Corpn. of Bangalore ............................................... 123 Bejoy Lakshmi Cotton Mill’s case ..............86 Bliim v UOI ................................................146 Calcutta Gas Co. v State of West Bengal ...........................................................25 Central Coal Fields v Jaiswal Coal Co .......................................................146 Clyde Engg. Company Ltd. v Cowbum .......................................................39 Croft v Dunphy ............................................21 D.C. Wadhawa v State of Bihar ..................90 Daryao v State of U P. .................................69 Deep Chand v State of U.P. .........................36 Dehradun Quarrying case ...........................65 Delhi J.S.A. v State of Gujarat .................. 146 Dinesh Chandra v Chaudhury Charan Singh ...............................................82 Dr. B.L. Wadhera v UOI .............................66 Dr. Upendra Baxi v State of Uttar Pradesh ...............................................60 Dy. Collector v Ibrahim & Co ...................117 Electronics Corpn., India v C.I.T. ..............21 Express Hotels v State of Gujarat... 114

Fateh Chand v State of Maharashtra .42 Fertiliser Corporation Kamgar (Union) v Union of India ............................. 62 Firm Mehtab Majid v State of Madras ...................................................... 11 9 Francis Corali’s case ................................... 63 G.C. Kanungo v State of Orissa ..35, 43 G.K. Krishnan v State of T.N. 113, 115 Gauri Shankar Gaur v State of U.P. ...35 Ghulam Sarwar v UOI ........ ...................... 70 Golak Nath v State of Punjab ................... 133 Gujarat University v Shri Krishna ............. 26 Hari Krishna Bhargava v UOI ................... 50 Hoechst Pharm Ltd. v State of Bihar.................................................38, 55 I.N. Saxena v State of M.P. .........................44 In Re Berubari Union and Exchange of Enclaves .................................................... 6 In re under Article 143 ................................ 17 In the matter of Cauvery Water Disputes Tribunal .............................. 43,51 India Cement v State of AP.. 119, 129 Indira Gandhi v Raj Narain ..................... 136 International Tourism Corp. v State of Haryana .................................... 53, 114 J.K. Jute Mills v State of U.P. ..................... 23 J.M. Desai v Roshan Kumar ....................... 60 Jalan Trading v Mill Mazdoor Sabha.48 Janan Prosanna Das Gupta v Province of W.B ........................................... 90 Jilubhai Nanbhai v State of Gujarat. 146 Joseph v State of Kerala .............................. 70 Jumma Khan v State of U.P. ...................... .93 K.C.G. Naravan Deo v State of Orissa ....... .................................................. 48 K.M. Nanavati v State of Bihar..45, 92 K.T. Moopil Nair v State of Kerala ..49 Kalyani Stores v State of Orissa ............... 120 Kan nan Devan Hill Produce Co-. Ltd. v State of Kerala ................................ ..42 Kanti Lai v H.C. Patel ................................. 30 Karamjeet Singh v UOI ............................ 6 8 Kartar Singh v State of Punjab....32, 50 Kehar Singh , UOI..................................... 9 2 Keshavanand Bharati v State of Kerela ............................................. ...........134 Khyerbari Tea Co. v State of AM am ................................................ 21, 123, 130

CONSTITUTIONAL LAW - I SUPPLEMENT

2007

[I] Union and its Territories In Ram Kishore Sen v UOI (AIR 1966 SC 644) it was held that the advisory opinion given by the apex court in Re Benibari Union and Exchange of Enclaves (AIR 1960 SC 858) was binding. After receipt of the advisory' opinion in Re Berubari case, the Parliament passed the Constitution (91h) Amendment Act, 1960 to give effect to the Indo-Pak Agreement. The validity of the amendment was challenged alleging that the language of it insofar as it related to Berubari Union No. 12 was confusing and incapable of implementation. It was also contended that the transfer of Berubari Union would result in deprivation of citizenship and property without compensation. In N. Masthan Sahib v Chief Commr., Pondicherry (AIR 1962 SC 797), the Apex Court held that the expression ‘acquired’ [Art. 1 (3)(c)] should be taken to be a reference to ‘acquisition’ as understood in public international law. If there was any public notification, assertion or declaration by which the Government of India had declared or treated a territory as part and parcel of India, the courts would be bound to recognize an ‘acquisition’ as having taken place, with the consequence that the territory would be part of the territory of the Union within Art. 1 (3)(c). A statement by the Government of India that it did not consider a particular area to have been acquired by it is binding on the Court. [II] Federalism State of Haryana v State of Punjab (AIR 2002 SC 685) In this case, the apex court discussed the concept of Federation and the federal character of India. In this case, the State of Hary&na filed a suit for issuance of a mandatory injunction to the State of Punjab and/ or the Union of India to complete construction of the unfinished Sutlej Yamuna Link Canal. It was held that it was indeed for the Central Government to see that the canal is excavated and the recalcitrant State should have been prevailed upon. The court observed'. In a semi-federal system of Government, which has been adopted under the Indian Constitution, all the essential powers, both [S-1]

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legislative and executive have been conferred upon the Central Government. True Federalism means the distribution of powers between a Central Authority and the Constituent Units. Dicey’s concept of federalism is a national Constitution for a body of States, which desire union and do not desire unity. According to him, a federal State is a political contrivance intended to reconcile national unity and powers with the maintenance of the State rights. The essence of a federation is, therefore, existence of a Union and its States and the division of power between the Union and the States. Political integrity of the Union and each State seems to be essentia! to the federal concept. Authors, therefore, described our Government to be one federal in structure but somewhat unitary in spirit. In this case, the Supreme Court also held that the decision of one Government relating to governance of a State or its execution would bind the successor government when it does not involve any political philosophy. The successor Government must complete the unfinished job. Deprecating the “vote bank” politics, it observed: The Constitution conceives of a Government to be manned by the representatives of the people, who get themselves elected in an election. The decision taken at the governmental level should not be so easily nullified by a change of Government and by such other political party assuming power, particularly when such a decision affects some other State and the interest of the nation as a whole. It cannot be disputed that so far as the policy is concerned, a political party assuming powsr is entitled to engraft the political philosophy behind the party, since that must be held to be the will of the people. Kuldip Nayar v Union of India (AIR 2006 SC 3127) Facts and Issue - In this case, the petitioners challenged the Representation of the People (Amendment) Act, 2003 by which the requirement of “domicile” in the State concerned for getting elected to the Rajya Sabha was deleted, which according to them violated the principle of federalism, a basic feature of the Constitution. Observations and Decision - The Supreme Court held that it is no part of federal principle that the representatives of the States must belong to that State. There is no such principle discernible as an essential attribute of federalism, even in the various examples of the Upper Chambers in other countries. Residence is not the essence of the structure of the Upper House; the latter will not collapse if residence as an element is removed. If the Indian Parliament, in its wisdom has chosen not to require a residential qualification, it would definitely not violate the basic feature of federalism. Our Constitution does not cease to be a federal Constitution simply because a Rajya Sabha Member does not “ordinarily reside” in the State from which he is elected. The court observed: The nature of federalism in the Indian Constitution is no longer res integra (matter not yet decided). There can be no quarrel with the proposition that the Indian model is broadly based on a federal form of governance but with a tilt towards the Centre. Under strict federalism, the Lower House (“the people”) and the Upper House (“Union” of the federation) have equal legislative and financial powers. However, in the Indian context, strict federalism was not adopted. The Indian Union has

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been described as the “holding together” of different areas by the Constitution-framers, unlike the “coming together” of constituent units as in the case of the USA and the confederation of Canada. The Constitution does incorporate the concept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of the Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the States under Art. 252, only with the consent of two or more States; the competence of Parliamentto legislate in matters pertaining to the State List, only for a limited period, under Art. 249, “in the national interest”, and, under Art. 258 (1) to entrust a State Government (with the Governor’s consent) functions in relation to which executive power of the Union extends; decentralization of power through 73rd and 74th Amendments; etc. Thus, though the federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism leans in favour of a strong Centre or “unitary power” (viz. Emergency powers, President’s Rule under Art. 356, Art. 249 and 251, All-India Services, Single citizenship, Parliament’s power under Art. 3, etc.). Art. 251 when read with Art. 249, in effect, permit the Rajya Sabha to encroach upon the specified legislative competence of a State Legislature by declaring a matter to be of national importance. Though it may have been incorporated as a safeguard in the original constitutional scheme, this power allows the Union Government to interfere with the functioning of a State Government, which is most often prompted by the existence of opposing party affiliations at the Central and State levels. The court held: India is not a federal State in the traditional sense of the term. In the context of India, the principle of federalism is not territory related. This is evident from the fact that India is not a true federation formed by agreement between various States and territorially it is open to the Central Government under Art. 3 of the Constitution, not only to change the boundaries, but even to extinguish a State. Further, when it comes to exercising powers, they are weighed heavily in favour of the Centre, so much so that various descriptions have been used to describe India such as pseudofederalism or quasi-federation in an amphibian form, ctc. [Ill]

Distribution of Legislative Powers

Autonomy to Centre and States (Legislative Powers' In Javed v State of Haryana [JT 2003 (6) SC 283], the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of Sarpanch or a Panch of a Gram Panchayat, etc. if he had more than two living children, though a similar provision was not found to have been enacted by the Parliament or other State Legislatures. Rejectingthesubmissionthatpeopleaspiringtoparticipatein Panchayati Raj governance in the State of Haryana had been singled out and meted out hostile discrimination, the apex court observed: The Union Parliament and every State Legislature have power to make laws with respect to any of the matters which fall within their field of legislation under Art. 246 read with Seventh Schedule of the Constitution.

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The Constitution gives autonomy to the Centre and the States within their respective fields. Thus, a legislation by one of the States cannot be held to be discriminatory or suffering from the vice of hostile discrimination as against its citizens simply because the Parliament or the Legislatures of other States have not chosen to enact similar laws. The court ruled that it was not permissible to compare a piece of legislation enacted by a State in exercise of its own legislative power with the provisions of another law, though pari materia it may be, but enacted by Parliament or by another State Legislature, within its own power to legislate. In State ofM.P.vG.C. Mandawar (AIR 1954 SC 493), it was held that two laws enacted by two different governments and by two different Legislatures could be read neither in conjunction nor by comparison for the purpose of finding out if they were discriminatory. In Prof Yashpal v State of Chhattisgarh [(2005) 5 SCC 420; AIR 2006 SC 2026], a PIL was filed on account of the deterioration in quality of education because of mushroom growth of self-financed private universities in State of Chhattisgarh. It was averred that after coming into force of the Chhattisgarh Niji Kshetra Vishwavidhyalaya (Sthapana aur Viniyaman) Adhiniyam, 2002, the State Government had by simply issuing notifications established universities in an indiscriminate and mechanical manner without having the slightest regard to the availability of any infrastructure, teaching facility or financial resources. The Supreme Court held: The expression “established or incorporated” in Secs. 2(f), 22 and 23 of the UGC Act, 1956, has to be read conjunctively as “established and incorporated” insofar as private universities are concerned. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with juristic personality of a university so as to take advantage of Sec. 22, UGC Act so that it may confer academic degrees, but without having any infrastructure or teaching facility for higher studies or research is not contemplated by either (State) List II Entry 32 or (Concurrent) List III Entry 25. Hence, Secs. 5 and 6 of the State Adhiniyam were declared wholly ultra vires being a fraud on the Constitution. The court further held: In spite of incorporation of‘universities’ as a legislative head in the State List under Entry 32 thereof, the whole gamut of the university, which include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and research, will not come within the purview of the State Legislature on account of specific entry List I Fntry 66 being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the coun...