Constitutional LAW By AK 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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of Art. 166 provides that the Governor is authorised to make rules for the more convenient transaction of the business of government of State and for its allocation among ministers Shamsher Singh v State of Punjab (AIR 1974 SC 2192) In this case, the appellants were dismissed from the judicial service by the order of the concerned minister, without any reference to the Governor of the State. The appellants contended that removal is a personal power of the Governor, and cannot be delegated to the concerned Minister or Chief Minister of State. The appellants rely on the decision in Sardari Lai v Union of India (AIR 1971 SC 1547), where it has been held that where the President or Governor, if satisfied, makes an order under Art. 31 l(2)(c) that in the interest of security of State it is not expedient to hold an enquiry for dismissal of an officer, the satisfaction of President or Governor is his personal satisfaction. They contended that power of Governor under Art. 234 (relating to appointment and removal of subordinate judges) is to be exercised by him personally for these reasons : (i) The Governor is by and under the Constitution, required to act in his discretion in several matters. These functions and powers are not executive powers of the State, and here aid and advice of Council of Ministers is not required. (ii) The aid and advice of Council of Ministers under Art. 163 is different from the allocation of business of Government by Governor to Ministers under Article 166(3). In the latter, Governor exercise his executive power by allocating or delegating his functions. In the former, there . is a restriction on Governor's powers in the form of aid and advice. (iii) The powers of appointment and removal of subordinate judges imder Article 234 have not been allocated to the Ministers under the Rules of Business of the State of Punjab. _____________ 2b. Assess the powers of the Governor as the head of the Government of a State

[I.A.S.-94]

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CONSTITUTIONAL LAW (Part-I) The Supreme Court rejected these contentions, overruled Sardari Lc.I's case, and observed as follows : (1) Wherever the Constitution requires the satisfaction of President or Governor, for example, in Article 123, 213 311 (2)(c), 356, 360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government. It is the satisfaction of Council of Ministers on whose aid and advice the President or Governor generally exercises all his powers. (2) In all cases in which the President or Governor exercise his functions with aid and advice of Council of Ministers, he does so by making rules for convenient transaction of the business of Government or by allocation among the Ministers in accordance with Article 77(3) and 166(3). In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed that although the executive power-is vested in President or Governor, it is actually carried on by Ministers. The President or Governor means the President or Governor aided and advised by Ministers. The allocation of business is the decision of President or Governor on the aid and advice of Ministers, and allocation is not delegation. The decision of any Minister or officer under Rules of Business made under Article 77(3) and 166(3), is the decision of President or Governor. (3) It is 'a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. The power of the sovereign (or king) is conditioned by the practical rule that Crown must find advisers to bear responsibility for his action. This rule of English law is incorporated in our Constitution also. Thus, the appointment and removal of persons is an executive action of President or Governor to be exercised on the aid and advice of Ministers. That is why any action by any servant of Union or State is brought against the Union or the State and not against the President or Governor.]

Relation between Governor and Council of Ministers It is same as that between the President and his Ministers, except that the Constitution authorises Governor to exercise powers 'in his discretion'. Article 163 (1) says that there shall be a Council of Ministers with Chief Minister at the head to aid and advise Governor except in cases where Governor can act in his discretion. Article 163(2) says that if any question arises whether any matter .... as regards which Governor is to act in his discretion, the decision of Governor 1 shall be final, and the validity of anything done by Governor shall not be called into question on the ground that he ought or ought not to have acted in his

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discretion. Though, Constitution doesn’t specially mentions discretionary powers, except special responsibility of governor regarding administration of tribal areas in Assam, and when governor also appointed administrator of a Union Territory, there are certain circumstances where the governor will be called upon to exercise his discretion. Thus, the Constitution vests the Governor with discretionary powers This departure from the strict principle of parliamentary system was justified in the Constituent Assembly on the ground that the Governor is confeired with dual capacity. He is not merely the head of the State Government but is also an agent of the Central Government in the State. He is said to serve as the eyes and ears of the Centre and so far to act in his discretion. In order that the Central Government performs its duty imposed by the Constitution (Arts.256, 257, 356, 365), it must have to have its agent in the States, who may act independently, in his discretion, not to be advised by the State Executive, so far as his duty to watch the interests of his masters, extends. The circumstances under which a Governor may exercise his discretion are as follows (i) Appointment of Chief Minister (Article 164)(1) - This is a matter where Governor can exercise his discretion, however, in exercise of their discretion, Governors haven't followed any uniform practice, and it is a matter of great controversy. Unless the all parties agree to follow certain guidelines by way of a convention, the exercise of this function would continue to be a source of political manipulation. (ii) Dismissal of a Ministry (Article 164) (2) lays down that Minister shall hold office during the pleasure of Governor, but this pleasure is exercisable only on Chief Minister's advice. This follows from clause (3) which says that Council of Ministers shall be collectively responsible to Legislative Assembly. This means that so long as a Ministry enjoys the confidence of majority in legislature, Governor can't dismiss it. However, the dismissal of Ministry by Governor, on the assumption that it has lost majority in legislature have aroused great controversy e.g. Ministry dismissed without testing their majority in Assembly. In West Bengal, in 1967, Governor was of the view' that he could dismiss.... 'on the basis of any material or information even extraneous to the proceedings in the Assembly'. This view of Governor w as upheld by Court in Mahabir Prasad v. Profulla Chandra (AIR 1969 Cal. 189), that the power of Governor is absolute. In Kashmir, due to split in ruling party, the National Conference, Mr. Farookh Abdullah's ministry reduced to minority. 12 MLA's claimed they had Joined the 'real' National Conference headed by Mr. Shah: In their signed letter, they urged Governor to form government by inviting Mr. Shah. Governor invited him but at the same time asked Mr. Shah to prove his strength on the floor of

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House. Hext., governor properly verified that Dr Abdullah had lost majority (through letters of MLA's and personally meeting them) and asked new government to prove its strength on the floor of House. Thus, Governor exercised his discretion in a judicious and democratic manner. In Andhra Pradesh, however, Governor acted in haste and undemocratic manner by dismissing the Telgu Desam Ministry headed by NTR Rao, on the strenuous information that he had been reduced to minority due to split in party. Governor relied on list of supporters, who defected from party given by leadc; of detectors, and did not personally verified it. When NTR Rao was willing to prove his majority in Assembly, Governor didn't allowed him to do so. The President has appointed a Committee of Governors to study and formulate norms on the role of Governors, its recommendations are (1) The test of confidence in the Ministry should normally be left to a vote in the Assembly. The Governor should have waited till the Ministiy had been voted out of the office by House itself. , (2) A Governor has right to dismiss a Ministry if Chief Minister shirks his primary responsibility of facing the Assembly within the shortest time to test the confidence of legislature in him. (3) A Chief Minister's refusal to test strength... can well be interpreted as a prima facie proof of his no longer enjoying the confidence in Assembly. (4) If an alternative Ministry can be formed which in Governor's view can command a majority in Assembly, he must dismiss ministry in power and install alternative ministry. If formation of such alternative Ministiy is not possible, then President’s rule is to be imposed. (5) So far as question of majority is concerned, it does not make any difference whether the coalition partner withdraw support or the majority party' government is reduced to minority by defections. The loss of majority by reason of dissolution of coalition should not be equated by Governor with loss of support of a majority in House. This is a question which was only to be decided in House. Even after this Report, which had laid certain norms, the Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner. Governor's office (a vestige of colonial power) has been misused and he had been made hand-maid of Union government [in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156. Art. 156(1) piovides that the Governor holds office during the pleasure of the President. The expression of displeasure of the President is not justiciable]. Not omy uie prestige of office has declined, but politics in States became yet more unstable and unprincipled.

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Improvements - Healthy traditions must be created, with Union government playing a more responsible role. Governors need greater independence vis-a-vis the Centre. He must be an impartial person, capable of holdmg balance betw een national and regional interests. (iii)

Dissolution of Legislative Assembly - Where Ministry has lost majority and no alternative stable Ministry is possible.

(iv)

Advising President under Article 356 for the imposition of President's rule in the State.

LEGISLATIVE POWERS OF THE EXECUTIVE9 (Articles 123, 213) The most important power of President is his ordinance making power (Article 123). It is the power to legislate, when both Houses of Parliament are not in session, thus it is not possible to have a Parliamentary enactment. The Governor possess such power under Article 213 The ambit of this power is co-extensive with legislative powers of Parliament i.e. it may relate to any subject (which Parliament can legislate) and is subject to same constitutional limitations, as the legislation by Parliament. President can withdraw an ordinance at any time. This power is to be exercised by President (and Governor) on the advice of Council of Ministers. The ordinance must be laid before the Parliament when it reassembles and cease to operate at the end of six weeks from the date on.which Parliament reassembles; if both Houses pass resolution disapproving of it before the expiry’ of six weeks, the Ordinance ceases to operate on the day of passing of such resolution. Validity of Ordinance Making Power - The President cannot promulgate an ordinance unless he is satisfied that there are circumstances which render it necessary for him to take immediate action. But, President himself determine whether such a situation has arisen and a court cannot enquire into it i.e. propriety, expediency, necessity, and motive (behind) of legislative Act. While an executive act can be struck down on the ground of non-application of mind or mala fides, an Act or Ordinance cannot. An Ordinance can be invalidated only on the grounds of contravention of constitutional limitations. The validity of ordinance had been challenged at times and the court has upheld its constitutionality in majority of cases. In R.K. Garg v Union of India (AIR 1981 SC 2138), the court held that Special Bearer Bonds Ordinance 1981 was not ultra vires of Art. 123. President is competent to issue an ordinance amending or altering tax laws. Ordinance power is co-extensive with Parliamentary power, and 9 The repromulgation of the Ordinance is an 'abuse of power’ and ‘an aci ui fraud on the Constitution' if the Government ventures to rule by(.repeated Ordinances without taking courage to face the elected representatives* of the people in the House by bringing a Bill displacing the Ordinance. Examine critically the above statement in the light of judicial pronouncements. [L.C.I1-94] Point out the contingencies under which the President may promulgate Ordinances. Discuss the limitations on this power. [I.A.S.-91]

will have nothing to(Part-I) do with the 90 while considering the validity of law the court CONSTITUTIONAL LAW morality of law and an ordinance might well include a situation created by a law, being declared void by a court of law. Article 123 or 213 cannot be said to be undemocratic. An Ordinance stands on the same footing as an Act passed by the Legislature. It cannot be treated as an executive action or an administrative decision. It is clothed with all the attributes of an Act of Legislature, carrying with it all its incidents, immunities and limitations under the Constitution (T Venkata Reddy v State of Andhra Pradesh AIR 1985 SC 724). An ordinance has been held to be a ‘law’ under Art. 21 of the Constitution (A.K. Roy’s case). As the Legislature can repeal an existing enactment or amend it, so also, the President by an ordinance can repeal or amend an existing legislation (Janan Prosanna Das Gupta v Province of W.B. AIR 1949 Call). In A.K. Roy v Union of India (AIR 1982 SC 710) the court held that National Security Ordinance was valid and not violative of Article 14. An ordinance is like a Parliamentary law. However, it held that ordinance would be subject to the test of vagueness, arbitrariness, reasonableness, and public interest and that it was passed only when legislatures were not in session. Abuse - In no country, except India, the Executive is vested with legislative power. In R.C. Cooper v Union of India (AIR 1970 SC 564), the Supreme Cour* held that “under the Constitution, the President being the Constitutional Head, normally acts, in all matters including the promulgation of an Ordinance, on the advice of his Council of Ministers”. Such power may be abused by a minority government to enact a measure for a temporary period as not being sure of support in Parliament; by a majority government in order to avoid debate in Parliament and possible amendment, and advising the President to prorogue Parliament at any time having this specific object in mind (mala fides) (By 44th Amendment, judicial interference in the case of mala fides has been established). The case of D.C. Wadhawa v State of Bihar (AIR 1987 SC 579) furnishes a glaring example of abuse of ordinance power. 256 ordinances promulgated in the State, and all of these kept alive by re-promulgation without being brought before the Legislature, between 1976-81. The court called it a 'subversion of democratic process' and 'colourable exercise of powers' and held that this amounted to a fraud on the Constitution. The Executive cannot usurp the function assigned to the legislature under the Constitution. Parliamentary safeguards - Besides passing resolutions disapproving of ordinance, Parliament gets a chance to review the measure if government seeks to replace an ordinance by a Bill; and when government seek so, a statement explaining circumstances which necessitated immediate action by ordinance must accompany such Bill. However, no debate on above statement is allowed. Peculiarity of Governor's power - In comparison to President's power, the Governor can't make ordinance without 'instructions' from the President if (i) Ordinance contains provisions which would require sanction of the President for introduction in State legislature. (ii) Governor would have deemed it necessary to reserve a Bill containing the same provision for consideration of President.

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(iii) An Act of State legislature containing the same provision would be invalid without assent of President (when Bill reserved for President's consideration^.

JUDICIAL POWERS OF THE EXECUTIVE (.Articles 72, 161) Under Article 72, the President has power to grant pardons, reprieves, respites or remission of punisliment or to suspend, remit or commute the sentence to any person convicted of an offence (i) in cases where the punishment is by Court Martial, (ii) for offences against laws made under Union and Concurrent Lists - matters to which executive power of Union extends, (iii) for death sentences. Art. 72 further lays down that the power conferred on the President, however, does not affect the power conferred by any law on any officer of the Armed Forces to suspend, remit, or commute a sentence passed by Court Martial, and also the power exercisable by the Governor of State under any law to suspend, remit, or commute a death sentence. It may be noted that the British King and the U.S. President also possess such judicial powers. Under Article 161, the Governor has such power only for offences relating to matters to which executive power of State extends; he cannot pardon for (i) and (iii) above. In respect of suspension, remit or to commute death sentence, both President and Governor have concurrent power. The object of conferring this judicial power ("mercy jurisdiction")... is to correct possible judicial errors, for no human system of judicial administration can be perfect. “While exercising his pardoning powers, the President can scrutinise the findings/witnesses on the record and come to a different conclusion both on the guilt of the accused and the sentence imposed on him. In doing so, the President did not amend/modify/supersede the judicial record which remained intact” (Kehar Singh’s case). A Pardon - rescinds both the sentence and conviction, and absolves offender from all punishments. Commutation - from

harder to lighter punishments e.g. from death to rigorous imprisonment. Remission - reduction of amount of sentence without changing its character e.g. from 1 year to 6 months. Respite - awarding a lesser punishment on special grounds e.g. pregnancy. Reprieve - a stay or suspension of execution of death sentence e.g. pending a proceeding for pardon or commutation. The pardoning power can be exercised before, after or dunng the trial. The power is exercised, on the advice of Council of Ministers. The power cannot be exercised when the matter is sub judice in the Supreme Court. Once the appeal is filed in Supreme Court, Governor can't exercise his power of suspension of sentence till judicial process is over as it would be invalid being in conflict with Supreme Court rules (KM. Nanavati v State of Bihar AIR 1961 SCI 12). Also, President should dispose such petition quickly (Sher Singh v State of Punjab AIR 1983 SC 361). In Kuljeet Singh v Lt. Governor of Delhi (AIR 1982 SC 774), the petitioners

two innocent LAW children and they 92 (Ranga and Billa) were found guilty of murdering CONSTITUTIONAL (Part-I) were awarded death sentence. They presented a mercy petition to the President for grant of pardon, which was rejected by President without assigning any reasons. The petitioners contended that powe...