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Harinath Janumpally
CONSTITUTION II IMPORTANT QUESTIONS
SHORT ANSWER QUESTIONS
1. ANTI-DEFECTION LAW.
2. DISCUSS THE POWERS & FUNCTIONS OF THE PRESIDENT WITH
SPECIAL REFERENCE TO THE PARDONING & EXECUTIVE POWERS
3. JUDICIAL ACCOUNTABILITY.
4. DOCTRINE OF REPUGNANCY (LEGISLATIVE SUPREMACY OF THE
UNION
OVER THE STATES) WITH DECIDED CASES.
5. DOCTRINE OF COLOURABLE LEGISLATION.
6. DOCTRINE OF PITH & SUBSTANCE.
7. PROMISSORY ESTOPPEL.
8. PUBLIC SERVICE COMMISSION (UPSC), ALL INDIA SERVICES.
LONG ANSWER QUESTIONS
1. POWERS & FUNCTIONS OF THE GOVERNOR
ORDINANCE MAKING POWER OF THE GOVERNOR.
2. POWERS, PRIVILEGES & IMMUNITIES OF LEGISLATIVE
DISCUSS WITH THE DECIDED CASES.
3. JURISDICTION (VARIOUS) OF SUPREME COURT.
WRIT JURISDICTION OF SUPREME COURT.
4. INDEPENDENCE OF JUDICIARY, HOW IT IS MAINTAINED IN INDIA?
- LIABILITY OF STATE IN CONTRACTS (Article 299).
- LIABILITY OF STATE IN TORTS (Article 300).
- BASIC STRUCTURE THEORY, PARLIAMENT'S POWER TO AMEND CONSTITUTION. CASE LAWS
- IMPOSITION OF EMERGENCY, ARTICLES 358, 353.
- ARTICLE 164(4), APPOINTMENT OF A NON-LEGISLATOR AS A MINISTER. ARTICLE 75(5), APPOINTMENT OF A MINISTER WHO IS NOT A MEMBER OF PARLIAMENT.
- Suspension of Civil Servant (Article 311).
- ARTICLE 226, WRIT OF MANDAMUS.
- Parliament’s power to amend Basic Structure (Article 368).
- The ordinance making power and limitations, Articles 213 and 123.
- Article 299 and 300, State Liability.
- Territorial Nexus (Article 245).
- Contempt of Court, Articles 215 and 129.
- Article 253, Legislation for giving effect to international agreements.
Harinath Janumpally
- Article 228, Transfer of certain cases to the High Court.
- Repugnance Article 254, inconsistency between Central and State Laws.
PAPER-III:
CONSTITUTIONAL LAW-II
Unit-I:
Legislature under Indian Constitution - Union and State Legislatures -
Composition, Powers, Functions and Privileges - Anti-Defection Law –
Executive under Indian Constitution - President and Union Council of
Ministers Governor and State Council of Ministers - Powers and position
of President and Governor
Unit-II:
Judiciary under Constitution - Supreme Court - Appointment of Judges,
Powers and Jurisdiction – High Courts - Appointment and Transfer of
Judges – Powers and Jurisdiction - Subordinate Judiciary -
Independence of judiciary – Judicial Accountability
Unit-III:
Centre-State Relations - Legislative, Administrative and Financial
Relations - Cooperation and Coordination between the Centre and
States – Judicial Interpretation of Centre-State Relations - Doctrines
evolved by Judiciary
Unit-IV:
Liability of State in Torts and Contracts - Freedom of Interstate Trade,
Commerce and Inter course - Services under the State - All India
Services - Public Service Commissions
Unit-V:
Emergency – Need of Emergency Powers - Different kinds of
Emergency - National, State and Financial emergency - Impact of
Emergency on Federalism and Fundamental Rights - Amendment of
Indian Constitution and Basic Structure Theory
Suggested Readings:
1. M.P.Jain,Indian Constitutional Law, Wadhwa & Co, Nagpur
2. V.N.Shukla,Constitution of India, Eastern Book Company, Lucknow
3. Granville Austin,Indian Constitution-Cornerstone of a Nation, OUP,
NewDelhi
4. H.M.Seervai,Constitutional Law of India (in 3 Volumes), N.M.Tripati,
Bombay
5. G.C.V.Subba Rao, Indian Constitutional Law, S.Gogia & Co.,
Hyderabad
Harinath Janumpally disqualified under the Tenth Schedule and Article 191(2) is applicable for state Legislative members. Regarding disqualification on ground of defection paragraph 2 of Tenth Schedule of the Constitution provides that- A. If he has voluntarily given up his membership of such political party, B. If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs, C. If a member joins another party, D. A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months. Exceptions: The above disqualification will however not apply: (1). If a member goes out as a result of a merger of his original political party with another political party provided 2/3 of the members of the legislature party have agreed to such merger, or (2). If a member, after being elected as the presiding officer gives up the membership of the party to which he belonged, or does not rejoin that party or becomes a member of another party. The Constitution ( st Amendment) Act, 2003 has added a new clause to Articles 75 and 164 of the Constitution. Clause (1-B) provides that a member of the either House of Parliament belonging to any political party who is disqualified for being member of that House on the ground of defection under paragraph (2) of the Tenth Schedule shall also be disqualified to be appointed as a minister under Clause (1) of Articles 75 and 164 until he is re-elected. Consequently paragraph (3) of the Tenth Schedule under which the exemption from disqualification as provided in case of split of 1/3 members have been omitted. In any question arises as to whether a member of a House has become subject to any of the disqualifications under the Tenth Schedule, the question shall be referred to the Chairman or the Speaker of such House, whose decision shall be final. The decision of the presiding officers shall not be called into question in any court of law.
Harinath Janumpally
- Discuss the powers and functions of the President. Answer: Articles 52 – 78 & 123 deals with President & Vice President. 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. Powers of the President:
- Executive powers (Art 77): A. Power to appoint the Prime Minister and on his advice other Ministers of the Union. B. Power to appoint judges of the Supreme Court and the High Courts. C. Power to appoint Governors of the States (Art 155) & termination of Governors {Art 156(1)}. D. Appointment of Attorney-General. E. Appointment of Comptroller and Auditor-General. F. Appointment of Chairman and Members of the Public Service Commission. G. Appointment of the Members of the Finance Commission and Official Commissions, H. Appointment of Special Officer for Scheduled Castes and Scheduled Tribes. I. Appointment of Commission to report on the administration of Scheduled Areas. J. Appointment of Commission to investigate the conditions of backward classes. K. Appointment of Special Officer for linguistic minorities.
- Military Powers: The president is the Supreme Commander of the Defence Forces of the Country. He has powers to declare war and peace.
- Diplomatic Powers: As the head of the State, the President sends and receives Ambassadors, and other diplomatic representatives. All treaties and international agreements are negotiated and concluded in the name of the
Harinath Janumpally honesty and required to have moral vigor, ethical firmness and impervious to corrupt or venal influences. Levels of Judicial Accountability: There are three levels on which one has to consider judicial accountability –
- Accountability for personal conduct,
- Decisional Accountability,
- The Accountability of the Judiciary as a whole. Need for Judicial Accountability. Judicial Accountability in India. The Judicial Standards and Accountability Bill, 2010.
- DOCTRINE OF REPUGNANCY (LEGISLATIVE SUPREMACY OF THE UNION OVER THE STATES) WITH DECIDED CASES. Answer: Article 254, Article 254(1) of the Constitution provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature such State or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. As per Article 254(2) of the Constitution, where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the state. The question of repugnancy between the Parliamentary legislation and State legislation arises in two ways:
- Where the legislations are enacted with respect to matters allotted in their fields but they overlap and conflict.
- Where the two legislations are with respect to the matters in the concurrent list and there is a conflict. In both the situations, the Parliamentary legislation will predominate, in the first by virtue of a non-obstante clause in Article 246(1) and in the second by reason of Article 254(1). In M.Karunanidhi v. Union of India, the principles to be applied for determining repugnancy between a law made by the Parliament and a law made by the State Legislature were framed. They are:
- Where the provisions of a Central Act and a State Act in the Concurrent List are
Harinath Janumpally fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
- Where however a law passed by the State comes into collision with a law passed by the Parliament on an entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
- Where a law passed by the State Legislature while being substantial with the scope of the entries in the State List entrenches upon any of the entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of Pith and Substance.
- Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2). Conditions for repugnancy:
- That there is a clear and direct inconsistency between the Central Act and the State Act.
- That such an inconsistency is absolutely irreconcilable.
- When the two Acts are into direct collision with each other.
- DOCTRINE OF COLOURABLE LEGISLATION. Answer: The Indian Constitution distributes the legislative powers between the Parliament and the State Legislatures and they are required to act within their respective spheres. Often the question arises as to whether or not the legislature enacting the law has transgressed the limits of its constitutional powers. Then the Courts apply the Doctrine of Colourable Legislation to decide whether the legislation is valid or constitutional. The Doctrine of Colourable Legislation is based upon the maxim “what cannot be done directly cannot be done indirectly”. 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 it's motive. If the legislature has the power to make law, the motive in a making the law is irrelevant. Colourable legislation would emerge when the legislature has no power to legislate on an item either because it is not included in the list assigned to it under the respective entries in the Seventh Schedule of the Constitution or on account of limitation imposed either under Part III of the Constitution relating to the Fundamental Rights or any other power under the Constitution. In K.C. Gajapati Narayan Deo v. State of Orissa the Doctrine of Colourable Legislation has been illustrated for the first time. The transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect. The legislature cannot violate the constitutional prohibitions by employing indirect methods.
Harinath Janumpally Secretary of Govt. made an assurance that in order to establish industries firmly the total tax exemption will be given to the new industrial units for next 3 years based on this assurance, M.P. sugar mill started hydro generation plant taking huge amount of money as loan. Afterwards govt. makes some changes in the tax policy saying that industries will be taxed at a varying rate. Applying the doctrine of promissory estoppels the SC held that appellant took a huge loan relying on the assurance made by govt. so no tax should be imposed for the period of 3 years from the date of production as the promise was made. And there is nothing like to make that promise enforceable one party should suffer harm or damages, in absence of detriment also the promise is binding. Jurisprudence behind the Doctrine The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies, it is discretionary, in contrast to the common law absolute right like the right to damages for breach of contract. It is a principle evolved by equity to avoid injustice and though commonly named ‘promissory estoppel’, it is neither in the realm of contract nor in the realm of estoppel. In India, however, as the rule of estoppel is a rule of evidence, the ingredients of Section 115 of the Indian Evidence Act, 1872, must be satisfied with the application of the doctrine. The doctrine of promissory estoppel does not fall within the scope of Section 115 as the section talks about representations made as to existing facts whereas promissory estoppel deals with future promises. The application of the doctrine would negate the constitutional provision, as under Article 299, which affords exemption from personal liability of the person making the promise or assurance.
- PUBLIC SERVICE COMMISSION (UPSC). Answer: Article 315 of the Constitution of India provides that:
- Subject to the provisions of this article, there shall be a Public Service Commission for Union and a Public Service Commission for each State.
- Two or more States may agree that there shall be one Public Service Commission for that group of States. Appointment and term of office of members: Article 316 of the Constitution of India provides that: A. The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State. B. A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of Sixty five years, and in the case of a State Commission or a Joint Commission, the age of sixty-two years, whichever is earlier. Removal and suspension of a member of a Public Commission: Article 317 of the Constitution of India provides that –
- Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court’s inquiry.
- The President, in the case of the Union Commission or a Joint Commission,
Harinath Janumpally and the Governor in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court.
- The President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be- A. Is adjudged an insolvent, or B. Engages during his term of office in any paid employment outside the duties of his office, or C. Is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.
- Chairman or any other member of a Public Service Commission is interested in any contract or agreement by the State or Central Government. LONG ANSWER QUESTIONS
- POWERS & FUNCTIONS OF THE GOVERNOR. Answer: Articles 153 – 167 & 213 deals with Governor. Powers of the Governor
- Executive Power (Article 154).
- Financial Powers: A. Money bill or other Financial Bill is introduced in the House on the recommendation of the Governor. B. The Governor has the contingency fund of the State at his disposal for emergencies. C. Governor can borrow money on the security of the Consolidated Fund of the State and guarantee the loans of any other local authorities.
- Legislative Powers: The Governor is part and parcel of the Legislature of a State which consists of the Governor and the House or Houses of Legislature as the case may be (Article 168) A. The Governor nominates one-sixth of the total number of the members of the Legislative Council (Upper House) B. The nomination of one Anglo-Indian member to the Assembly. C. Summoning the House D. Addressing the House. E. When the bill is passed by the Assembly, it is presented to the Governor for his assent.
- The Pardoning Power
- Ordinance-making power of the Governor (Article 213).
- POWERS, PRIVILEGES & IMMUNITIES OF LEGISLATIVE DISCUSS WITH
Harinath Janumpally (2).Original Jurisdiction: A. Interstate disputes specified in the Proviso to Art. 131:
- Between the Government of India and one or more States,
- Between the Government of India and any State or States on one side and one or more other States on the other,
- Between two or more States. B. Disputes relating to the election of a President or Vice President (Article 71), C. Transfer of cases (Article 139-A), D. Writ Jurisdiction (Article 32). (3).Appellate Jurisdiction: A. An appeal in Constitutional matters (Art. 132) B. Appeals from the High Court in regard to civil matters (Art. 133), C. Appeals from the High Courts in regard to criminal matters (Art. 134), D. Federal Court (Art. 135), E. Special Leave Petition (Art. 136), F. Statutory appeals. (4). Advisory jurisdiction (Art. 143), (5). Miscellaneous powers and jurisdictions: A. Review the power of the Supreme Court, B. Ancillary powers (Art. 140), C. Enlargement of the jurisdiction (Art. 138), D. Rulemaking power (Art 145). (6). Other powers: A. Law declared by Supreme Court to be binding on all Courts, B. Overruling power of the Supreme Court. C. Interpretation of Constitution and Acts.
- INDEPENDENCE OF JUDICIARY. AND HOW IT IS MAINTAINED IN INDIA? Answer: Independent judiciary is one of the federal features and essential in a democracy. It is also called as Supremacy of law It is one of the basic features of the Constitution of India. Supreme Court of India is the guardian of the Constitution and the fundamental rights. The supremacy of the Constitution can be maintained only through an independent and impartial judiciary. The judiciary has the power of judicial review under the Constitution. The judiciary imposes limits on the power of the Centre and the State also.
Harinath Janumpally The Government has three organs namely, legislature, executive and judiciary. Judiciary is the organ of the government not forming a part of the executive or the legislative. The independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary. Independence of Judiciary in India: The Constitution of India has made several provisions to ensure the independence of Judiciary, they are:
- Separation of Judiciary from the Executive (Article 50),
- Power of contempt of Court ( Articles 129 for SC and 215 for High Courts),
- No discussion in the house (Article 211),
- Fixed tenure,
- Salaries and Allowances,
- Jurisdiction and power of the Supreme Court not to be curtailed,
- Appointment of Judges with the consultation of the Supreme Court and High Courts,
- Prohibition on practise after retirement.
- Removal of Judges of Supreme Court or High Court requires a majority in Parliament and it acts as a deterrent to remove them.
- Keshavananda Bharati v State of Kerala – Basic Structure Theory.
- LIABILITY OF STATE IN CONTRACTS (Article 299) Answer: Both the Union and State Governments have the power to enter into contracts like private individuals, in relation to the respective spheres of their executive power. The contractual power of the Government is subject to some special formalities required by the Constitution, in addition to those laid down by the Law of Contract which governs any contract made in India. Article 298 of the Constitution of India provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose. In Mahabir Auto v. IOC, it has been held that the freedom of the Government to enter into business with anybody it likes is subject to the condition of reason and fair play as well as the public interest. Liability in contracts: Article 299 authorises the Government of India and the Government of State to enter into a contract for any purpose subject to the mode and manner provided by Article 299. Article 299 runs as follows— (1) 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, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the president or the Governor by such persons and in such manner as he may direct or authorize. (2) Neither the President nor the Governor shall be personally liable in respect of any
Harinath Janumpally the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relating to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. (2) If at the commencement of this Constitution— a) Any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings, and b) Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings. Tortious Liability of the State means 'Liability of the State/ Government for the torts committed by its servants. In view of tremendous growth in administrative functions, being discharged by the Government Servants, danger to another's person or property may take place. Then, the question arises is, whether the Government or State is vicariously liable for the torts committed by its servants? (Vicarious liability means 'liability of one person for the tort (wrong) committed by another.) Underlying Principle: The doctrine of vicarious liability is based on the following two maxims:
- Quasi facit per alium facit per se: It means "he who does an act through another does it himself."
- Respondent Superior: It means "let the Superior (Principal) be liable." Position of State/Government Liability after the Constitution of India: Even after the Constitution of India came into force, the courts followed sovereign, the non-sovereign dichotomy in many cases in spite of the Supreme Court’s decision in Vidyavathi’s case. State of Rajasthan v. Vidyavathi (AIR 1962 SC 933), Vidyavathi's husband died of an accident having knocked down by a Collector's jeep on official top. On appeal, the Supreme Court through Sinha C.J. held that the State is liable, without taking into consideration, the Sovereign, Non-Sovereign Dichotomy. Kasturilal v. State of Uttar Pradesh (AIR 1965 SC 1039)- In this case, Kasturilal's gold was seized by the police under the suspicion that it was the stolen property. The gold was kept in the Police Malkhana under the custody of a Head Constable. He misappropriated the gold and fled to Pakistan. In an action by Kasturilal against the State for recovery of the Gold or its equivalent value, the trial
Harinath Janumpally court dismissed the suit. On appeal, the Supreme Court upheld the Trial Court's decision following the rule of the sovereign, non-sovereign dichotomy laid down in P & 0 Steam Navigation Case. The above rule was followed by the Supreme Court in: State of Uttar Pradesh v. Tulasi Ram, (AIR 1971 All. 162)- It is to be noted that, to plead the immunity both the conditions stated above are to be satisfied. If either of the two conditions is absent, the State is liable as in the case of Hindustan Lever Limited v. State of Uttar Pradesh, (AIR 1972 All. 486). Gross negligence by the Servant: The Government/State is vicariously liable for the gross negligence of its servants. Relevant case on this point is Ramakanda Reddy v. State, (1989) — The A.P. High Court held the State liable to pay compensation. In this case, an undertrial prisoner died owing to the negligence of the prison authorities. The Court viewed that the sovereign immunity could no longer be applicable in cases for violation of the right to life and personal liberty guaranteed under Article 21 of the Constitution. In Satyawati Devi v. Union of India (AIR 1967 Delhi 98)- Air Force personnel played the game and returned by a bus. The bus driver drove the bus negligently causing the death of the husband of the Satyawati Devi. The Court held that the State is liable for damages, on the ground that the carrying function is a non-sovereign function. Rudul Shah V. State of Bihar (AIR 1983 SC 1086) An acquitted person was detained in prison for more than 14 years. The Supreme Court directed the State to release him immediately and awarded exemplary damages of Rs.35,000/-. Bhim Singh v. State Jammu & Kashmir (AIR 1986 SC 494) Bhim Singh was awarded Rs.50,000/- as exemplary damages (by the Supreme Court) for unlawful detention. Kalawati v. State of Himachal Pradesh (AIR 1989 HP 5) Two persons died in a Government Hospital owing to the negligence of hospital staff who administered nitrous oxide in place of Oxygen to the patients. The Court awarded compensation under Article 21.
- BASIC STRUCTURE THEORY. PARLIAMENT’S POWER TO AMEND. Answer: ‘Basic Structure’ of the Constitution consists of basic elements or features or essential elements of the constitution which the Indian Parliament cannot amend under any circumstances or under Art. 368. Although it is permissible under the power of amendment to effect changes howsoever important and to adopt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern.
Harinath Janumpally
- The Act authorised the Central Government to take over the Minerva Mills Ltd. The shareholders and the creditors of the Mill challenged the constitutional validity of Article 368 (4) and (5) along with Section 55 of the 42 nd Amendment as it was against the spirit of Article 14, 19(1)(g) and 31(C) of the Constitution of India. The Central Government contended that they were authorised to pass an Act by the 42nd Amendment Act, 1976. The Supreme Court unanimously held that the power of judicial review was one of the features of the basic structure, which cannot be destroyed and struck down the changes incorporated by the amendment, and restored Article 31C of the Constitution.
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CASE LAWS
- IMPOSITION OF EMERGENCY, ARTICLES 358, 353. A. Articles 14, 19, 20, 21 and 22 guaranteed by the Fundamental Rights of Indian Constitution to the citizens of India are suspended by the President of India during the National Emergency. A person wants to challenge in the Supreme Court, advise (Aug 2018). B. During the period of national emergency all the fundamental rights and their operation was suspended by the President. Is such action valid? Decide (Aug 2014), (Sep 2012). C. National Emergency was imposed and all the fundamental rights were suspended by Presidential Declaration. A civil liberties activist approached the High Court for violation of his right to life and personal liberty. Decide. (Aug 2013). D. National Emergency was imposed in India and operation of all the fundamental rights was suspended by Presidential order. Is such order valid? Explain with reasons. (Jul 2012). Issue Can the fundamental rights be suspended during Emergency? Yes Can the right to life and personal liberty be suspended? No Whether the petition filed by the activist is maintainable? Yes Rule Article 359(1) of the Constitution of India: Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of rights conferred by Part III, except Articles 20 and 21 as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. Application The instant problem is related to 'the suspension of fundamental rights during national
Harinath Janumpally emergency'. During the period of emergency, the State is empowered to suspend the fundamental rights guaranteed under Article 19 of the Constitution. It means that the power to suspend the operation of these fundamental rights is vested not only in the Parliament but also in the Union Executive and even in subordinate authority. It means that virtually the whole Chapter on fundamental rights can be suspended during the operation of the emergency. Articles 20 and 21 cannot be suspended in any case. A.D.M Jabalpur v. Shukla, AIR 1976 SC 1207, this is popularly known as Habeas Corpus Case. The respondents challenged the validity of the proclamation of emergency trade under Article 352 on 25th June 1975 and the Order of detention. They were detained under Section 3 of Maintenance of Internal Security Act, 1971 (MISA). They filed a writ of Habeas Corpus. The Supreme Court held that the fundamental right to life under Article 21 couldn't be suspended during the proclamation of emergency. Conclusion In the instant problem, the fundamental rights are suspended during an emergency, but the right to life and personal liberty cannot be suspended. Hence, the petition filed by the activist is maintainable.
- ARTICLE 164(4), APPOINTMENT OF A NON-LEGISLATOR AS A MINISTER. ARTICLE 75(5), APPOINTMENT OF A MINISTER WHO IS NOT A MEMBER OF PARLIAMENT. A. A non-legislator was appointed as a minister in the state cabinet. He could continue as such only for six months, as he could not get elected either as MLA or MLC during such time. After a week, he was again appointed as a minister in the same cabinet even though he was still a non-legislator. The second appointment was challenged as unconstitutional. Decide (Sep 2016), (May 2016), (Aug 2015). Issue: Can the Chief Minister appoint a non-legislator as a Minister? Yes. Whether such appointment is permissible? Yes. Whether such Minister continues beyond 6 months? No. Whether such a Minister can be reappointed after the 6 months term? No. Rule: Article 164(4) of the Constitution of India. A person not being a member of either of the house can be appointed as a minister for six months. Application: The instant problem is related to ‘appointment of a minister who is not a member of either of the house’. Generally, the ministers are appointed from the legislature. However, Article 164(4) of the Constitution of India provides that a person not being a member of either of the houses can be appointed a minister up to a period of six months. If the minister is not elected as a member of either of the house, within the six
