8/01/24

Art 55: Manner of election of President- ‘As far as practicable’ the scale of representation may
not be uniform owing to strength of the houses or death of a member/ disqualification/
resignation or even suspension of the member.
(Even if the member is not present it would not affect the election of President).

(Office of president shall not remain vacant)

*Re Presidential election Case- State assembly was suspended under art. Contention was that
because there is no state assembly the presidential election should be postponed.
Held- we cannot withhold presidential election. Art 55 (‘As far as practicable’).

Art 56: Term of office of president-

1(c) Provides that the president shall hold his office until his successor enters the office
notwithstanding expiration of his term. (The President shall continue his term irrespective of his
completion of his term if the new president is not elected).

Therefore, the conduct of election of President shall not be delayed for suspension of a state
assembly or any other reason.

2- The Vice president shall make communication to the Speaker of the house about resignation.

Art 57: Eligibility for re-election

No bar on re-election of a member as president.

Art 58: Qualification for election of President.

1- Eligibility: Citizen, Age (35 years), Eligible to be a Member of Lok Sabha
2- Office of profit
(58 is to be read with 71(3): Parliament can make law to add to qualification)

*Charanlal Sahu vs. Fakhruddin Ali Ahmad- 58(1) and 71(3) are to be read in harmonious
construction. The parliament had enacted the Presidential and Vice Presidential Election Act,
1952 (by exercising powers under 71(3)). If a person is eligible to contest presidential elections
under art 58 but not under the said legislation of 1952 he shall stand disqualified. (Qualified
under 58 but disqualified under the act, he shall be disqualified, harmonious construction).

Art. 58(1)(c)- Art. 102(1) (Disqualification for membership) Criminalisation can be regulated
under Art. 102(1)(e).

Art 59: Conditions of president's office ( After being sworn in)

09/01/24

Art 60: Oath and affirmation

Under art 60 the president swears in to:
1. To faithfully execute the office. i.e., to discharge functions as president.
2. To preserve, protect and defend the constitution.
3. To work for the service and wellbeing of people of India.

CJI swears him in or senior most judge in case CJI is not available. (Art. 60)

How a vacancy is created for a president?

1. Upon expiration of a term of 5 years. (Art. 56(1)).

2. By impeachment procedure. (Art. 61).
3. Resignation. (Art. 56 Proviso to (1), Proviso (a)).
4. When vacancy is created by his death.
5. Or otherwise, for example, unsoundness of mind or critical medical condition, or
disqualification ground of art. 102.

After a vacancy is created, read Art. 62. Also read Art 62 in light of the Re Presidential election
Case.

Art 62(1) requires presidential elections to be conducted within 5 years of the date of the
president entering into office.

Art 62(2) says if vacancy is created by any means other than expiration of term, then elections
are to be conducted within 6 months from the date of vacancy.

The person so elected shall serve for a fresh 5 year term.

IMPEACHMENT

Art. 61:
Stages
1. A resolution or proposal to be initiated in either house of the Parliament and signed by
1/4th members of the house. (Total 1/4th not 1/4th of present).
2. A 14 days notice is to be served to the president with respect to such resolution.
3. After expiration for 14 days such a resolution is put to vote in the house. (In the house
where the resolution is proposed). It is to be passed by 2/3rd members of this house.
 4. Then it is sent to the other house. The second house will act as a fact finding authority
and the president is allowed to represent his case to the second house. (Art 61(3)).
5. The result of the investigation confirming violation of the constitution is to be approved
by 2/3rd members of this second house also.
6. If the resolution is passed the president is automatically removed from office or
impeached from the date such resolution is passed by the second house.

● It is a quasi judicial proceeding.

● Unlike elections where nominated members do not participate, the nominate
members participate in the impeachment procedure.
● Elected member of the state legislative assembly do not participate.

Ground of impeachment
‘Violation of constitution’ (Art 61(1)).

The Vice President

The Office of Vice President is created by art 63. He is given 2 powers by virtue of Art. 64:
1. Ex officio chairman of Rajya Sabha.
2. He has to act as a president in case a vacancy is created (Art 65(1)) by death, resignation,
removal or otherwise.
3. He has to act as president of president is unable to discharge his functions due to absence
or illness (Art 65 (2)).
While acting as a president, the vice president will not discharge the function of chairperson of
Rajya Sabha.

Elections of Vice President

The Electoral College only consists of the members of both the houses of Parliament (Art 66(1)).

Eligibility
Provided under Art 66(3):
1. Citizen of India.
2. Completed 35 years of age.
3. He should be qualified to become a member of council of states, Rajya Sabha, because
once appointed he becomes chairperson of Rajya Sabha.

10/02/24

Article 72: Powers of President

Art 72 is an authority that tells that the president can perform the judicial functions which is not
conforming to the doctrine of strict separation of power.

It is a prerogative power (exclusive power because of a special position) of the president to be

exercised independent of the council of ministers.

*State Government NCT of Delhi vs. Prem Raj

Meaning of Pardon- to completely absolve from the guilt (conviction or punishment are totally
negated). It is not an exercise of appellate powers.

Reprieve: It is a stay of execution of sentence (temporarily postponing of the sentence).

Respite: Due to special circumstances the sentence is reduced

Remit: You continue with the conviction but you lower down the punishment but you will not be
declared non-guilty.

Commute: It means substitution of one form of punishment with lesser punishment. (Changing
death penalty to life improvement, for example).

Art 72(1): offense- an act or omission which is prohibited, or which was required to do, and is
backed by a sanction.

Art 72(1)(a): When can he do so

Art 72(1)(b) is to be read with 73(1)(a).

A person convicted under the following can reach the president under Art 72(1)
1. After proceedings of a court martial (72(1)(a)). (Write provisions in answers also)
2. Where power of union executive is exercised (Art 72(1)(b) read with 73(1)(a). i.e. in all
the laws made by parliament).
3. In cases of the death penalty.

Judicial review of exercise of power by the president under Art 72.

*Maru Ram vs. Union of India

There is scope of partial judicial review in exercise of judicial powers by the president and the
governor.

1. It is presumed that the president acted properly and carefully.

 2. Court will not seek an explanation for the rejection of a mercy petition by the president.
(Courts are usually given power to seek explanation in case of use of discretionary power
but not here). But the court may admit judicial review in the following cases:
a. To determine the scope of the president's power. (Whether the president even had
power to decide the case or not).
b. If there has been an inordinate delay in disposing the mercy petition the supreme
court can involve Art 32 and even substitute the sentence with life imprisonment.
(This is the case of Judicial overreach). (Court cannot direct president to grant/not
grant) *Shamsher Singh vs State of Punjab
c. When an earlier mercy petition has been dismissed and a fresh mercy petition is
ascribed with the motive to delay execution then SC will not entertain and may
proceed with execution.
d. Judicial review may be allowed in cases where the pardon is obtained by fraud or
granted by mistake or improper reasons.

12/01/24

*Kehar Singh vs. Union of India, 1989, SC

Murder case of Indira Gandhi, led to communal riots, death of lakh people. Person was awarded
the death penalty confirmed by SC. His son went to the President invoking art 72 (mercy
petition). He requested:
1. Lessen the death penalty to some other punishment or absolve (pardon or commute)
2. An oral hearing. (To present his case personally to the president).
President rejected the oral hearing stating that it is not a usual practice. He again files a petition
to reconsider the oral hearing. Denied without any reason. Final disposition of the mercy petition
was still pending. All happened in November 1988. He was to be executed in December. He
approached the Supreme court under writ jurisdiction. President has not decided on the mercy
petition yet and he wanted SC to direct the president to decide the petition.

● Why should SC allow the writ petition as it has already given order to execute?
○ Art 21 would be violated and hence writ was maintained.
● Can the court issue guidelines to the president? What is the scope of Art 72?
○ Exercise of power under Art 72 can be Judicially Reviewed (CJ Pathak).
○ “We are of the view that it is open to the President in the exercise of the power
vested in him by Art. 72 of the Constitution to scrutinise the evidence on the
record of the criminal case and come to a different conclusion from that recorded
by the court in regard to the guilt of, and sentence imposed on, the accused. In
doing so, the President does not amend or modify or supersede the judicial record.
The judicial record remains intact, and undisturbed. The president acts in a
wholly different plane from that in which the Court acted. He acts under a
constitutional power, the nature of which is entirely different from the judicial
 power and cannot be regarded as an extension of it. And this is so,
notwithstanding that the practical effect of the Presidential act is to remove the
stigma of guilt from the accused or to remit the sentence imposed on him”
○ In addition it is a prerogative power which cannot be restricted by guidelines.
○ (Execution was stopped until the president decides on the mercy petition).

*Kuljeet Singh vs. LG of Delhi

Very famous murder case of 2 children. (Geeta Chopra murder case). Kuljeet Singh was a
badmash (Also his friend). They planned to kidnap 2 children and kill them if things go south.
They killed the children. They were given death sentences. They went upto President for a mercy
petition. He rejected it. They went to SC that the president didn't not act reasonably and his
powers should be re examined. Writ petition was accepted on the ground that it is not known that
there are reasonable stands formulated to exercise power under art 72. It was decided by CJ
Chandrachud.

Conclusion: it is a prerogative power which is an exclusive and special power under the
constitution. There can be a limited Judicial Review (JR) but there cannot be restrictions over
exercise of such power. “It is presumed that the president acted properly and carefully.”

*Ipuru Sudhakar vs. Gov. of Andhra Pradesh, 2006

A’s father was murdered by X. And thereby arrested and went to jail. Upon being released on
bail he murders B’s father. He was out on trial convicted. IPC provides for enhanced punishment
in these types of cases. When the petition went to the governor he remites the punishment to 7
years imprisonment. These were political murders. And therefore the case was filed by A and B
that such remission should be reviewed.

SC states that we are limited while exercising the power of JR. There has to be a rule of law.

16/01/24

Veto Powers
Veto: Exclusive power that can be used w/o any explanation.

The Indian President only has a pocket veto. He can only keep the legislature w/o signature. He
may not decide to return it or approve the bill.

Upon receiving the bill passed by both the houses president have following options:
1. To give his assent.
2. To withhold his assent. (Called Pocket Veto).
 3. He returns the bill to the house for reconsideration. Upon such return if the bill is passed
by the parliament (with or w/o changes) then the president is bound to give his assent.
(Art. 111).
President needs to sign the bill as a part of the parliament.

Ordinance making power (Art. 123) when either house is not in session

Military Powers (Art 53)

He is supreme commander of arms forces of the union. He appoints all the officers. He
personally appoints chiefs of forces.

Waging of war: He declares a war against any country and peace is concluded in his name.

Diplomatic powers: All the ambassadors and international bureaucrats representing India are his
representatives.

All the treaties and agreements with other nations are negotiated and concluded in his name.
Then sent to parliament for ratification. This is an example of dualist theory.

Cedaw is an example. *Vishakha vs State of Rajasthan: India was signatory to Cedaw. But there
was no law. In light of a gap in legislation SC took charge to make guidelines. Example of
Judicial Activism and Overreach. (Doing someone else's work is Overreach).

Financial Role:
Money bills can be introduced in the parliament only with the prior recommendation of the
president. This is the reason why he cannot return the money bill. (Art 109 and 110).

The union budget or annual financial statement is presented to the parliament with his
consideration. (Art. 112).

Contingent funds of India are at the disposal of the president of India. He can make expenditures
thereof. (Art 267).

He also causes presentation of audits in the parliament. (CAG is appointed by the President, he
does the audit, presents it to president and he puts it in the parliament). (Art 151).

He constitutes the finance commission to recommend distribution of funds to state and center.
(Art 280).

The President can seek advice on legal matters from the SC. (Art. 143). This is called the
advisory jurisdiction of SC.
Examples:
*In re (this means it is a referenced case and there is only one party, advisory jurisdiction,
conclusion is reportable, it has precedential value, not binding on president) Berubari

EMERGENCY POWERS
Three types of emergency
1. National (Art 352): President holds power to exert (national) State of emergency upon
recommendation of council of ministers and PM in whole or any part of country.
2. State (Failure of constitutional machinery) (Art 356): Upon the recommendation of the
governor of state he can declare (state emergency) Failure of constitutional machinery in
a state.
3. Financial(): He is authorised to declare a financial emergency where he has the right to
intervene and check public expenditure.

Working or functioning of the President (Art. 361): Protection of President/Governor

Privileges of President
● Art 361(2): No criminal proceedings can be initiated or continued against the president of
India or governor during the course of their office. President is immune from any arrest.
● Civil Proceedings (361(4)): Only restricted civil proceedings can be initiated not all. You
can initiate civil proceedings:
○ Where the cause of action has emerged before he enters his office and in his
personal capacity.
■ A two months notice is to be provided stating the nature of proceeding,
cause of action, details of the litigant/s and relief sought.
○ Art. 61: Impeachment of President: if either house passes a resolution for
impeachment, in those cases investigation can be initiated against the president.

Ordinance, Ordinance making power of the President under Art.

123 and power of the Governor under 213.
Art. 123: Legislative power of the president during recess of parliament.
(1) Under necessary circumstances and when parliament is not in session.
(2) Ordinance has the same effect but it has to be laid before Parliament.

Historical development of Ordinances

● The Indian Councils Act, 1861 empowered the governor general of India to issue
directions having force of law. However ordinary laws were to be made in consultation
with the councils. This power was subject to two conditions:
 ○ Could only be exercised in emergency situations.
○ Would remain in force for six months only.
● Similar provisions were found in the Government of India Act, 1915 and 1935.

Government of India Act, 1935

● Power was vested with the governor general.
● Can be exercised only when the federal legislature is not in session.
● Special circumstances existed that awaiting reassembly of the legislature was not
possible.
● The ordinance had the same effect of law.

Life of such ordinance

● Such ordinance was required to be laid before the federal legislature which can:
○ Approve and would become the Act of federal legislature.
○ Rejects and would be discarded.
● If the ordinance is not placed before the federal legislature it will cease to operate upon
expiration of six weeks from the date of reassembly of legislature.
● If the federal legislature is not in session the life of such ordinance is six months
extendable upto further six months. (This has been removed in the Constitution of India)

● Constituent assembly committee on main principles of constitution headed by Sir V.N.

Rau. Few suggestions included that ordinance was an exceptional power and to be
exercised with aid and advice if council of ministers.
● K.T. Shah said it would negate rule of law and therefore extraordinary character should
be retained.
● Another member added that ordinance should not act as a tool of violating fundamental
rights and hence placement of ordinances in Art. 13(4) was made.
● Ordinances are subject to judicial review. Dr. Ambedkar rejected automatic expiry of
ordinance for the Indian Parliament is required to meet at intervals not exceeding six
months.
● Therefore the present provisions under Art. 123 and Art. 213 are finalized. Such power is
to be exercised with following conditions:
○ When the legislature is not in session.
○ Immediate action is required.
● In addition the following constitution restrictions are applicable:
○ Shall not violate fundamental rights.
 ○ Shall respect distribution of legislative powers. (Centre/state relationship is
maintained by President/governor powers).

Can an ordinance amend act of the legislature?

*R.K. Garg vs. UOI, 1981

The legislative powers of parliament are equal to ordinance making power of the president. One
is general rule another is exceptional rule and therefore ordinance can amend an act of
parliament.

19/01/24

*Krishna Kumar Singh vs. State of Bihar, 2017, SC

Following issues were discussed:
1. Whether it is mandatory to lay an ordinance before the concerned legislature?
○ It is a constitutional requirement to lay an ordinance before the legislature. It is a
form of legislative control over executive power. It is a use of the doctrine of
checks and balances. The court relief on *Quarry Owners Association vs State of
Bihar and held that it is mandatory. Justice Lokur had a different opinion that
even if not tabled before the legislature such ordinance will expire within six
weeks of reassembly of legislature. Therefore laying the ordinance is not
mandatory.
2. Whether re-promulgation of ordinance is valid?
○ Re-promulgation means that despite the intervening session of the legislature a
fresh exercise of the power to promulgate the ordinance is being made which was
in conformity with the previous ordinance. The case of *DC Wadhwa vs. State of
Bihar was relied on, where ordinances passed over a period of more than 10 years
were challenged. The court observed that re-promulgation was a fraud on the
constitution. It is a colorable exercise of power. The incessant passing of
ordinance may lead to ordinance raj and bypass the democratically elected
legislature.
3. What is the effect and meaning of the term ‘cease to operate’?
○ The terminology is referred under various provisions of constitution are:
i. Void:
● When the power is exercised against the constitution, with the
virtue of Art 13 it is void.
 ● If it violates Art 245 r/w Schedule 7 list it could be void.
● If it does not respect aid and advice of the council of ministers.
● 01/01/24- Ordinance came into existence
● 15/01/24- It was pronounced void.
● For 15 days that it existed before it was declared void, any exercise
of power made under void ordinance, it would be negated. As if it
never existed.
● Exceptional case was created in I.C. Golaknath.
ii. Cease to operate:
● If tabled and rejected.
● It is not tabled and would cease to operate after 6 weeks of
reassembly of the legislature.
● It would no more be an effective law but the rights created during
the time it was valid will be respected. But due to a technical
difficulty it will not operate any further or will stop.
iii. Cease to exist
iv. Repealed
v. Invalid etc.
4. What is the effect of the rights created by such ordinance?
○ Such re-promulgation is void. And rights created under a void law are no good
either.
○ The case of *SR Bommai vs. Union of India lays down a test of public interest and
constitutional necessity which was relied on in this case to discuss reversible
nature of the rights. Benefit would not be taken back because it is in public
interest.
5. What is meant by ‘Satisfaction of President/Governor’ and whether it is open for Judicial
Review?
○ Passing reference was made to 38th Constitutional Amendment which negated the
power of Judicial Review for President while exercising the power of ordinance.
○ The 38th CA was overturned by 44th CA and the power of ordinance is now
subject to:
i. Aid and advice of council of ministers
ii. Judicial Review
Powers and office of Council of ministers
Art 74:
● President is now bound by advice of the council of ministers.
● The 42nd amendment is called a mini constitution.
● It inserted two majors components:
○ Sovereign
○ Secular
● Janta Dal introduced 44th amendment to assuage the effects of 42nd amendment passed
by Congress.
● The 44th amendment introduced a proviso.
● The President can send the advice for reconsideration.
● If it is sent back again then the president is bound.

Art 74:
● Art 74 and Art 75 are crux of the parliamentary form in India.
● To aid and advise the president in the original clause.
● In 1950 the president was not bound by the advice of the council of ministers.
● *Ram Jawaya Kapoor vs. State of Punjab, 1955
○ We have adopted a parliamentary form of government and the real power is
exercised by council of ministers.
● *UNR Rao vs. Indira Gandhi, 1971
○ SC had stated that it is mandatory (formally bound) for the president to exercise
his power upon the aid and advice of the council of ministers.
● 42nd amendment
○ Word ‘shall’ was introduced.
● 44th amendment
○ The president may send such advice for reconsideration of the council of
ministers.
● Now the president is bound by such reconsideration.
● Discretionary power under Art 103:
(1) If any question arises as to whether a member of either House of Parliament has
become subject to any of the disqualifications mentioned in clause (1) of article 102, the
question shall be referred for the decision of the President and his decision shall be final.

MEANING OF COUNCIL OF MINISTERS

India adopted a parliamentary form of government inspired by the British system. Art 74
portrays that there are two executive heads nominal, that is the president who is blind by the aid
and advice of the real executive heads (PM and his council) who are the members of the
parliament (Art 75(5)). India has a council of ministers who are members of the parliament and
nominated upon the advice of the PM. The total number of council of ministers shall not exceed
15% of strength (Total number of members) of lok sabha. The council of ministers consists of 3
category of ministers:
1. The Cabinet Ministers who are responsible for ministers and portfolios. They make
interim government policies.
2. Minister of state: They are given additional responsibilities including departments and
are even requested to assist cabinet ministers. They may be asked or invited to attend
cabinet meetings.
3. Deputy ministers: who assist cabinet ministers and they do not attend cabinet meetings.

POWERS AND FUNCTIONS OF COUNCIL

1. Formulation of laws.
2. Determination and implementation of policies.
3. Financial responsibility.

1. The minister may be personally and morally responsible for a policy.

*Common Cause v UOI (1999) – the meaning of collective responsibility.
2. Ensuring Coordination
In a parliamentary form of govt, the political executives bridge the gap between the executives
and the legislature. E.g., the consultations and discussions, the committee reports for determining
legislations.
3. Power to aid and advise the President: the CoM under article 74(1) aids and advises the
president:
i. For appointment to various constitutional positions
ii. On foreign relations
iii. Power related to emergency
a. To declare national emergency
b. To declare financial emergency
c. Failure of constitutional machinery in a state

*U.N.R. Rao v Indira Gandhi

A writ of quo warranto was filed against the then Prime Minister Indira Gandhi stating that the
Lok Sabha had been dissolved by the President under Article 85(2) and therefore, the PM and
other ministers shall cease to hold office because Article 75(3) says that the council of ministers
shall be collectively responsible to the house of people. A five-judge bench decided.
● The parliamentary conventions in the UK are more or less incorporated in the
Constitution of India. Only if the Constitution is silent, we shall refer to the parliamentary
convention in UK.
● Article 52 states there shall be a president. Article 74(1) states that there shall be PM and
CoM to aid and advise the President.
Art 52: There shall be a president. Art 74(1) states that there shall be PM and council of
ministers to aid and advice the president. Both these provisions are mandatory, i.e., such office
cannot remain vacant. The term shall should not be read as may.

75(3) will only apply when Lok Sabha is functional and not when it is dissolved.

The government or executive is separate from lok sabha.

*Har Sharan Verma vs. Tribhuvan Narayan Singh, 1971, SC

such appointment was considered valid owing to Art 164(4) which is in similar lines to Art
75(5).

Another case was filed by the same petitioner, *Har Sharan Verma vs. State of UP with respect
to KP Tiwari’s appointment in UP govt. A separate line of argument was followed. Check Art
173(a). Qualification of members of state legislature. Argument in the second case was that SC
overlooked Art 173(a) in the previous case. It was further argued that to consent elections for
state legislature one has to file a form. If the person has not filed that form he is unable to
become minister in state legislature. The court held that such requirement is for becoming a
member of legislature not a minister. Therefore the appointment of Tiwari was confirmed.

*Har Sharan Verma vs UOI, 1987, SC

W.r.t. the appointment of Sitaram Kesari as a minister in the central government. His
appointment was also confirmed.

Reading Art 75 and 75, PM is also a minister but the head of the council of ministers.

Union Government State Government

1.

2. Art 74(1) the proviso Art 163(2)

3. 74(2): Barring judicial Review 163(3)

29/01/24

Executive Legislature Judiciary

Centre 1. Nominal- President 1. Electoral College +

2. Real- PM + COM Indirect election
2. PM- Leader of
Majority party in
Lok Sabha

State 1. Nominal- Governor

2. Real- CM + COM

OFFICE OF GOVERNOR
He is the nominal head of state. The office is derived from the office of governor during British
India.

Appointment Of Governor (History)

Methods deliberated:
● Direct elections (Rejected)
● They asked for elections in the state legislative assembly. But till now the governor had
to keep the state legislative assembly in check so it was not possible to work against the
authority that elected you. (Rejected).
● A panel may be appointed by the state legislative assembly; that panel may nominate or
elect a governor. Bias in panel. (Rejected).
● The original format of central nomination was adopted, the one in the Government of
India Act, 1935. Governor holds the office during the pleasure of the central executive.

CONSTITUTIONAL PROVISIONS
Art 153 - 167 deals with governors and other state executives (CM + COM).

Art 155 read with Art 156 and 157 talks about appointment and office of governor.
● Appointed by the President upon the aid and advice of the council of ministers.
● Holds office for 5 years or during the pleasure of the president.
● Qualification:
○ Citizen of India
○ 35 years of age
○ Art 158: Should not hold office of profit and should not be a member of
parliament or state assemblies.
● Customary convention: (poorly enforced, attracts no punishment)
 ○ The governor should not belong to that state.
○ The president should consult the chief minister of that state for appointing the
governor.

*S.R. Bommai vs UOI

Facts emerged in 1985. State legislative assembly of Karnataka, Janta Dal 1. Similarly in UP in
1990 after communal riots regarding Ram Janmabhoomi, BJP. And on similar lines other states
MP, Rajasthan and Himachal Pradesh. Non conforming party in state legislature. Central
government asked governors to send the report for the failure of constitutional machinery. State
legislative assemblies of these states were dismissed.

*B.P. Singhal vs UOI, 2010

Lok sabha elections were conducted in 2004. The president upon aid and advice of the newly
elected PM and COM removed governors of Gujarat, Goa, Haryana and UP. Such removal was
questioned in the court of law.

The court held that even constitutional power cannot be exercised arbitrarily and that removal of
the governor was made on the basis of unlawful reasons. Court held that the president had
compelling and valid reasons for such removal (because he is bound by aid and advice). But the
centre government (PM + COM) will have to justify such aid and advice.

Wrt governor the Sarkaria commission,1988 suggested a compulsory term of 5 years for
governor however he may be removed on rare or compelling circumstances. There shall be a
procedure to remove the governor.

Venkata Chaliah Commission, 2002

Suggested for 5 year complete term but appointment with consultation of chief minister.

Punchhi Commission, 2010

Delete pleasure doctrine, removal may be considered by the state legislature.
All these suggestions were rejected.

Powers of the governor

Executive powers
● Art 154: The executive power of the state shall vest with the governor.
● He may exercise his power by himself or an officer subordinate to him.
● His executive powers extend to state list or concurrent list.
 ● All executive orders are made under the name of the governor.
● He ascends to the bills, official gazette.
● Appoints the chief minister and COM (with advice of CM).
● He is the chancellor of state universities.

Judicial Powers
● He appoints and transfers district court judges (Art 233).
● The governor is entitled to be consulted for appointment of judges of the HC (Art 217).
● He administers the oath of judges of HC.

Pardoning Power (Art 161)

● The governor cannot grant pardons for the death penalty.
● He has no jurisdiction in cases of military courts.
● He has to act in Aid and Advice of CM + COM.

Legislative Powers
● He is an integral part of the state legislature.
● He summons, dissolves and prorogues the state assemblies.
● He gives assent to the bills:
○ When a bill is presented to the governor:
■ He may give his assent
■ He may withhold his assent
■ He may return the bill (not money bill) for reconsideration. But if such a
bill is passed again by the assembly the governor is bound to give his
assent.
■ He can reserve a bill for consideration of a president (Art 201):
● Necessarily if the bill is endangering power of a high court.
● If the bill is ultra vires to the constitution the governor may reserve
a bill for reconsideration from the president.
● Against the larger interest of the country or national importance
(may).
● Authorized to promulgate ordinance on state subjects.
● He lays the reports of finance commission, CAG, etc to the house.

Financial Powers
● Money bills are placed only on the recommendation of the governor.
● He places the budget and annual financial statement to the house.
● He places a demand for grants which are granted by the central government.
● He constitutes the finance commission.
*Shamsher Singh vs. State of Punjab, 1974, SC

Two judges of the subordinate judiciary of the state of Punjab were terminated while serving
their probation period. One judge was terminated w/o giving reasons and another was terminated
with
recommendation of the High Court.

Issue was whether the judge of the subordinate judiciary be removed by the governor upon his
discretion?

Concerned provisions: Art 164(1) is to be read with Art 234 and 163(1). Part 1 is wrt
discretionary powers.

Rule 7(2) of civil service rules requires governors to dismiss services upon the recommendation
of High court w/o reasons. References was made to article 311 with provides for termination of
services of civil servants or people employed with state or union government.

*K.H. Phadnis vs. State of Maharashtra, 1971, SC

It was held that even for termination of a probationary officer Art 311 shall be applicable.
Meaning thereby that even for termination under the concerned rules (Rule 9 of Punjab Civil
Services Rules and Rule 7(3) of Punjab Civil Services Rules 1951) need to respect the
constitutional requirement of Art 311. For probationary officer the services may be terminated on
specific fault or on unsatisfactory record implying unsuitability. Therefore the removal of both
the judges was held to be unconstitutional.

● 1974:
○ President and Governor are bound by aid and advice of PM+COM/ CM+COM
● 42nd Amendment (1976):
○ P/G bound by aid and advice
● 44th Amendment (1978):
○ Can send back for reconsideration
● General Rule:
○ He is bound by aid and advice
● Exception:
○ He has discretion in some cases. Such cases are explicitly provided in the
constitution.

Discretionary powers of President or Governor

● Power to appoint the PM or CM.
● Art 75(1) provides for two sets of powers:
a. To appoint the PM that is a discretionary power.
b. To appoint other ministers to be exercised upon advice of the PM.
● In 1989 president Venkata Ramana invited Rajeev Gandhi, the leader of the largest
minority party, to form the government. He failed to attain majority. Thereafter the post
election coalition of Janta Dal and National Front formed a government and made V.P.
Singh PM. A group of leaders headed by Chandrashekhar defected Janta Dal and formed
a separate National Party, which was supported by INC. Chandrashekhar was made the
new PM with the support of INC.
● In 1996, president Shankar Dayal Sharma invited the single largest minority party leader
Atal Bihari Vajpayee. Within 13 days he failed to prove his majority in the house.
Thereafter Janta Dal led United Front formed the government with H.D. Devegoda as a
PM and outside legislative support INC. (In house joining hands: some ministers will be
from your party some from my. Outside legislative support: we will support any act you
bring, floor test etc. but won't share ministries). INC later on withdrew support and
replaced Devegoda with I.K. Gujral. Rajeev Gandhi's assassination followed. This
coalition also collapsed.
● Then president K.R. Narayanan explored the option of any further coalition. Then he
ordered a fresh election.
● In the 2004 elections, the president invited Sonia Gandhi, the leader of the largest
minority party and the post election coalition United Progressive Alliance formed the
government. She stepped down and nominated Dr. Manmohan Singh to be the PM.
● The Sarkaria Commission on Centre-State Relationship recommended the following wrt
discretionary powers of the governor which may apply to the president as well:
a. There is no discretionary power in case of a clear election mandate. (Where there
is a clear majority).
b. The discretion lies in the hung assembly with an unclear election mandate. In such
situations the governor should proceed in the following order:
i. Pre-election coalition
ii. Single largest party
iii. Post election coalition joining hands to form a government
iv. Post election coalition but outside the legislative support
c. There is no written law for this.
● The President have the discretionary power to dissolve a hung assembly and order for a
fresh elections.

● In areas where parliamentary laws are not applicable and parliament can make laws for
good governance (V and VI Schedule), governor can make special regulations for these
areas. He is not bound by any authority
● Art 356: Failure of constitutional machinery: CM + COM are constitutional machinery.
Hence the governor does not need to work on aid and advice of CM + COM because it
 will go against their own interest. The discretionary power of the governor is an
exception while act and advice of the council of ministers is general rule.
● The discretionary power is limited only to the condition where the constitution expressly
provides #
● The exercise of either discretionary power or upon the advice of COM is not immune
from Judicial Review. ##

*M.P. Special Police Establishment vs. State of M.P., 2004, SC

The MP State Lokayukta put out a report suggesting prosecution of 2 ministers for the act of
corruption and criminal conspiracy. The governor granted such a sanction. However the COM
rejected such sanction stating that such allegations were prima facie false. Matter went to the SC
whether the governor can act on his discretion or even contrary to the advice of COM if it
involves prosecution of ministers.#

It was a 5 judges bench which discussed the powers of the governor to be exercised upon aid and
advice and on its own discretion. Reference was made to Shamsher Singh vs. State of Punjab,
1974. The arguments of Mr. Tankha alleging that it is the mere apprehension of bias but no
actual bias proved was rejected. The court relied that the governor did not act arbitrarily as he
relied on the report of the lokayukta and that the COM should act fairly. The discretionary
powers in such cases can be exercised to protect the spirit of the constitution.

Art 74(2):
*S.R. Bommai vs. Union of India
Judicial review of aid and advice of COM.
Art 74(2) aims to protect and preserve the secrecy of discussion of COM and the President.
However it cannot supersede the concept of Judicial Review to prove that the exercise of power
is based on reasonable grounds. If COM renders an advice to the president he is bound but
whether the COM advised reasonably is a matter of JR (Judicial Review). Therefore the scope of
JR is to see on what material such advice is concluded. Therefore Art 74(2) cannot be abused for
unconstitutional means.

Parliament
Art 79: Parliament consists of Lok Sabha, Rajya Sabha and President. Bicameral structure has
emerged from the UK, whereby one house, the lower house represents democracy and the upper
house represents the Monarch. A bill has to be passed collectively by both the houses and
requires the ascent of the president to become an act.
Art 80: Talks about strength of Rajya Sabha which says, RS shall be composed of not more than
250 members. At present strength is 245 out of which 238 are representative of state and union
territories and 12 members are nominated by the president.

A method of proportional representation (parties gain seats in proportion to the number of votes
cast for them)

For representation of union territories, only 3 have representation: Delhi, Punducherry and J&K.

Schedule 4 of the Constitution talks about allocation of seats. The voting in State legislative
assembly takes place in an open ballot system provided under Representation of People’s Act.

*Kuldeep Nair vs. UOI, 2006, SC

The representation of people’s act, 2003 amendment bringing about 2 significant changes was
challenged:
1. Open ballot system
2. Domicile requirements
SC stated that there is difference b/w direct and indirect election. The members of Rajya Sabha
represents regional interest and then the regions are free to nominate their representative. They
may or may not be domiciled. And that open ballot system is not against democracy as it is
necessary to bring cross voting or monetary consideration into light. Right to Vote is a statutory
right (in context of members of State legislature).

*Anoop Baranwal vs. UOI, 2023 (ECI Case)

Right to vote is a Constitutional Right under Art 326. (For voting for LS).

Transperancy was promoted in indirect election (RS election) and open ballot system was
approved.

There is no option of NOTA. Open ballot system will not affect or attract disqualification unde
anti defection law however disciplinary action can be taken within the party hierarchy. A
member can vote even before taking an oath as a legislator.

Art 81: Composition of Lok Sabha

There are total 530 members which are elected from territories of state, 20 members elected from
Union Territories and before 104th Constitutional Amendment, 2 members were nominated by
President to represent Anglo-Indian Community.
First census takes place then readjustment (provided in Art 82). Legislation is by delimitation act
thereby delimitation commission is formulated which suggests for parliamentary constituency
based on number of population.

The 84th Amedment Act extended the number of seats allocated to each state. Each state is
allocated a number of seats in LS in such a manner that the ratio between the population is same
for all the states. It does not apply to states where population is less than 6 million.

Each state is further divided into territorial constituencies so that ratio number of population in
each constituency and number of seats allocated is the same.

There is also reservation for SCs and STs. 84 seats are reserved for SCs and 47 for STs based on
their population in each state.

Art 83: Duration of the house

● Rajya Sabha: It is a permanent body and RPA (Representation People Act) determines
the term of office of a member is six years and one third member retires every second
year.
● Lok Sabha: Normal life is 5 years but the president has powers to dissolve it even before.
It can be extended during the period of national emergency. The extension cannot be
beyond the period of 6 months after the emergency seizes to operate. The parliament is
conducted in 3 session:
○ Budget
○ Monsoon
○ Winter
Session means the period between the first sitting and its prorogation. During each
session the house meets everyday.
○ The prorogation of a house and its reassembly is called recess (time period b/w 2
session).
○ Everyday functioning is called sitting.
○ Adjournment refers to suspension of the work (suspension of sitting) for a
specified time. Adjournment sine die means terminating the sitting for an infinite
period. The Speaker or chairperson has the power to call adjournment.
○ Prorogation is called by the President and it terminates the session.
○ Dissolution happens after 5 years or by exercise of power by the President (Art
85(2)). Extended in case of national emergency. Effect of dissolution is very
unique. A bill pending in either of the house lapses. These are for the bills
proposed in LS. But for the bills proposed for RS, a bill pending in RS but not put
to LS, it will not lapse. A bill pending in RS not passed by LS does not lapse.
Deception means change in political affiliation after election.

Art 102(i)(a):

Parliament (Prevention of disqualification act), 1959

*Jaya Bachchan vs. Union of India, 2005

She was a member of Rajya Sabha and appointed as a chairperson of Uttar Pradesh Film
Development Council and was given rank of cabinet minister with:
● Honorarium of 5000/month
● Additional allowance of 600 per day
● 10,000/month for entertainment expenditure
● Chauffeur driven car, telephone
● 2 class 4 employees
● Free accommodation etc.

After such an appointment the president exercised his power under art. 103 disqualified her to be
a member of RS. Case went to the SC.

Contentions from Jaya Bachchan:

● It is a decorative post. She did not receive any actual remuneration. She did not seek any
perks. Even if she had traveled for the purposes of work she never availed the facility
mentioned.

But the court stated that the office of profit is not defined under the constitution. It is a subject of
interpretation. It means an office which is capable of yielding a profit or monetary benefit.

It further explains, it does not include payments in the form of reimbursement for actual
expenditure. It is irrespective of the pecuniarly gain actually received or not.

The case was referred *Divya Prakash vs. Kultar Chand Rana, 1975, SC. A person was
appointed as chairman of board of school education of the state of Himachal Pradesh with no
remuneration

The holder of the office of profit will be disqualified even if no benefit, pecunary or otherwise
are availed.

*Consumer Education and Research Society vs. Union of India, 2009

The parliament enacted Parliament Prevention of Disqualification Amendment Act, 2006.
12/02/24
2004 elections, 2006 amendments in Prevention of Disqualification Act, 2006, it increased the
scope of office of profit and had retrospective effect. The Act was amended retrospectively:

● Contention from petitioner: Retrospective enactment under Art 102 is not within the
power of parliament. Power under Art 102(1)(e) read with 102(1)(a).
● There is a constitutional convention that any matter of disqualification is decided by a
joint committee and recommendations of that committee are taken up further. If there is a
wholesale exemption then it is beyond the exercise of power by parliament and is
colorable legislation.
● When is disqualification final: the person is disqualified from the date when he occupies
the office of profit. Though a decision may come later.

*Kanta Kathuria vs. Manak Chand Surana, 1969, SC

The power of the State legislative assembly whether they can enact retrospective legislation. The
state legislature can enact a law regarding office of profit retrospectively.
The court had discussed pointers of disqualification:
● First disqualification is regarded by the high court, that is, 101(3)(a) where a contestant is
disqualified. A person holds his office until declared by the high court. A corollary has
been drawn for 102(1)(a), the decision of the president is final. Until decided by the
President, the person is qualified. The retrospective application of amendment in the
present case is allowed.

Who shall decide what is office of profit? 55 offices were declared as not the office of profit.

32nd AB, 1973- Emergency

46th AB, 1978- Dissolve
The bill finally became act by 52nd AA, 1985- X Schedule (8 Paras of anti defection laws)
91st AA, 2003

Definition of defection

Definition of political party: Political party has been defined under section 2(f) of Representation
of People Act. It means an association or body of individual citizens registered as a political
party with the election commission.

A person is said to be disqualified on ground of defection under para 2:

1. If he voluntarily gives up his membership of the political party.
 2. If that person does not vote on party lines so within 15 days the request for
disqualification maybe initiated.

TILL MID TERM

05/03/24

*Subhash Desai Principal Secretary vs. Governor of MH

In 2019 elections of MH, major Pol Party were (Shiv Sena, INC, others), BJP. In brackets
formed coalition, SSLP. CM was Udhhav Thackrey, Sunil Prabhu was Whip. Party was divided
into 2 parts: (CM+Whip) and (Party leader, Eknath Shinde and 34 other MLAs). CM called for
a dinner. Eknath Shinde with 34 MLA did not show up. Whip said if you do not show up you
will be considered defected (whip on 22/06/22). They did not show up. Eknath Shinde filed a
petition to remove the Whip (on 26/06/2022). Sunil Prabhu filed another petition to remove Party
Leader (Eknath Shinde) and disqualify other MLAs with him. Party leader filed petition that
speaker did not enjoy majority.

When it is contended to remove speaker can he at this time decide disqualification of others?

The opposition leader approaches the governor that the CM does not command support of
majority. He asked for a floor test. Eknath Shinde was supported by BJP meanwhile. Thackrey
was supported by INC. Governor order for a floor test on 28/06/22 to happen on 30/06/22. On
20/06/22 Whip went to HC to stay the floor test and consider the disqualification petition first
(the one to disqualify Eknath Shinde and 34 MLAs). HC said to continue with the floor test.

Udhhav Thackrey resigned himself. Ideally this is a question of disqualification. Chopra’s

argument is that Eknath Shinde and 34 MLAs are original Shiv Sena and Thackrey and others
have split. (Chopra:1 Saubhagya: 0)

Next CM, Eknath Shinde sworn in with support of BJP and was given 7 days’ time to prove
majority. Present speaker was asked to be removed. For these elections the earlier Whip, Sunil
Prabhu issued 2 directions:
 1. To vote against Eknath Shinde in floor test.

2. All the members of Shiva Sena should vote for X who is the contestant for speaker.

The floor test happened. Y won (BJP and Eknath Shinde supported) won. Sunil Prabhu said 34
MLAs (+5 others) should be disqualified as they did not vote on party lines. Case is regarding
powers of whip and powers of speaker. Matter went to SC.

Nabam Rebina was referred. Until disqualified members have powers to take part in Legislative
proceedings.

Read Para 28, 29, 30 of the judgement. 36 talks about issues. 217 about reasoning.

(Read this blog and its parts for better understanding)

· Courts usually do not have jurisdiction but can only intervene as Judicial Review iin
matters of disqualification.

o When CM went to HC to stay the floor test, HC said they can only check the
decision of speaker (only Judical Review) and courts do not have power of
Original Jurosdiction.

· The legislature party does not appoint the whip and party leader. They are appointed
by political party. (Legislature Party is the one whose members are part of
legislature, whereas all other members of Pol Party).
 Political Party

Legislative Party

· Petition to disqualification can be simultaneously made to ECI and speaker.

· Effect of Split on Political Party

o Earlier para 10 of schedule 10 acknowledged split as a defense against rule of
the disqualification

o Now it is no more a good defense. Changes by amendment.

o Now it becomes duty of speaker again to see which party remains original and
which party is split. (Both political and Legislative party)

o Whether power to order a floor test is discretionary or not (for Governor)? -

SR Bommai. He has power but it cannot be exercised arbitrarily. Governor
here was justified because he has reasons to believe that government has lost
majority.

Unit III Ends

Judiciary

Supreme Court

High Court
 District/ Session

Lowest court is Taluka or Civil courts also known as Tehsil court.

· It is considered organ of state.

· Established for Justice and dispute resolution.

· Preamble says Justice: Social, economic, political.

· We need to ensure that rights of people are safeguarded. And institutes of government are
not violating FR of people and checks and balances.

· First step is creation of FR and basic framework and then we’ll create judiciary to protect
them.

· If state violates FR one has to approach Judiciary.

· Same for if Govt violate checks and balances.

1. India follows an adversarial system as opposed to inquisitorial system. 2 parties will

contest and allege facts and try to prove same to the court. Court will pass the judgement
accordingly.

2. Inquisitorial System: Judge actively participates in the inquiry and based on findings
they decide. Police has this power of investigation and decision making. India has minor
touch of inquisitorial system when courts take cases Suo moto. There were also provision for
certain commission for certain class of people (minor rape).
 3. India follows Common Law System:

o Precedents

o Less written law

o Natural Justice (no one will be judge on his own cause)

o Audi Alterum Partem

4. Hence, we follow adversarial common law system.

· Supreme Court: Part V, Chapter IV, Article 124-147 and 32

· High Court: Part VI, Chapter V, Article 214-

· Subordinate Judiciary: Part VI, Chapter VI, Article 233-237

· SC and HC are called constitutional court because they are established by Constitution.

Supreme Court: Part V, Chapter IV

Article 124: Establishment of SC

(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges.

· Parliament can increase the number of judges by law and not by Amendments.

· Appointment now is done by a complex system of

 (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme Court and of
the High Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years:

[Provided that][1]—

(a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a
Judge may be removed from his office in the manner provided in clause (4).

[(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in
such manner as Parliament may by law provide.]

Appointment of CJ

· Constitution is silent.

· There was a constitutional convention that the senior most judge will be
appointed as CJ.

· Two times, first in 1973 AN Ray was appointed as CJ subsiding 3 senior

judges of SC. The govt was verry strong, it leads to weak judiciary. Second
was appointment of Justice Beg in same year. He bypassed Justice Khanna.
He had separate opinion in ADM Jabalpur case.

· *SP Gupta vs. UOI (1stJudge’s case) [Overruled]

It emerged as a petition filed by an advocate against a circular of law ministry that

said

o 1/3rd judges of HC will be appointed outside the state

o The HC judges may be transferred w/o their consent.

o Can an ad hoc judge claim permanent position?

SC decided this case

· Consultation u/a 124 does not mean concurrence.

· HC judges can be transferred even w/o their will.

 · Transfer and appointment is a public quality and may not be
disclosed until it affects public interest.

This case was overruled by *Supreme Court Advocates-on-Record Association

and another Vs Union of India. It was decided by a 9-judge bench (7:2). [Start of
collegium system]

· Appointment of judges is consultative participatory process focused on

consensus.

· 7 judges said there should be participation of 2 senior most judges. It

was start of collegium system. Discord was about number of judges in
the group

· There shall be a collective opinion based on consensus of every

member of the group. (President, CJ and 2 seniors most judges of SC)

· For ad hoc appointment: Ad hoc vacancies are created as a temporary

measure which cannot be a back door entry.

11/03/24

*In Re Presidential Case, 1999

· A 9 Judge bench was constituted to give its opinion. Also known as

judges transferred III case, 1999 SC. The 9 judges have increased the
collegium from 2 to 4 senior most judges of SC. The sole opinion of
CJI is not binding. Rather the opinion of the collegium is binding. This
is called plurality of judges.

· The strength of collegium was increased from 3 as held in SC Bar

association case and now has been increased to 5 (CJI + 4 Senior most
Judges of SC), so that even if 2 judges do not agree for a person to be
appointed, he shall not be appointed. Within the collegium all the
members should agree.

· Opinion of the collegium should be in writing, addressed to the

president and is a recommendation by the Chief Justice of India (only
in name).

· To sum up the three judges’ cases:

 o 1st Judge case (SP Gupta) held that opinion of executive
(President) is binding, this was good till 1993.

o 2nd case (SC on Record) which introduced collegium system and

concurrence of CJ.

o 3rd Judges case (In Re Presidential case), the strength of

collegium was increased from 3 to 5 and consultation was held
binding. If the collegium has recommended a name COM with
President cannot reject it.

· Judges by highest court were appointed PM and COM in UK under name of Monarch.

· In USA the judges are appointed by president and approved by senate. India while
drafting the Constitution had both these models at hand. No JR of Legislative Power in UK
because parliament is supreme. So, judges need not be as independent as required in India.

· The power of JR was first recognized in US in case of Margery vs Madison. The model in
USA was discarded in India on account of independence of Judiciary. Features were taken
from UK and USA and something else.

· From UK the appointment was to be made by President. From USA the approval by
senate was replaced with approval by CJI. However, Dr. Ambedkar wanted the appointments
made to be confirmed by 2/3rd by vote by parliament to make it a democratic process.

· Both the models of UK and US was rejected and proposal of Ambedkar was rejected.

· It reflects the doctrine of checks and balances. There is not absolute power for
appointment of judges initially. Now Judiciary has absolute power.

· However there has been attempt to change the process of appointment of judges. SM
Seervai states that collegium is not being reasonable and is just an ad hoc arrangement.

· There were la commission reports specially 121st report of 1987 which recommended that
there shall be a separate commission. However, who shall form a part of this commission
was not recommended. Commissions are noting but opinion of ministers (maybe). They
wanted to support the take of executive.

· Then came 99th Amendment Act also called as NJAC Amendment. This act inserted 3
provisions of the constitution, 124A, 1244B, 124C. The SC declared these amendments as
unconstitutional in the case of *SC Advocates on Record Association. vs. UOI (4th Judges
case) decided by 5 Judges Bench.

· Overall Amendment call be divided into 5 parts:

 1. Introducing an authority for appointment of judges, provided under article
124A. (It has CJI, 2 senior-most judges of SC, law minister and eminent
persons out of which one should be person belonging to SC/ST/OBC or
women. These 2 members will be nominated by another committee consisting
PM, leader of opposition and CJI. Now the first question would be that it
would breach independence of Judiciary.

2. The procedure adopted by NJAC to consider the name of a person. The

second part of NJAC amendment talks about procedures to be followed and
NJAC Act.

§ Substantive Ultra Vires: A law which denies freedom of expression that

is substantive ultra vires.

§ Procedural Ultra Vires: A person not given opportunity to be heard in a

case, TADA, Preventive detention.

§ These are further extension of Article 21. Difference by Procedural Law

and Substantive Law. ICA is Substantive law. Article 21 has been
bifurcated into 2 ideas of Substantive and Procedural Ultra Vires.

§ First issued in NJAC Case is Substantial Ultra Vires and second issue is
Procedural Ultra Vires.

Procedural part was included in 124B and 124C where the parliament was given
the power to regulate the procedure. NJAC act was also challenged. Court decided
this case by 4:1. Chanmeshwar gave his dissenting opinion.

Majority Opinion

Involvement of Executives, i.e., law minister in NJAC, and when the 2 members
were to be recommended there was a separate commission there was involvement
of PM and Leader of Opposition concerns the primacy and supremacy of
judiciary, independence of this organ and violative of Spirit of Article 50. If an
external person takes a call, in appointment the judiciary could have bias towards
such appointment. Therefore, first part of violates independence of judiciary,
separation power read along Article 50. The collegium system was revived by
majority opinion.

12/03/24
 124A: Composition of NJAC (CJI + 2 Supreme Court Judges + Law Minister + 2
Eminent Persons)

2 Eminent Persons would be recruited by PM, leader of opposition and CJI.

124B: Procedures

124C: Parliament can make act (NJAC Act, 2014)

A preliminary objection was raised that Justice Kehar was member of Collegium
himself and if he will be deciding this matter would have a bias. So, this argument
was rejected saying that every judge of SC has a probability of being a member of
collegium.

Argument relied on by Majority

1. Judicial Primacy: Derived from 2nd and 3rd Judges Case, i.e., the
opinion of judges is important. That is how consultation has become
concurrence in 2nd and 3rd Judges Case. Hence it was giving way to
Judicial Independence. It was also said that Judicial Primacy and
Judicial Independence are part of basic structure. They said that
NJAC was making way for the executive to interfere (Law minister,
PM and Leader of Opposition’s involvement). Therefore, this
amendment is unconstitutional.

2. The two eminent persons, who are to be appointed, are not given any
criteria, one of the two persons has to come from SC/ST/OBC and no
other criteria is given. Hence it is vague. This may lead to arbitrary
exercise of power.

3. The law minister is a member of NJAC, who represents the

government and government being a major litigant in constitutional
court. Hence, the judges so appointed may have a biased approach,
compromising independence of Judiciary. Therefore, it shall be
declared as unconstitutional. Once declared unconstitutional, there will
be a void created, hence we revert back to 3rd Judges Case.

This Judgement is criticized as judiciary giving power to itself.

 Dissenting opinion of Justice Charmeshwar

He draws distinction b/w basic structure and basic feature. Equality is a feature
of basic structure. Features of equality are reflected in Article 14, 15, 16, 17.
Features can be changed but structures cannot be changed. Equality cannot be
removed but how it is reflected can be changes. Judicial Primacy is a feature and
Judicial Independence is Structure. Judicial Primacy was introduced by 2nd and 3rd
Judges case. It was not there in the original Constitution. It was written as
‘consultation’, it was not originally binding. Idea of Constitution was not to have
an absolute authority for appointment. Hence the power was given to two
authorities; President in consultation with CJI. But now it became binding in
President to follow advice of CJI and 2 other judges. If NJAC does not violate
basic structure it should prevail.

Additionally, Justice Charmeshwar observed that Collegium lacks transparency

and accountability and there is a need to keep a check over the appointment of
judges and we should explore other options also. He observed that no legal system
in the world has self-appointing authorities which tends to lead to arbitrary
exercise of power. Therefore, there has to be some checks and balances.

As of law we go to 3rd Judges Case as law of the land.

Appointment of Judges is completed

Powers of Courts
Jurisdiction:

· Territorial: MP HC can entertain cases emerging in MP

· Subject matter: Different court for POCSO, arbitration etc.

· Pecuniary: Based on valuation, different court for different values

· Original: Court of First instance. Where you go first time for a case.

· Appellant: Where you appeal against the case of Original Jurisdiction’s decision.
Supreme Court Jurisdiction

1. Power to punish for its contempt (Article 375): Both Civil and Criminal.

Contempt reefers to willful disobedience of order of the court. Or breach of undertaking given to
court. Usually, it is civil contempt but contempt where shear disobedience of judges with
criminal intent to defame or demean the court or creating hinderance in the course of justice will
amount to criminal contempt. You may read about case of *Arundhati Roy. She was putting a
dharna in SC. Also, case of *Prashant Bhushan. Idea is that procedure of justice should not be
hindered. Allegation put on judges of corruption will be excused if there is element of truth.
Hindering is criminal contempt, not following order is civil. Contempt of court act 1971 which
regulates exceptions and punishments for any action of contempt.

2. Original Jurisdiction to inter-governmental disputes (Article 131): Disputes B/w 2

state government or center and state government. State is not according to Article 12.
Example: Indian Railways is an instrumentality of states to be read under Article 12. It was
not considered as an eligible party to be sued under Article 131.

*State of WB vs. UOI, 1963

State of WB evoked Article 131 for parliament making laws on subjects under list II. However,
SC said it was well within the doctrine of ancillary powers.

*State of Rajasthan vs. UOI

After emergency fresh election was announced. Janta Dal Govt was elected. The govt through
the HM issued the order to the CMs of Congress ruling states to advice the governors to dissolve
the state assembly and order a fresh election. This order of Janta govt was challenged in SC.
They went under Article 131 challenging the validity of the order. The court held that it is a
constitutional right of the state govt to continue and not merely a political issue. Any question of
law on fact.

Court distinguished b/w State and state govt. The court does not distinguish b/w state and state
govt and diluted the concept of dispute.

SC can invoke Article 142, i.e., power to do complete justice to give any remedy to resolve the
dispute. Article 131 is a major provision to maintain the federal nature of India, i.e., cordial
center state relationship. It is role of judiciary to check their powers. It is derived from US
constitution Article 3 Section 2.
 3. Appellate Jurisdiction (Article 132-134): It is highest court of appeal.

4. Extensive Appellate Jurisdiction (Article 136): Power to grant special leave. SLP can
be filed against Civil Court

5. Original Jurisdiction to issue writs or any other remedy of FR (Article 32): Can
grant damages or any other remedy.

6. Court of Records: As provided under Article 129 SC should be a court on record. Court
of record is developed under UK. Idea was that law should be known to everyone. One of the
peculiar systems is precedent. Judgements were started to be published so there was a need to
record it. This is what was going on in common law system. Therefore countries that follow
common law system has a procedure of recording and publishing it. This also facilitates
Article 141. Until and unless they record their proceedings Article 141 will not work.

7. Advisory Jurisdiction (Article 143): Like 3rd Judges case (In Re Presidential Election)
The president may refer to take advice from SC. There is only one party. Advice is not
binding on the president rather it has a precedential value for legal system.

8. Power to review its own decision (Article 137): A review petition may be filed to
review its own decision in the same court. Even after review petition has been rejected a
curative petition may be filed. When every petition is exhausted you can use curative
petition. Incorporated by *Ashok Hurra vs Rupa Hurra.

9. Power to make any order necessary to do complete justice (Article 142): Simple
example is PIL. Originally Article 32 required Locus Standi. An exception was created by
way of PIL. The idea of locus standi is diluted. This was done in light of Article 32 read with
Article 142 (Power to do complete justice).

Notes missing of 15/03/24

18/03/24

If HC has decided criminal matter against:

1. Acquittal: No criminal offense has found by lower court and HC had convicted
that too with death sentence that is a right to appeal to SC under Article 134.

2. If the HC has withdrew the trial from the subordinate court and conducted a trial
by itself (supervisory jurisdiction) and convicted the person of death penalty. In
this case also person can go to SC.

3. Where the HC had granted a certificate that there shall lie an appeal to SC.
The cases that do not fall within these categories will go under Article 136.

136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Discretion is always checked by doctrine of arbitrariness. If HC denies certificate of appeal the

matter will go under Article 136. There can be appeal to SC in case of relating to armed forces
but not under 136.

19/03/24

Article 136 (Special Leave Petition)

It is a form of JR of Judicial branch. The purpose was to correct any error or injustice caused and
do not proceed with the channels of appeal. It sets precedents which if not decided converts
courts or subordinate courts may fail to provide justice, interpretation of laws and declaring
legislations unconstitutional.

*Khoday Distillaries vs. Mahadeshwara

It relied on Kunhayammaed vs. State of Kerela. Two stages of filing of writ petition:

1. A Disposal to a prayer to file SLP whereby the party seeks special leave from the SC to
file an appeal. The SC here exercises discretionary power to allow or deny such appeal.

2. The decision of such appeal on merits.

The application in stage 1 maybe accepted or denied by court through the exercise of
discretionary power. There is a set of rules laid down for the exercise of discretionary power. It
is controlled by administrative law. Genesis of this is not legislature but precedence. It finds
derivation from Article 14 and 21. There should be reasonableness in such exercise of
discretionary power. An example of discretionary is granting of driving license. RTO can either
accept or deny or grant the license. He needs to give speaking order, i.e., he needs to give
reasons. It needs to be logical etc. He can’t deny driving license to a person because he is of
particular religion. There should be logic behind it.

*Dhakeshwari Cotton Mills vs. Commissioner Income Tax West Bengal

The SC denied to put restrictions on discretionary powers under Article 136. They said they
cannot create water tight compartment that you will grant SPL and not grant here. These are
implicit under Article 136. The court stated that it is an exceptional and overriding power which
the court exercises only in special circumstances and with caution. It is often referred to be as
plenary power or overarching or sweeping powers. Everything that does not fall within Article
132, 133, 134, or 32 will go here. Technical hurdles should not become an impediment to justice
and therefore discretionary powers should not be restricted.

[2 restrictions we read are:

1. Locus Standi

2. Condonation Period]

When SC denied the grant to appeal the case is resumed for its original status. Suppose an SLP is
filed against an order of Subordinate court. Normal route is to appeal in HC, SLP is
extraordinary court. If SC rejects SLP then it can go to the original channel, appeal to HC. In
normal course now it can go to HC after SC, say, under Article 133.

In case SC accepts it, the normal channel of appeal shall not be available because it is sub judice
with SC. SC will now become appeal court. It can either confirm, deny or modify the order. It
b/w SC can also grant interim relief. Suppose there is a bail order against a heinous criminal.
Against such order a SLP is files. SC as a conclusion can confirm, deny or modify the order. But
before the final decision on merits interim relief can be granted.

The order of stage 1 to accept or reject SLP need not be a speaking order. SC does not give
Speaking order for 99% cases. But if SC has given speaking order, then it becomes binding on
all lower courts, including SC as well, under Article 141 because it involves an interpretation of
law. Hence, they don’t normally pass speaking order. SC Rules, 2013 describes powers of SC
and rules for functioning of such power. On Monday and Friday miscellaneous matters are taken.
SLP matters are decided on these days.
Under Article 136 it is a question of law (wider term) which is deliberated by SC in contrast to
Article 132, 133, 134 where a substantial question of law (narrower law) is to be discussed.

When SC decides question of law it is a court of equity, i.e., it is leaning towards justice. There
shall be not hurdles to justice. A new right maybe created. Under Article 132, 133, 134 court can
only interpret the provisions.

Article 137 (Review)

Judicial Review

1. Administrative

2. Legislative

Review of Judiciary
SC has power to review under Article 137. It is different from appeal because appeal is file to a
higher court which is different and higher in hierarchy. Review is in the same court SC Rules,
2013 provides a 30 days limitation to file a review petition.

*Northern India Caterers vs. Lt. Governor of Delhi, 1979

Court stated that review is not for the purpose of fresh hearing, it is to correct an apparent error
or any injustice caused due to a judgement.

Example: remedy is granted as Rs. 30 costs for each passing day, cost should be Rs. 300 court by
mistake write Rs. 3000.

SC rules provide that same bench the decided the bench shall review the case.

Recent review petitions are: one wrt to the judgement relating to SC/ST Act. There is a bar for
anticipatory bail for cases under this act. It was held unconstitutional by a bench of 2 judges.
Review petition is filed for this judgement. It was rejected. In Sabrimala case it was also
rejected.

The procedure of review petition is regulated by SC Rules, 2013.

20/03/24

*P.N. Eshwara Iyer vs. Registrar, SC of India, 1980

Steps to grant SLP:

1. You file petition to grant special leave

2. It is decided on merits.
In Article 137:

1. Petition to allow for review

2. It is decided on merits

It was earlier decided by SC, Rules, 1966 and was amended in 1978. It done away with the oral
hearing thing. Order 47 of SC Rules, 2013 governs Review Petition right now.

It was argued who challenged this rule were arguing that oral hearing was of essence of
adversarial system. Court upheld the validity of SC Rules amendment and held that right to be
heard or represented could be effective either by an oral hearing or by a written submission.

Further in this case it was held that the petition should highlight the ground for review.

Ground for review of civil proceedings shall be similar to that provided under CPC that is Order
47 of Rule 1 of CPC.

Where it is allowed in criminal cases:

*Kamlesh vs. Mayavati, 2013

1. Error apparent on the face of law would mean discovery of new facts or which could not
be known earlier even after reasonable care.

2. Any error apparent

3. In what all cases review petition is not maintainable

4. A weak evidence not relied on court

21/03/24: Notes missing

Curative Petition

22/03/24

Other Powers of Jurisdiction of Supreme Court

1. Article 138: Talks about, extra powers will be granted to SC by parliament. The
parliament is entitled to extend the jurisdiction of SC.

2. Article 139: Parliament is entitled to confer powers on SC to issue writs under Article 32.

3. Article 139A: Where a similar matter/substantially same is pending in 2 or more HC or

one or more HC and SC, and SC is satisfied to its own motion or an application is made by
Attorney General or by consent of the parties involved, SC can withdraw the matter from HC
and take them up.

Example was SP Gupta vs. Union of India (1st Judges case) where an order of the law ministry
was challenged in various HCs and was taken up by SC.

4. Article 140: Ancillary powers- Parliament may confer such powers to SC which may be
necessary to exercise the original power. This is applicable usually to Centre-State
Relationship.

Centre is given powers under List 1 and State can under List 2 and both can make powers under
List 3, here some powers are related and hence ancillary powers are read here. The genesis of
this doctrine is Necessary and Proper Clause of US. Commerce clause only kicked in in US
when there were any trade b/w states and not within states. The wider interpretation of this
clause was done to include social security as well because social security led to non-uniform
prices and gave unfair advantage to one state over other. Hence with wider interpretation the
Centre assumed the power to regulate social security too.

5. Article 144: Law declared by SC is binding on SC. Non reportable judgement do not
become binding on all the courts but only on the parties involved. Reportable judgements are
binding on all HCs and SC itself. Ratio Decidendi is ratio or interpretation of law or
underlining principle is binding and obiter dictum, i.e., a general observation is not binding.
The material facts concluded along with law becomes binding on the parties.

Prospective overruling: A larger bench says that a smaller bench is incorrect in interpretation of
the case. This is overruling. Overruling means all the effective part will be undone. Retrospective
means that anything done till now will have to be waived off. If a person is convicted, he has to
be acquitted. Prospective means that it will come into operation only from that day. Prospective
overruling was first introduced in IC Golaknath case. The land ceiling legislation (to give land
from zamindar to landless labourers) was declared unconstitutional but applied prospectively.

6. Article 142: SC may pass order, decree or judgement to do complete justice and such
order, decree or judgement is binding across the country and enforcement is done according
to laws of Parliament.

7. Article 143: Advisory jurisdiction of SC- The parliament refers the matter to SC framing
questions. The registrar gives the notice to attorney general and take directions from the court
who all shall be parties representing their concerns in their reference cases. Is SC bound to
give advice? No, if the matter is already settled by it or otherwise. That was the case in *M.
Ismail Farooqi vs. UOI, the court declined to invoke its advisory jurisdiction as referring the
matter to be superfluous as the court has already decided the constitutional validity of the
legislation.

*In Re Special Courts Bill, 1978, explains advisory jurisdiction of SC. It said that it is not
necessary for SC to answer the questions referred. Can the president refer hypothetical question?
If the question is anticipatory then it can be answered. However speculative opinions are
worthless and SC can deny giving such opinions. Specific or general reference. Vague and
general questions need not refer under Article 142. While answering the reference questions the
SC is not violating the scheme of separation of powers.

[1] This
amendment has been struck down by the Supreme Court in the Supreme Court
Advocates-on-Record Association and another Vs Union of India judgment dated 16-10-2015,
AIR 2016 SC 117.