CONSTITUTION OF INDIA : - SOME BASIC QUESTIONS by : DR. T.K. JAIN AFTERSCHO ☺ OL centre for social entrepreneurship sivakamu veterinary hospital road bikaner 334001 rajasthan, india FOR – PGPSE / CSE PARTICIPANTS mobile : 91+9414430763
My words.... Here I present a few basic questions for fundamental understanding of the Constitution of India. I wish that more people should become entrepreneurs. An ordinary Indian entrepreneur wishes to remain an honest entrepreneur and contribute to the development of nation, but our systems and processes ...
When there is conflict between fundamental rights and directive principles, which will prevail ? State of Madras v. Champakram Dorairajan, AIR 1951 S.C. 226: “The Directive Principles of State Policy have to conform to and run as subsidiary to the chapter of Fundamental Rights.”
What was teh decision of Kesavanand Bharti v. State of Kerala, A.I.R. 1973 S.C. 1461? Parliament can amend any Part of the Constitution including the Fundamental Rights. But the Court made it clear that Parliament cannot alter the basic structure or framework of the Constitution
What was the decision in Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625? The Supreme Court unanimously held clauses (4) and (5) of Article 368 and Section 55 of the 42nd Amendment Act as unconstitutional transgressing the limits of the amending power and damaging or destroying the basic structure of the Constitution
Can directive principles be enforced by courts? No they not enforceable in the courts. they do not create any justiciable rights. they are to be implemented by legislations. They do not confer upon or take away any legislative power from the appropriate legislature. The courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles. The courts cant compel the Government to carry out any Directive principle, although, it is the duty of the state to implement the Directives
Who can make a law on tax – centre or state ? tax is enumerated in the Union List and the State Lists both. There is no tax subject included in the Concurrent List. Thus both centre and state have separate matters relating to tax (for example, agriculture tax is a part of state list)
On the issue of distribution of powers, which pattern has our country followed ? The Government of India Act, 1935 followed the Canadian pattern in Canada there are three lists of subjects, one consists of subjects exclusively belonging to the Centre, the other consists of those exclusively belonging to the States and the third where both can make law. Residuary subjects fall within the central jurisdiction. The lists of subjects in India are much more detailed as compared to those in the Canadian Constitution
What is the number of items in each list – center's, state's and concurrent ? 97, 66 and 47.
If there is a matter in concurrent list and both centre and state make a law on that matter, which law will prevail ? the law made by Parliament shall prevail over the law made by the State Legislature and the latter will be valid only to the extent to which it is not repugnant to the former
Who can make a law for wealth tax on agricultural property – centre or state ? The Supreme Court has held that the power to impose wealth-tax on the total wealth of a person including his agricultural land belongs to Parliament in its residuary jurisdiction (Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061).
When can centre make a law on state list ? For matters relating to union territory with respect to a matter enumerated in the State List if the Council of States declares by a resolution supporetd by two-thirds of its members present and voting, that it is necessary in the national interest that Parliament should make a law on that matter. But this law will be valid only for 6 months
Can parliament make a law on state list during emergency ? Yes, during emergency, Parliament has the power to make laws for the whole or any part of the territory of India with respect to all matters in the State List. These laws will cease to have effect on the expiration of six months after the end of emergency .
Can states request for a law on state list ? Yes if two or more States are desirous that on any particular item included in the State List there should be a common legislation applicable to all such State then they can make a request to Parliament to make such law on that particular subject. Such request shall be made by passing a resolution in the legislatures of the State concerned.
Can parliament make a law on state list to implement international treaty ? Yes (as per article 253)
Can parliament make reasonable restriction on trade ? Yes According to Article 302 Parliament may, by law, impose such restrictions on the freedom of trade, commerce and intercourse as may be required in the public interest.
Who gets residuary powers? Residuary power is vested in the Union.
Is our Constitution purely federal ? the Constitution of India is neither purely federal nor purely unitary.
What was mentioned American declaration of independence about fundamental rights ? The Declaration of American Independence 1776, stated that all men are created equal, that they are endowed by their creator with certain inalienable rights: that among these, are life, liberty and the pursuit of happiness.
Compare America and England in terms of constitions? England has unwritten constitution. There is ‘Parliamentary Supremacy’ in England the American Bill of Rights (contained in first ten Amendments of the Constitution of the U.S.A.) is equally binding upon the legislature, as upon the executive. The result has been the establishment in the United States of a ‘Judicial Supremacy’
Who suggested and who opposed fundamental rights as part of constitution of India ? the Simon Commission and the Joint Parliamentary Committee had rejected the idea of enacting declaration of Fundamental Rights but The Nehru Committee recommended the inclusion of Fundamental Rights in the Constitution
What are the fundamental rights Right to Equality—Articles 14 to 18; Right to Freedom—Articles 19 to 22; Right against Exploitation—Articles 23 and 24; Right to Freedom of Religion—Articles 25 to 28; Cultural and Educational Rights—Articles 29 and 30; Right to Constitutional Remedies—Articles 32. ?
Is stock exchange a state authority under article 12 ? No in Satish Nayak v. Cochin Stock Exchange Ltd. (1995 Comp LJ 35), the Kerala High Court held that since a Stock Exchange was independent of Government control and was not discharging any public duty, it cannot be treated as ‘state authority’ under Article 12
Is BCCI a state under article 12? No In Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, Supreme court held that BCCI was not State for purposes of Article 12 because it was not shown to be financially, functionally or administratively dominated by or under the control of the Government
What is doctrine of waiver ? a person is his best judge and that he has the liberty to waive the enjoyment of his rights which are conferred on him by the State. The person must have the knowledge of his rights and that the waiver should be voluntary.
Is a law made to allow black money to be converted to white money a discrimination with tax payers and against article 14? No R.K. Garg v. Union of India, AIR 1976 SC 1559. The legislation under attack was the Special Bearer Bonds (Immunities and Exemptions) Act, 1981. It permitted investment of black money in the purchase of these Bonds without any questions being asked as to how this money came into the possession.The court rejected the appeal, on the logic of the magnitude of the problem of black money which had brought into being a parallel economy.
Is equality in public employment a necessary feature of contstitution? Secy. of State of Karnataka v. Umadevi (3) (2006) 4 SCC Supreme court : equality in public employment is a basic feature of the Constitution
What prohibitions have been provided by article 18? No title ( not being a military or academic distinction) , will be conferred by the State. No citizen of India can accept any title from any foreign State. No person, who is not a citizen of India can, while he holds any office or trust under the State,) accept without the consent of the President, any title from any foreign State. No person, holding any office of profit or trust under State can without the consent of the President, accept any present, emolument or office of any kind from or under a foreign State.
What freedoms are available to a person under article 19? SIX FREEDOMS TO : speech and expression; assemble peaceably and without arms; form associations or unions move freely, throughout the territory of India; reside and settle in any part of the territory of India; practise any profession, or to carry on any occupation, trade or business.
When was fundamental duty added in the constitution ? Article 51A imposing the fundamental duties on every citizen of India was inserted by the Constitution (Forty-second Amendment) Act, 1976.
What is the doctrine of eclipse? A law made before the commencement of the Constitution remains eclipsed or dormant to the extent it comes under the shadow of the fundamental rights, i.e. is inconsistent with it, but the eclipsed or dormant parts become active and effective again if the prohibition brought about by the fundamental rights is removed by the amendment of the Constitution.
When was doctrine of eclipse evolved ? The doctrine was first evolved in Bhikaji Narain Dhakras v. State of M.P., A.I.R. 1955 S.C. 781
Can there be a single person law ? Yes A law may be constitutional, even though it relates to a single individual, if that single individual is treated as a class by himself on some peculiar circumstances.
Can an artificial person also get benefit under article 14? Yes Article 14 applies to all persons and is not limited to citizens. A corporation, which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary v. Union of India, AIR 1951 SC 41).
Is differentiation among people banned by article 14? No Article 14 does not forbid classification or differentiation if it is based on reasonable grounds of distinction.
How can we decide that the basis of classification is reasonable or not ? State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.: - Permissible classification must satisfy two conditions, namely; (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the differentia must have a rational nexus with the object sought to be achieved by the statute in question.
Does Article 14 forbids classification and class legislation both ? No Article 14 forbids class legislation, but does not forbid classification.
What is the doctrine of implied powers? It means where the legislature has conferred any power, it must be deemed to have also granted any other power without which that power cannot be effectively exercised.
What is Conditional legislation ? It is defined as a statute that provides controls but specifies that they are to come into effect only when a given administrative authority finds the existence of conditions defined in the statue.
What is the purpose of doctrine of judicial review ? The purpose is to study legislation to ensure its conformity with the Constitution.
What is a writ? writs are issued by the High Court as extraordinary remedies in cases where there is either no remedy available under the ordinary law or the remedy available is inadequate
How does the scope of writs by High courts is wider than that of supreme court ? The jurisdiction of the High Court also extends to the enforcement of rights other than fundamental rights provided there is a public duty, but the Supreme Courts jurisdiction to issue writs extends to fundamental rights (Ref : Common Cause v Union of India, A.I.R. 1999 SC 2979).
What role does the Supreme Court play ? It hears appeals (in civil and criminal and other cases) from High Courts and certain Tribunals. It has also writ jurisdiction for enforcing Fundamental Rights. It can advise the President on a reference made by the President on questions of fact and law.
What is the rule of pith and substance It means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.
Is colourable law valid ? No If a legislature may pass a law in such a way that it gives it a colour of constitutionality while, in reality, that law aims at achieving something which is beyond the powers of the legislature, then this legislation is called colourable piece of legislation and is invalid.
What is 'harmonious construction' ? When there is a conflict between two entries in the two different lists then the two entries should be so interpreted, that each of them is given effect and, for that purpose the scope and meaning of one may be restricted so as to give meaning to the other also.
What is plenary power? If legislative power is granted on a subject and there are no limitations imposed on that power, then it is to be given the widest scope that its words are capable of
What is president rule under article 356? In case the Governor of a State reports to the President, or he is satisfied that the Government of a State cannot be carried on according to the provisions of the Constitution, then he (President) can make a proclamation to that effect. By that proclamation, he can take over the functions of the Government of the State and all or any of the powers exercisable by the Governor or any body or authority in the State, and transfer the powers of Legislature to the Parliament. Parliament can then make laws with respect to all state matters
Can president's rule be challenged in court ? Yes The action of the President under Article 356 is a constitutional function and is subject to judicial review. The Supreme Court or High Court can strike down the proclamation if it is found to be mala fide or based on irrelevant grounds.
What is the validity period of president's rule ? It is valid only for six months at a time (if approved by both the Houses of Parliament within a period of two months from the date of proclamation). A fresh proclamation can be issued to extend the life of the existing one for a further period of six months but in no case such proclamation can remain in force beyond a consecutive period of three years.
What is the validity of the law made by the parliament under article 249 ? 6 months from proclamation Parliament can make a law with respect to a matter enumerated in the State List if the Council of States declares by a resolution supporetd by two-thirds of its members present and voting, that it is necessary or expedient in the national interest that Parliament should make a law on that matter.
What is the difference between structure of courts for civil and criminal matters ? Civil matters : District Court presided over by the District Judge, with a number of Additional District Judges & Courts of Judges (sometimes called subordinate Judges) and in, some States, Munsiffs. These Courts are created under State Laws. Criminal matters : court of sessions & magistrates
Do high court try out cases first time ? Generally not – except relating to writs (fundamental rights etc).. High Courts of Bombay, Calcutta and Delhi, have ordinary original civil jurisdiction (i.e. jurisdiction to try regular civil suits) for their respective cities. They can also hear references made by the Income Tax Appellate Tribunal under the Income Tax Act and other tribunals.
What are the powers of the court of sessions ? The Court of Session can try all offences, and has power to award any sentence, prescribed by law for the offence, but a sentence of death requires confirmation by the High Court. Judicial Magistrates (both – first class and second class) are subject to the control of the Court of Session. It is also a Court of original jurisdiction for criminal matters
What is the difference between role of 'Judicial' and 'Executive' Magistrates? 'Executive' Magistrates do not try criminal prosecutions, and their jurisdiction is confined to certain miscellaneous cases which are of importance for public tranquillity and the like. Their proceedings do not end in conviction or acquittal, but in certain other types of restrictive orders. In some States, by local amendments, Executive Magistrates have been vested with powers to try certain offences. Judicial magistrates try criminal cases.
quo warranto It is an enquiry into the legality of the claim which a person asserts, to an office or franchise and includes the process to oust him from such position if he is an usurper.
When can certiorari be used ? wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially in excess of their legal authority
What is Prohibition ? A writ of prohibition is issued to an Inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it
What is mandamus ? It is a command issued to direct any person, corporation, inferior court, or Government requiring him or it do a particular thing specified therein which pertains to his or its office and is further in the nature of a public duty.
What is habeas corpus? It is an order to let the Court know on what grounds he has been confined and to set him free if there is no justification for his detention.
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