Model Q Ans For Constitution

Model Questions & Answers for Judicial Services Main Examinations On Indian Constitution Q.
1 Preamble is Key to understand the mind of constitution makers. Explain it. Ans. Preamble of our constitution is the introduction of our constitution. It contains in nutshell the ideals and aspirations of our constitution makers. It enumerates the purpose and objectives that the legislation intended to achieve. It embodies the ideals, hopes, faith and aspirations of the people of India. It secures justice, liberty, equality and fraternity to all citizens. It helps to interpret the provisions of constitution. It makes clear the great rights and freedom of people of India, which are reflection of mind of constitution makers. In re Berubari case AIR 1960 the Apex Court has held that the preamble to the constitution is a key to open the mind of the constitution makers and shows the general purpose for which they made the several provisions in the constitution. Thus we can say that preamble is key to understand the mind of constitution makers. Q. 2 The right to speech and expression is not absolute. What are reasonable restrictions on it under Indian Constitution? Ans. Article 19 (1) (a) guarantees to the citizens of India Freedom of Speech and Expression. Thus Article 19 (1) (a) says that all citizens shall have the right to freedom of speech and expression. But this right is subject to limitations imposed U/Art. 19 (2) which empowers the state to put reasonable retractions on the following grounds, in the interest of 1. 2. 3. 4. The Sovereignty and integrity of India. The Security of State. Friendly relation with foreign States. Public order.
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5. 6. 7. 8.
Decency and morality. Contempt of Court. Defamation. Incitement to an offence. Freedom of Speech and expression as provided U/Art. 19 (1) (a) means the right to express ones own ideas and thought freely by words of mouth, writing, printing, pictures or any other mode. Freedom of expression helps an individual to attain self-fulfillment. It assists in the discovery of truth and expression of personal views on any matter. In Prabhu Dutt Vs UOI, AIR 1982 SC-6 the apex Court has held that the right to know news and information regarding administration of the government is included in the freedom of press. But this right is not absolute and restrictions can be imposed on, it in the interest of society and the individual, from which the press obtains the information. Thus right to speech and expression is not absolute, but subject to restrictions mentioned u/Art- 19 (2) as stated above.
Q. 3 what are the Jurisdiction of Supreme Court. State to the point:Ans. The Supreme Court of India is the apex court in our integral/unified judicial system. According to constitution of India, 1950 it is the supreme appellate court. Its decisions /verdicts become ultimate law. The verdicts of the Supreme Court become final subject to Review u/art. 137. In some cases (rarest of rare) the remedy of curative writ is available against final verdicts of Supreme Court. The Supreme Court has following Jurisdictions (1) Original Jurisdiction:(i) Writ Jurisdiction U/Art. 32. (ii) Exclusive Jurisdiction U/Art. 131
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Appellate Jurisdiction:(i) Constitutional Appellate Jurisdiction U/Art. 132 (ii) Civil Appellate Jurisdiction U/Art. 133 (iii) Criminal Appellate Jurisdiction U/Art. 134 (iv) Special Appellate Jurisdiction U/Art. 136
(3)
Advisory Jurisdiction U/Art. 143.
Q. 4 when appeal may be preferred to S.C in the constitutional matters? Ans. Vide Article 132 (1) an appeal shall lie to Supreme Court from any judgment, decree or final order of a High Court, if High Court certifies that the case, involves a substantial question of law as to the interpretation of the constitution. Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that such question as aforesaid has been wrongly decided. U/Art. 132 (1) three conditions are necessary for the grant of certificate U/Art. 134-A by the High Court:(1) (2) (3) The order appealed must be against a judgment, decree or final order made by High Court in civil, criminal or other proceedings. The case must involve a question of law as to the interpretation of this constitution and If the High Court U/Art. 134-A certifies that the case be heard by the Supreme Court. The words other proceedings include all proceedings, other than civil and criminal; they include revenue proceedings which includes proceedings under the sales tax Act, or the income tax Act etc.
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Secondly, the case must involve a substantial question of law as to the interpretation of the constitution. In Darshan Singh Vs State of Punjab AIR 1953 SC 83 , it was held that In an appeal before the Supreme Court, the appellant is not entitled to challenge the propriety of the decision of the High Court appealed against on the ground, other than that on which the certificate was granted by the High Court, except with leave of the Supreme Court. Such leave would normally be granted by the Supreme Court, where the trial before the High Court has resulted in the grave miscarriage of Justice. But even after the certificate is granted by the High Court, the Supreme Court may refuse to hear the appeal, if it is satisfied that the appeal is not competent. Q. 5 Is Supreme Court bound by its own decisions? Ans. Article 141 of the constitution says law declared by the Supreme Cou rt to be binding on all Courts. i.e the judgment of the Supreme Court will be binding on all Courts in India. The expression all Courts within the territory of India clearly means courts other than the Supreme Court. Thus Supreme Court is not bound by its own decisions and may in proper case reverse its previous decisions. This question was considered in detail by the Apex Court in the case of Bengal Immunity Co. Vs State of Bihar AIR 1955 SC 661. In this case the Court held that there is nothing in the Indian constitution which prevents the Supreme Court departing from its previous decision, if it is convinced of its error and its beneficial effect on the general interest of the public. But Supreme Court should not lightly dissent from its previous decisions. Its power of review must be exercised with due care and caution and only for advancing the public well being in the light of Surrounding circumstances of each case brought to its notice, but it is not right to confine its power within rigidly fixed limits.
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Q. 6 whether non-member can be re-appointed a minister without a getting himself elected? Ans. In a landmark judgment in S.R. Choudhary Vs State of Punjab AIR 2001 SC 2707, the Supreme Court has held that a non-member cannot be repeatedly appointed as a minister for a term of six consecutive months without getting himself elected in the mean while. The Apex Court held that Art. 164 (4) is in the nature of an exception to the normal rule of only members of the legislature being ministers restricted to a short period of six consecutive months. This exception is essentially required to meet very exceptional situation and must be strictly construed and sparingly used. The non-members inclusion in the cabinet was considered to be a privilege that extend only for six months without being elected as member. This is only one time privilege for the individual concerned. The intention of the framers of constitution to restrict such appointment for a short period of six consecutive months cannot be permitted to be frustrated through manipulation of re-appointment. Thus non-member cannot be re-appointed a minister without getting membership either by election or nomination of any houses of legislature Q. 7 Convicted person cannot be appointed chief minister. Constitution Superior, not mandate. Discuss. Ans. In a landmark judgment in B.R- Kapoor Vs State of Tamil Nadu & another (2001) 6 SCALE 309 a five judge constitution bench has held that a person convicted of criminal offence and sentenced to more than two years of imprisonment cannot be appointed as chief Minister. In 2001 Legislative Assembly Elections AIADMK party headed by Smt. Jayalalita was elected with thumping majority, prior to election a number of charges were leveled against her under the prevention of corruption Act for committing certain offences by her during her previous tenure as a Chief Minister. She was convicted and sentenced to imprisonment for more than 2 years. As a result of this, she was disqualified to contest election by the Election commission. But her party elected her its leader. The Governor Smt. Fatima Bibee appointed her Chief Minister for a period of six months under art. 164 (4) of constitution of India but the Apex Court held that the appointment of Smt.
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Jayalalita as a Chief Minister was not made in accordance with the provision of the constitution and therefore, unconstitutional and invalid. The Supreme Court also rejected the argument that Mandate is Supreme and the will of the people must be respected, but Court held that it can be respected only when it is in accordance with provision of the constitution. Thus a convicted person cannot be appointed Chief Minister. Constitution is superior and not the mandate as Supreme Court has viewed in aforesaid case. Q. 8 what are General Powers of Supreme Court? Ans. Main General powers of Supreme Court are (1) (2) U/Art. 129 the Supreme Court is Court of record and has all powers of such Court including the power to punish for contempt of itself. U/Art. 136 the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order of any Court, except Courts under Armed forces. U/Art. 32 the Supreme Court may issue direction or orders or writs for enforcement of fundamental rights. U/Art. 139 the Supreme Court has power to transfer of certain cases, suomotu, or application of aggrieved person. U/Art. 145 the Supreme Court has power to made law for regulation of practice and procedure of the Court.
(3) (4) (5)
Q. 9 Independence of Judiciary is guaranteed under the Indian constitution. Discuss. Ans. The Indian constitution has provided several provisions to secure the independence of Judiciary. Under Indian constitution the Judges of the Supreme Court & High Courts have security of tenure. Justices of Apex Court or any High Court cannot be removed from office except by an order
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of the president on the ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of the House present and voting. The salaries and allowance of the judges of the Supreme Court & High Courts are fixed by the constitution and it is not subject to vote of legislature. The parliament can extend, but cannot curtail the jurisdiction and power of the Supreme Court (Vide Art - 138). Vide Art 121 neither in parliament nor in a State legislature can discussion take place with respect to the conduct of a judge in discharge of his duties. Article 124(7) says that No judge of Supreme Court can practice of law in any court, likewise any judge of high court cannot practice law except Supreme Court and high court where he was not judge The Supreme Court U/Art- 129 and the High Court U/Art- 215 have been empowered to punish any person for its contempt in order to maintain its independence. Article 50 directs the State to take steps to separate the judiciary from the executive in the public services of the state to secure independence of judiciary. Besides, aforesaid provisions some more provisions are made in our constitution to secure the independence of judiciary. Thus we can say that the independence of judiciary is guaranteed under the Indian constitution. Q. 10-write short notes on use and Abuse of PIL. Ans. Traditionally only those person can approach the Supreme Court or the High Court whose fundamental rights are infringed. But now Court permits PIL at the instance of any public spirited citizens for the enforcement of constitutional and other legal rights of any person or group of persons, who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. In Bihar Legal Support Society Vs Chief Justice of India , the Court made it clear that the strategy of public interest litigation has been resolved
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by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community. In spite of its baneful effect, the use of this new strategy by the Court for enforcement of various fundamental rights and other legal right is criticized by many person. While expanding the scope of the locus standi rules his Lordship P.N. Bhagwati expressed a note of caution also. He observed that But we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona-fide and not for personal gain or private profit or political motivation or other oblique consideration the court must not allow its process to be abused by politicians and others Thus it is clear that Honble justice Mr. P.N. Bhagwati was aware that the provision of PIL might be misused by vested interests. So he made it clear that the court will not allow the remedy to be abused by any me. A case of Janta Dal Vs H.S. Choudhary (1992) 4 SCC 305 is an important example where the petitioner tried to abuse the PIL facility for political purposes. Q. 11- Fundamental rights available against state and not against private individuals. Comment. Ans Individual needs constitutional protection against the state. The rights which are given to the citizens by way of fundamental rights as included in part III of the constitution are a guarantee against state action as distinguished from violation of such rights from private parties. Private action is sufficiently protected by the ordinary law of land. In P.D .Shamdasani V Central Bank of India AIR 1952 S.C the petitioner, in an application U/Art-32 of the constitution, sought the protection of the court on the ground that his property right under Article 19 (1) (f) and 31 were infringed by the action of another private person- The Central Bank of India. The Supreme Court dismissed the petition and held: Neither Article 19 (1) nor Article 31 (1) was intended to prevent wrongful individuals acts or to provide protection against merely private conduct
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The language and structure of Article 19 and its setting in part III of the constitution clearly show that the Article was intended to protect those freedoms against the state action other than in the legitimate exercise of its power to regulate private rights of property by individuals is not within the purview of the Articles. Besides this general principle that fundamental right available against state and not against private individual, there are certain provisions under our constitution wherein fundamental rights of citizens are protected against private individuals actions also. It is speci fically provided u/a 17, 19 (1) (d), 22, 23 and 24 of constitution of India. Q. 12- Discuss the powers of president to consult Supreme Court U/Art- 143 of the constitution. Whether the Supreme Court can decline to answer a reference? Explain. Ans Article- 143 provides that- if at any time it appears to the president that (a) (b) a question of law or fact has arisen or is likely to arise, and the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question for the Advisory opinion of the Court and the Court may after such hearing as it thinks fit, report to the president its opinion thereon. The use of word may in claus e (1) Of Article 143 indicates that the Supreme Court is not bound to answer a reference made to it by president. But under clause (2) if the president refers to the Supreme Court matters which are excluded from its jurisdiction under the proviso to Art131, the Court shall be bound to give its opinion thereon. In re Kerala Education Bill AIR 1958 the Supreme Court laid down the following principles to be followed in such cases:(1) The Supreme Court has under clause (1) discretion in the matter and in proper case and for good reason to refuse to express any opinion on the question submitted to it
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It is for the president to decide what question should be referred to the Court and if he does not entertain any serious doubt on the other provisions, it is not for any party to say that doubts arise also out of them. In a landmark judgment in Dr. Ismail Faruqui Vs UOI (1994) 6 SCC 360 the five judge bench of Supreme Court held that the presidential reference seeking the Supreme Courts opinion on whether a temple originally existed at the site, where the Babari; Masjid subsequently stood was superfluous and favoured one religions community and therefore, does not require to be answered. Thus it can be said that the Supreme Court can decline to answer a reference U/Art-143 of the constitution of India.
Q. 13- What is meant by Rule of Law? Explain with illustrations. Ans The Rule of Law means that no man is above the law and that every person, whatever be his rank or conditions, is subject to jurisdiction of ordinary Courts. Professor A.V. Dicey has written that Every official from the prime minister down to constable or a collector of taxes is under the same responsibility for every act done without legal justification as any other citizen. In Rubinder Singh Vs UOI, AIR 1983 the SC held that Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing the Paramount exigencies, of law & order. The rule of law imposes a duty upon the state to take special measure to prevent and punish brutality by police methodology. In Indira Nehru Gandhi Vs Raj Narayan AIR 1975 the S.C held that the Rule of law embodied in Article-14 is the basic feature of the Indian constitution and hence it cannot be destroyed even by an amendment of the constitution under Article 368 of the constitution.
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Thus doctrine of Rule of Law means Supremacy of law, equality before law and predominance of legal sprit. By Supremacy of law, we mean, that Government is subject to law and not above the law. According to A.V. Dicey Rule of law means and includes law a nd order, fixed rules, due process of law, natural law or principles of natural justice, elimination of, discrimination Judicial review of administrative actions. Q. 14- What is Judicial Activision? Does it serve any useful purpose? Ans Under the constitution of India, executive powers are with the president, legislative powers are with parliament and legislative Assemblies and judicial powers are with Judiciary. Whereas legislature is to make laws, executive is to implement the same and the judiciary is to interpret it. At times, it is noticed, that other two organs executive and legislature fail to discharge their respective obligations. At times, executive show in difference towards fundamental rights of citizens. Officers of various departments do commit wrongs to the citizens. It is duty of the judiciary to check excesses by law enforcing agencies or omissions in implementing law. High Courts and Apex Court have got powers under the constitution of India to provide protection to the constitutional rights of citizens. With a view to achieve this object and to enforce fundamental rights of, Courts have been issuing directions, from time to time. When this active role is played by the Judiciary in issuing such directions, it is generally called Judicial Activism. Judicial Activism requires intelligence, courage, boldness creativity and farsightedness. Judicial Activism has proved to be a boon for common man and for protection of fundamental rights of citizens. In Hussainara Khatoon Vs State of Bihar AIR 1979 the S.C directed that the under trial prisoners whose names and particulars are given in the list, submitted before Court, should be released forthwith as continuance of their detention was clearly illegal and in violation of their fundamental rights U/Art-21 of the constitution of India. In this case there were several under
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trial prisoners, who were charged with offences which were bailable, but who were still in jail presumably, because no application for bail had been made on their behalf or being too poor, they are unable to furnish bail bond. In Bandhua Mukti Morcha Vs UOI, AIR 1984, the Apex Court laid down certain guidelines to be followed by central Government and State Government of Haryana so that one day these workmen are able to realize that freedom is not only the monopoly of a few, but belongs to them all and that they are also equally entitled along with others to participate in fruits of freedom and development. Apart from above mentioned two cases, in a number of cases the apex Court and different High Courts, played active role to secure the fundamental rights of deprived classes of citizens and serve a very fruitful purpose in many ways. Q. 15- Discuss the true import of freedom of religion guaranteed under the constitution of India. Ans Religion is a matter of faith, but belief in God is not essential to constitute religion. Article 15 prohibits discrimination by the state against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them. Article 16 (2) provides that no citizen shall, on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. Subject to public order, morality and health : Article 25 provides for equality in matter of freedom of conscience and right to profess, practice and propagate religion. Article 26 provides that subject to public order, morality and health, every religious denomination or any section there of shall have the right (a) to establish and maintain institutions for religious and charitable purposes.
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(b) (c) (d)
to manage its own affairs in matters of religion. to own and acquire movable and immovable property and to administer such property in accordance with law. Article 27 provides for freedom as to payment of taxes for promotion of any particular religion Article 28 guarantees freedom as to attendance at religions instruction or religious worship in certain educational institutions. Secularism is a part of the basic structure of the constitution. It has been held by Honble apex Court that the acts of a state government which are calculated to subvert or sabotage secularism as enshrined in our constitution, can lawfully be deemed to give rise to a situation in which the government of the state cannot be carried on in accordance with the provision of the constitution. All these provision make it evident that our constitution guarantees freedom of religion to everyone.
Q. 16- CPC Amendment in Section 115 does not affect High Courts revisional jurisdiction under Article 226 and 227. Comment. Ans In Surya Dev Rai Vs Ram Chandra Rai AIR 2003 SC, 3044 the main question which arose for consideration was as to what was the impact of amendment in Section 115 of CPC brought about by the Act of 2002 on the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 or invoking the power of Superintendence under Art. 227 of the constitution against which earlier remedy of filing civil revision U/S- 115 of the CPC was available to the person aggrieved. In brief the question was whether an aggrieved person is completely deprived of the remedy of judicial review, if he has lost at the hands of the original Court and the appellate court through a case of gross failure of justice having been occasioned can be made out.
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In this case the appellant filed a suit for issuance of permanent preventive injunction based on his title and possession over the suit property which was a piece of agricultural land in the Court of Civil Judge. He also sought for relief by way of ad interim injunction order U/O- 39 R 1 & 2 CPC. His prayer was rejected by the trial Court and also by the appellate Court. Then he filed a petition in the High Court, Which dismissed it forming an opinion that the appellant was seeking interim injunction against a private respondent. Prior to the amendment in S-115 CPC, this remedy of final civil revision was available to the appellant U/S- 115 CPC. In this case the apex Court held that the amendment in S-115 CPC in 2002 does not affect the jurisdiction of the High Court U/A-226 & 227 of the constitution. Interlocutory orders passed by the subordinate Courts are open to challenge and continue to be subject to certiorari and supervisory jurisdiction of High Court. The power exists untrammeled by the amendment in S-115 of the CPC and available to be exercised subject to rules of self discipline and practice which are well settled. Q. 17- Constitutional safeguard to civil servant are not absolute. Discuss with help of case law. Ans Constitutional safeguard to Civil servants Article 310 of the Indian constitution incorporates the common law doctrine of pleasure of England, but not in totality. Article 310 provides that All persons who are member of the defence service or the civil service of the union or of All India Services holds office during the pleasure of the president. Similarly, members of the states services hold office during the pleasure of the Governor. But this rule of English law had not been fully adopted. Article 311 provides the following safeguards to civil servants against any arbitrary dismissal from their posts:(1) (2) No person holding a civil post under the union or the state shall be dismissed or removed by authority subordinate to that by which he was appointed. No such person shall be dismissed, removed or reduced in rank, except after an inquiry in which he has been informed of the charges against
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him and given a reasonable opportunity of being heard in respect of those charges. But in UOI Vs Tulsiram Patel (1985) 3 SCC 398, the Supreme Court has held that the dismissal, removal or reduction in rank of a Government servant under the 2nd proviso of Article 311 (2) without holding inquiry is in the public interest and therefore not violative of Art-311 (2) and Art-14 of the constitution. The second proviso to Article 311 (2) expressly provides that the audi alteram partem rule of natural justice shall not apply in the circumstances mentioned in the three clauses of the proviso. The object underlying the 2 nd proviso is public policy, public interest and public good. When the principles of the natural justice has been expressly excluded by the 2 nd proviso, it can not be imported by restoring to Art-14. According to 2nd proviso to Article 311 (2) reasonable opportunity of hearing is not available in the following cases:(1) (2) Where a person is dismissed or reduced in rank on the ground of misconduct which has led to conviction on a criminal charge. Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold inquiry. Where the president or the Governor, as the case may be, is satisfied that in the interest of the security of state, it is not expedient to hold such inquiry. In commissioner of police Vs Syed Hussain AIR 2006 SC 1246 the respondent was a police constable. He stood surety to criminals and aiding criminals in fleeing from jail. He was found guilty of misconduct earlier also and was punished. A departmental inquiry was initiated against him and the inquiry officer found him guilty and he was directed to be removed from service. He challenged his order of removal on the ground that it was disproportionate. The court held that the punishment of removal from
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service is not disproportionate particularly when on earlier two occasions he has been found guilty of commission of misconduct and punished therefore. Q. 18- Theory of basic structure is a limitation on amending power of parliament. Discuss with case law. Ans Limitation on Amending power The Constitution of India, 1950 provides the provision of amendment in part20 ,U/A -368.What is the basic structure has not been defined anywhere. The validity of the constitution (24 th amendment) Act 1971 was challenged in Keshvanand Bharti Case. The question involved was as to what was the extent of the amending power conferred by Article 368 of the constitution? A special Bench of 13 Judges was constituted to hear the case, and decided the issue by majority of 7-6 Judges. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The 24th amendment merely made explicit, that was implicit in the Unamended Article 368. Justice Khanna held that though there is no implied limitation on the amending power, but the power to amend does not include the power to abrogate the constitution, nor does it include the power to alter the basic structure or frame work of the constitution. Although the judges enumerated certain essentials of the basic structure of the constitution, but they also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case. In M. Nag Raj Vs UOI, AIR 2007 SC 71 5 Judge Bench of the Supreme Court has explained the basic feature theory again in detail as follows:Basic structures are systematic principles underlying and connecting provisions of the constitution. They give coherence and durability to constitution. These principles are part of constitutional law even if not expressly stated. The main object behind the theory is continuity and identity of the constitution.
In Indira Nehru Gandhi Vs Raj Narayan, the Supreme Court applied the theory of basic structure and struck down clause (4) of Article 329-A, which was inserted by the constitution (39 th Amendment) Act 1975, on the ground that it was beyond the amending power of parliament as it destroyed the basic feature of the constitution. The amendment was made to validate with retrospective effect the election of the then prime minister Indira Gandhi, which was set aside by the Allahabad High Court. Justice Khanna struck down the clause (4) on the ground that it violated the free and fair elections which was an essential postulate of democracy, which in turn was a part of the basic structure of the constitution. Thus we can say that theory of basic structure is a substantive limitation on amending power of the parliament. Q. 19- Give an account of the emergency provisions provided under constitution, with special reference to Article 356, which is the most misused Article of the Indian constitution. Ans The Emergency Provisions The constitution of India provides for three type of emergency:(1) (2) (3) (1) National Emergency U/A-352 State Emergency U/A-356 & Financial Emergency U/A-360. National Emergency:- Art. 352 provides that if the president is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened either by war or external aggression or armed rebellion, he may make a proclamation of Emergency in respect of the whole India or any part of India, as may be specified in the proclamation. The proclamation of emergency made under clause (1) may be varied or revoked by the president by a subsequent proclamation. A proclamation of Emergency can be made even before the actual occurrence of event contemplated in Art. 352 have taken place, if the
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president is satisfied that there is imminent danger of war or external aggression or armed rebellion. The president shall not issue a proclamation, unless the decision of the union cabinet has been communicated to him in writing, consisting the P.M and other Ministers of cabinet rank The proclamation of Emergency must be laid before each house of the parliament and it shall cease to be in operation at the expiration of one month unless before the expiry of one month, it has been approved by resolution of both houses of parliament with special majority. (2) State Emergency: - Article-356 says that If the president, on receipt of a report from the Governor of a state or otherwise is satisfied that a situation has arisen in which the Government of the state cannot be carried on in accordance with the provisions of the constitution, he may issue a proclamation. By that proclamation (1) (2) (3) The president may assume to himself all or any of the powers vested in or exercisable by the Governor to anybody or authority in the state. The president may declare that the powers of the legislature of the state shall be exercised by or under the authority of parliament. The president may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of proclamation. The proclamation issued under Article-356 (1) may be revoked or varied by the president by a subsequent proclamation. In State of Rajasthan Vs UOI AIR 1977 the S.C held that the word satisfaction in Art-356 (1) does not mean the personal satisfaction of the president, but it is the satisfaction of the cabinet. The satisfaction of the president can however be challenged on two grounds that (1) It has been exercised malafidely. (2) It is based on wholly extraneous and irrelevant grounds, because in that case, it would be satisfaction of the president.
In S.R. Bommai Vs UOI, AIR 1994 the Apex Court has held that the proclamation issued U/A-356 is not wholly outside the part of judicial scrutiny and the Court can examine whether the reasons disclosed for issuing proclamation have rational nexus with the satisfaction reached under Article 356. In this landmark Judgment the Supreme Court has issued the guidelines for imposing Presidents rule. Article 356 (3) says A proclamation issued under Article 356 shall be laid before each House of parliament and shall remain in operation for two months unless before the expiry of that period, it has been approved by both Houses of parliament. In the State of Rajasthan Vs UOI AIR, 1977 the S.C held that the Court could undertake judicial review of presidential proclamation if allegation of malafide exercise of power were made in the petition. The majority held that simply because a political party had overwhe lming majority at the centre, it could not advice the president U/Art-356 to dissolve the Assemblies of opposition ruled states. Regarding Art- 74 (2) of the constitution which bars an enquiry in to the question whether any or what advice was given by the council of Ministers to the president, the majority held that it does not, bar the Court to call upon the Union Govt. to disclose to the Court the material upon which the president had formed the requisite satisfaction. On article 356 a very important leading case is Rameshwar Prasad Vs UOI, AIR 2006 in context of president rule in Bihar in which the Apex court has condemned the role of the then Governor of Bihar who have acted as an agent of central govt. in dissolving the Govt. of Bihar. (3) Financial Emergency:- Article 360 provides that if the president is satisfied that situation has arisen whereby the financial stability or credit of India or part of the territory thereof is threatened, he may by a proclamation make a declaration to that effect. During the period when such proclamation is in operation the executive authority of the union shall extend to the giving direction to any state to observe such cannons of financial propriety as may be specified in
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the directions and be deemed necessary by the president for maintaining financial stability and the credit of the state. Any such direction may include a provision for the reduction of salaries and allowances of all or any class of persons serving in a state, including the judges of the Supreme Court and High Courts. It may also require that all money or Financial Bills are to be reserved for the consideration of the president after they are passed by the legislature of the state. The duration of a proclamation of financial emergency will be in operation for two months and unless approved by, both houses of Parliament it shall cease to operate at the expiry of two months period. Q. 20- Clemency power not unbridled. Comment. Ans The power of the sovereign to grant remission is within its executive domain and this responsibility was cast upon executive through the constitutional mandate to ensure fulfillment of some public purpose by grant of remission in appropriate cases. The power under Article 72 and 161 of the constitution was never intended to be used or utilized by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way wipe out conviction. It is a power, which the sovereign exercises against its own judicial mandate. The act of remission of the state does not undo what has been done judicially. The punishment awarded through a judgment is not over ruled but the convict gets the benefit of a liberalized policy of state pardon. In Maru Ram Vs UOI, (1981) 1 SCC 107, it has been held that in exercising the pardoning power, the object and the spirit of section 433 A of Cr.P.C must be kept in view. The power of pardon is exercised by the president on the advice of the council of the Ministers. In K.M. Nanawati Vs State of Bombay AIR 1962 SC 112 the S.C has held that the Governors power to suspen d sentence U/Art-161 is subject to rules made by the Supreme Court under Art- 145 for disposal of pending appeals before it. Once the appeal is filed in the Court the Governor cannot exercise his power of suspension of sentence under Art-161 and if he does so,
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his order would be invalid being in conflict with the Supreme Court rules under Article 145. In Sher Singh Vs State of Punjab AIR 1983 SC 361 while disposing of a writ petition for the commutation of death sentence into life imprisonment on the ground of inordinate delay the Court took an opportunity to impress upon the Central Govt and State Govts that mercy petitions filed under Arts-72 and 161 of the constitution or U/Ss 432 and 433 Cr.P.C must be deposed of expeditiously. The then Chief Justice Chandra Chud in this case observed that A self imposed rule should be followed by the executive authorities vigorously, that every such petition shall be disposed of within a period of three months from the date when it is received. Long delay in the disposal of these petitions are a serious hurdle in the disposition of justice and indeed, such delay tend to shake the confidence of the people in very system of justice Thus clemency power is not unbridled rather under some sound principles.
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Advisory Jurisdiction U/Art. 143.

(3) (4) (5)

(b) (c) (d)

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