CONSTI 2 MOD 18-24

Question 1

Fundamental Principles of Elections in
India

Answer 1

• every one has a right to take part in their govt
• the will of people shall be basisi of the authority of th egovt
• elections will be held at regular intervals
• universal and equal sufferage
• Equivalent free voting proceduremeansthatone’sabilitytovoteshouldbeunhinderedbyothersinthatelectionsshouldbefreetovoteinlinewith theirviewsratherthanbeforcedorcooercedintovotingforwhatotherswouldlike.Thesecrecyoftheballotisaneasierway oflimitingelectionfraud,whichiswhyitisthemostcommonwayofvoting.

Question 2

anoop baranwale v UOI

Answer 2

appointment of cheif election comissioner and election comissioeners shall be done by
- president of india on basis of advisory committee consisting PM, leader of OPP, CJI
- office is given to them for 6 years until they attain 65 years of age wtv happens first-

Question 3

removal of election comissioner, and its independence

Answer 3

Cheif EC can only be removed per method of removal of judge of supreme court =
he can be removed by the President on the basis of a resolution passed to that effect by
both the Houses of Parliament with a special majority, either on the ground of
proved misbehaviour or incapacity.

 Thus, he does not hold his office until the pleasure of the president, though he
is appointed by him
- election comm. or regional comm shall not removed from office except on reccomendation of CEC
- EC has supoerintence over elections and control of elections of parliament and state legi. president and vp of india

they DO nOT deal with elections to the municiplaities and panchayats in the states.

The service conditions of the chief election commissioner cannot be varied to his
disadvantage after his appointment.

Question 4

functions of ECI

Answer 4

• declare election results
• fix election expense limit and code of conduct
• settle disputes referred by president
• prepare list of valid voters
• ## dividing constitutuences

Question 5

eci as a tribunal?

Answer 5

ECI has power to allocate election symbols, and also adjudicates on recognition of political parties and rival claim etc
Shillong v. W A Sangma– Supreme Court held that ECI is a Tribunal for purposes of Art 136 while deciding controversies- cancellation
of allotted symbol was a quasi judicial function

Question 6

Common Cause- A regd society v. UOI
(1996) 2 SCC 752

Answer 6

Discussed about money power in the elections
 So the people should know about the source of expenditure incurred by
political parties
 Through this Article suitable directions can be given by ECI to bring in
Transparency, accountability and fairness in the election process and maintain
the purity of elections

Question 7

PUBLIC INTEREST FOUNDATION v. UNION OF INDIA

Answer 7

e SC has repeatedly expressed concern about the purity of legislatures.
* In 2002, it made it obligatory for all candidates to file an affidavit before the returning officer,
disclosing criminal cases pending against them.
* The famous order to introduce NOTA was intended to make political parties think before giving
tickets to the tainted.
* In its landmark judgment of March 2014, the SC accepted the urgent need for cleansing politics
of criminalisation and directed all subordinate courts to decide on cases involving legislators
within a year, or give reasons for not doing so to the chief justice of the high court.
* The Supreme Court in an order favoured the creation of special courts for expediting criminal
cases involving politicians.

//
CONTEMPT OF COURT - parties were “circumventing” the 2018 judgment by
publishing the details of their candidates’ criminal background in “obscure
and limited circulation newspapers” and “making the webpages on their
websites difficult to access”

Question 8

fiscal federalism

Answer 8

The main source of income for the Union are direct taxes, mainly income tax. However, they are also entitled to collect various other taxes such as customs and corporate tax– taxes other than agricultural income, excise duties, customs and corporation tax

States normally derive their income from indirect
taxes, most commonly from sales tax. Besides this, State List also includes land revenue, excise on alcoholic liquor, estate duty, tax on vehicles and more.

1. Taxes levied by the Centre but Collected and Appropriated by the States
2. Service Tax levied by the Centre but collected and appropriated by the Centre and the State
3. Taxes levied and collected by the Centre but assigned to the States
4. Taxes levied and collected by the Centre but Distributed b/w Centre and the State
5. Surcharge on certain Taxes and Duties for purpose of the Centre
6. Taxes levied and collected and retained by the State

Question 9

recent changes to fiscal federalism

Answer 9

Since 2015-2016, three landmark changes include:
The abolition of the Planning Commission in January 2015 and the subsequent creation of the NITI Aayog;
2. Fundamental changes in the system of revenue transfers from the centre to the states through the
provision of higher tax devolution to the states based on the recommendations of the Fourteenth Finance
Commission (henceforth, “14th FC”); and
3. The Constitutional amendment to introduce the Goods and Services Tax (henceforth, GST) and the
establishment of the GST Council for the central and state governments to deliberate and jointly take
decisions

Question 10

Issues Under the Current Fiscal
Federalism Structur

Answer 10

Horizontal Imbalances
* Replacement
of the Planning Commission with the NITI Aayog- This move has reduced the policy outreach of the government as they now solely
rely on the finance commission, which
in turn, leads to a serious problem of
increasing regional and sub-regional
inequities
* Leading to increase in horizontal
imbalances because of the differing
levels of attainment by the states,
resulting from the differential growth
rates and their developmental status in
terms of the state of social or infrastructure capital

Vertical Imbalances
* Vertical imbalance arises due to the fiscal
asymmetry in powers of taxation vested with
the different levels of government in relation
to their expenditure prescribed by the constitution.
* In India’s fiscal federalism, the central
government has a far greater domain of
taxation Central Government collects around
60% of the total taxes, while its expenditure
responsibility is only 40% of the total public
expenditure.
* Such vertical imbalances are even sharper in
the case of the third tier consisting of elected
local bodies and panchayats.
* Vertical imbalances can adversely affect
India’s urbanization, the quality of local public
goods and thus further aggravating the
negative externalities for the environment and
climate change

Question 11

finance commission

Answer 11

Finance
Commission as a quasi judicial body
* It is constituted by President of India every 5th
year
* The Finance Commission is a constitutional
body, that determines the method and formula
for distributing the tax proceeds between the
Centre and states, and among the states as per
the constitutional arrangement and present
requirements.

the Chairman of the
Commission is selected from among persons who have had experience in
public affairs, and the four other members are selected from among
persons who:
1. are, or have been, or are qualified to be appointed as Judges of a High Court; or
2. have special knowledge of the finances and accounts of Government; or
3. have hadwideexperience in financial matters and in administration; or
4. have special knowledge of economics
-

Question 12

function and power of finance comm

Answer 12

The Finance Commission has the following functions or duties:
The Commission makes recommendations to the President of India on the distribution of tax proceeds between the Union and the States and
the share of each state.
The Commission also decides the principles that govern the payment of grants-in-aid to states from the Consolidated Fund of India.
The measures needed to augment State Consolidated Fund to supplement resources of Panchayat & Municipalities on basis of St. Fin Com
The President of India can also refer any other matter to the Finance Commission in the interest of building a sound financial system

POWERS:
it has all the powers of a civil court
* To summon witness, requiring production of
any document
* Requiring furnishing of information which Fin
Com regards as useful and imp

are the reccs BINDING?
The commission in theory is an advisory body and its recommendations are NOT
binding on the Central Govt.
The report given by the Finance Commission to the president cannot be challenged in court. It is not under the ambit of judicial review

Question 13

DOCTRINE OF PLEASURE

Answer 13

In England the normal rule is that civil servant of Crown holds his office during the pleasure of
the Crown. This means that his services can be terminated at any time by the crown, without
assigning any reason.

Even if there is a contract of employment between the crown and the employee, the crown is
not bound by it.- based on public policy

========
Art 310 incorporates the common law doctrine of pleasure expressly making people who are
members of defence service/civil service of union or state hold office during pleasure of the
President or Governor, respectively.

Art 310 is subject to certain restrictions stated under Art 311.

CONSTITUTIONAL SAFEGUARDS TO
CIVIL SERVANTS (Art. 311)

No removal by subordinate authority AND
Reasonable opportunity to defend at both inquiry and punishment stage.

xceptions to Art 311/Exclusion of Natural Justice:

i) Where a person is dismissed/reduced in rank on ground of misconduct.

ii) Where it is impracticable to give civil servant an opportunity to defend himself.

iii) Where it is in interest of the security of state to not give such an opportunity to the civil
servant

Case- UOI v Tulsiram Patel

UOI v Tulsiram Patel (1985) 3 SCC 398

Question 14

EMINENT DOMAIN
(Art. 300 A)

Answer 14

‘Eminenes Dominium’ which was
introduced in the 17th century.

Eminent domain is the right of the Central or State Government to acquire private property for
public purpose. It is the absolute power over the land within its territory.

In India, the Constitution guarantees the citizens the right to acquire, hold and dispose of
property which is also a fundamental right of the citizens in the country.
under the concurrent list = both state and union can make laws abt aquisition of property. The use of
eminent domain power for land acquisition is also justified when the public purpose in
question can be served by only a specific piece of land, which has no substitute.

Question 15

Indore Development Authority v. Manoharlal

Answer 15

central question in this case revolved around whether the deposit of compensation by the government in the government treasury could be considered as “paid” and deals with the lapsing of land acquisition proceedings if possession has not been taken or compensation has not been paid to the landowner.
a three-judge bench in the Pune Municipal Corporation case held that if landowners were unwilling to accept compensation, the same had to be deposited in court. Mere deposit of compensation in the treasury could not be regarded as payment = but then this case clarified that
depositing compensation in the treasury could indeed be considered as payment to the landowner, thus saving the proceedings under the 1894 Act from lapsing.

Question 16

SUING THE STATE IN CONTRACT

Answer 16

The ability of the federal and state governments to engage in any trade or company, keep
and sell property, and enter into agreements for whatever reason is expressly stated in
Article 298 of the Constitution. It is the union’s and the state’s executive authority.
The government contract must be in writing because the word “assurance of property”
used in clause 1 of Art 299 mean that any document of conveyance or the legal evidence
of transfer of property. Hence for the purposes of Article 299, a verbal agreement between
the government and the other party is void.

Question 17

B. K. Mondal v Bengal

Answer 17

There was no existence of any contract as according to S.175 (3) of the GoI Act for the officers who requested the respondents to carry out the constructions were not authorized to make such requests as under the province of West Bengal as such requests weren’t followed by a contract executed in the name of the de jure head, that is, the governor.

There was no contract formed
between the two parties because of the reason that the contract may have been established by
only the authorities in this situation, but these officers did not have the authority of the
Government to request the respondent to contract. The respondent can surely claim
reimbursement under S.70 as all the three requisites of this section are fulfilled as those were
lawful constructions as per the request of the officers, the respondent obviously did not
construct gratuitously and those constructions were promptly put to use by the government.

Question 18

Nagendra Rao v State of A. P.

Answer 18

carried on a business in fertiliser and foodgrains under licence issued by the appropriate authorities.Essential Commodities Act, 1955 Act directed the fertiliser to be placed in the custody of Assistant Agricultural
Officer for distribution to needy and the foodgrains and non- essential goods in the custody of Tehsildar for
disposing it off immediately and depositing the sale proceeds in the Treasury.

The issue under consideration in this case was Whether the seizure of the goods in exercise of statutory
powers under the said Act immunises the State, completely, from any loss or damage suffered by the owner.

The court held that barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional
Government, the State cannot claim any immunity. The act of seizure of goods for the public interests is under the welfare state functions and not under the primary functions.

The first part of Art 300 prescribes the way in which suits and proceedings by or against
the govt may be instituted. It enacts that the govt of India may sue and be sued by the
name of the Union of India, a state may sue and be sued in the name of State.

The question which arise is the extent of vicarious liability of govt for the tortious acts
of its employees acting in the course of their employment?

Question 19

original jurisdiction of SC

Answer 19

og juris for:
■ Any dispute between Government of India and one or more state
■ Any dispute between Government of India any any state or state on one side
and more other states on the other
■ Any disputes between two or more states.

ALSO POWER TO PUNISH FOR CONTEPT OF COURT
president may refer disputes to SC
Art. 262: Parliament may provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control in any interstate
river or river valey. Parliament may further provide tat neither SC or any
other court exercise jurisdction in respect to any such dispute or complaint.

State of Bihar v. UOI, 1970: apart from the 3 matters mentioned above, the
following 3 matters also appear to be excluded from original jurisdiction of
SC and vested in other tribunals of Const.
● Matters referred to the finance commissio- Art 280
● Adjustment of certain expenses between union and state. Art 290
● Reference to SC under article 143(2) red with proviso of Art.131

Question 20

appellate Jurisdction in constitutional matter

Answer 20

SC has the power to hear appeals which involve interpretation of constitution and
it is imperial whether such appeal relate to civil, criminal or other proceedings

Article 132 (Appeals from HC in constitutional cases) = if the HC certifies that the case
ivolves a substantial question of law as to the interpretation of Constitution = The minum number of judges who must sit for the purpose of
deciding any case involving a substantial question of law as to the interpretation of
constitution is

State of J&K v. Ganga- Word “substantial” occuring in the expression “substantial question
of law” does not necessarily mean a question of general importance but also coverse a case
where there is a difference of opinion betwee various HCs.

Follwing can said to be instances of substantial question of law
○ Suit challenging a statute to be ultra vires/inconsitent with the mandatory provision
of constitution
○ Conviction is challenged to be ultra vieres
○ A queston on whether a law or exectuibve order contravenes any fundamental right
● Follwin have held not to involve a question as to interpretation of constitution
○ A question as to whether an act has been correctly applied to the facts of a case
○ A question whether reasonable opporutnity has been given under Art. 311(2)

Question 21

appeal to HC for civil and criminal matters

Answer 21

civil
It will be seen that for the purposes of article 133, it is not a mere question of law
but a substantial question of law that is required for the purpose of certified.
■ In other words it must be such that there may be some doubt or difference
of opinion in the matter
○ Article 133(3)
■ Unless parliament by law otherwise provide, no appeal can lie to the SC
from judgement, decree or final order of one judge of HC.

CRIMINAL
if the HC:
■ Has, on appeal reversed an order of acquittal of an accused person and
sentenced him to death or
■ Has withdrawn for trial before itself any case from any court subordinate to
its authority and has, in such trail, convicted the accused person and
sentenced him to death
■ Certifies that the case is a fit one for appeal to the SC.

Question 22

Special Leave Petition

Answer 22

grant special leav to appeal

M/s Varity Emporium v. Mohd. Ibrahim Naina, 1985 SC-
○ if the appellant shows that the concurrent diecision of 2 or three lower courts are
manifestly unjust, it is not only the right of the SC but also its duty to remedy the
injustice.
○ Injustice should not be perpetuated just because it has been done two or threee times
in the same case
● Dhakeswari Cotton Mills Ltd. v. CIT West Bengal
○ It is jurisdiction vested in this court by Art. It being an exepctional and overriding
power, naturally, it has be exercised sparingly and with caution and only in special
and extraordinary situations.

Question 23

JURISDICTION OF HIGH COURT

Answer 23

The original jurisdiction of a High Court allows it to adjudicate cases at the first instance. Original
jurisdiction of a High Court subsists in the following matters:
1. Enforcement of fundamental rights (Issuance of writs)
2. Disputes related to marriage, divorce, guardianship, contempt of court, etc.
3. Disputes related to election of MP’s and MLA’s
4. Disputes involving a question of law
b. Writ [Article 226]

Question 24

UMAJI KESHAO MESHRAM AND ORS. VS. SMT. RADHIKABAI

Answer 24

The first and foremost difference between the two articles is that Proceedings under Article
226 are in exercise of the original jurisdiction of the High Court while proceedings under
Article 227 of the Constitution are not original but only supervisory.
b. The court further observed that power under Article 227 shall be exercised only in cases
occasioning grave injustice or failure of justice such as when:
1. The court or tribunal has assumed a jurisdiction which it does not have
2. The court or tribunal has failed to exercise a jurisdiction which it does have, such failure
occasioning a failure of justice, and
3. The jurisdiction though available is being exercised in a manner which tantamount to
overstepping the limits of jurisdiction.

Question 25

SURYA DEVI RAI VS. RAM CHANDER RAI

Answer 25

rit of certiorari is an exercise of its original jurisdiction (Article 226) by the
High Court; exercise of supervisory jurisdiction (Article 227) is not an original
jurisdiction and in this regard, it is akin to appellate revisional or corrective jurisdiction.
b. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent
up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise
its jurisdiction, may simply annul or quash the proceedings and then do no more (Art 226).

Question 26

qualifications for HC

Answer 26

Must be Citizen of India.

Must have held judicial office for at least 10 yrs in Indian territory.

Must have been an advocate of a HC or 2 or more such courts in

Additional judge and acting judge (Art 224)- President may
appoint them for max period of 2 yrs.

Ad hoc judges (Art 224A)- CJ of HC to request with President’s
consent a retired judge of HC to sit and act as a judge.

Question 27

Difference between Art 226 and 136

Answer 27

Article 136: Special Leave Petition (SLP) to Supreme Court

Appeal Mechanism: Article 136 provides a route to appeal against a High Court order (including writ petitions filed under Article 226) in the Supreme Court of India. This is achieved through a Special Leave Petition (SLP).

Discretionary Power: Unlike Article 32, which grants a direct right to approach the Supreme Court for fundamental rights violations, filing an SLP is not guaranteed. The Supreme Court has the discretion to decide whether or not to admit the SLP based on its merits and national importance.

Grounds for SLP: Generally, the Supreme Court will only accept SLPs if they involve:

Substantial questions of law with far-reaching implications.
Issues concerning the interpretation of the Constitution.
Situations where a High Court has made a grave error of law.

Under Art 136 SC hears appeal from courts and tribunal but not
against any administrative authority but under Art 226 a HC can
issue writ against judicial or administrative authority.

Art 136 confers appellate jurisdiction on SC whereas 226 confers
only writ jurisdiction. Making power under Art 136 broader than
under Art 226.

Question 28

Difference b/w art 32 and 226

Answer 28

Difference b/w art 32 and 226

Article 32: Right to Constitutional Remedies

Essence: This article guarantees the fundamental right to enforce other fundamental rights through a mechanism known as a writ petition.
Who can file: Any individual whose fundamental right is infringed can directly petition the Supreme Court of India for enforcement.
Remedies: The Supreme Court can issue various writs,

Article 226: Power of High Courts to issue writs

Essence: This article empowers High Courts of each state and the High Court of Delhi to issue the same writs
Art 32 is fundamental right and Art 226 is a constitutional right.

Discretionary Power: Unlike Article 32, the power of High Courts under Article 226 is discretionary. This means the High Court has the discretion to decide whether or not to entertain a writ petition based on the merits of the case.

Art 32 cannot be suspended during emergency but art 226 can be
suspended during emergency.

Art 32 can be used only for violation of FR but Art 226 can be used
for enforcement of FR as well as legal rights.

Question 29

Supervisory jurisdiction of HC

Answer 29

General superintendence
(art 227)- This power of superintendence and control over subordinate courts
and tribunals is both administrative and judicial in nature.
This power of superintendence can be exercised Suo motu. Cannot be limited by any act of state legislature. HC can nullify the decisions of sub courts and tribunals and issue further directions in the
matter, HC interferes if substantial portion of evidence relied upon by
lower courts is found inadmissible or of no evidentiary value.

Power to transfer cases
Art 233-237 regulate organization and ensure independence of
subordinate judges.
Appt of district judges, = judges other than district judges to
state judiciary service made by the governor in consultation with
the PSC and HC.

Control over subordinate courts

Question 30

subordinate court jurisdiction and apptment

Answer 30

The district judge is the highest judicial authority in the district.
b. He possesses original and appellate jurisdiction in both civil as well as criminal matters.
c. When he deals with civil cases, he is known as the district judge and when he hears the
criminal cases, he is called as the sessions judge
d. The session’s judge could impose life imprisonment as well as capital punishment on a
convicted felon.
e. However, such a sentence should be confirmed by the High Court

…
Any appointments and promotion of the district judges of any state are made by the State
Governor in consultation with the High Court.
b. A person who has not been in the service of the state for at least seven years has to be
recommended by the High Court for appointment as a District Judge.