Indian Constitutional Law New Challenges Short Notes Set 02

SN17. Write Short Note on Significance of Directive Principles of State policy.

The Sapru Committee in 1945 suggested two categories of individual rights. One being justiciable and the other being non-justiciable rights. The justiciable rights, as we know, are the Fundamental rights, whereas the non-justiciable ones are the Directive Principles of State Policy. Part 4 of the Indian Constitution consists of all the Directive Principles of State Policy. It covers Articles from 36 to 51.

Significance of Directive Principles.

They are an ‘instrument of instructions’ which are enumerated in the Government of India Act, 1935.
They seek to establish economic and social democracy in the country.
They are ideals which are not legally enforceable by the courts for their violation but these are backed by vox populi (voice of the people), which is the real sanction behind every law in reality.
They represent a ‘welfare state,’ rather than a ‘police state,’ which existed throughout the colonial period. They want to achieve economic and social democracy in the country.
They are a broad economic, social, and political policy for a contemporary democratic state.
They constitute a moral code for the State but this does not reduce their value as moral principles are very important and the absence of it may hamper the growth of a society.
They act as a guide for the government which helps them in making policies and laws for the purpose of securing justice and welfare in the State.
They strive to realize the noble principles of justice, liberty, equality, and brotherhood enshrined in the Constitution’s Preamble.
Despite their non-justiciability, the Directive Principles assist courts in assessing and establishing a law’s constitutional viability.
They make it possible for people to measure the worth of a government and its working.
When determining the constitutionality of a law, the Supreme Court has ruled that if the law in question seeks to give effect to a Directive Principle, the court may consider the law to be reasonable’ in relation to Article 14 (equality before the law) or Article 19 (six freedoms) and thus save the law from being declared unconstitutional.
They are in addition to the people’s fundamental rights. They are designed to fill the gap left by Part III by establishing social and economic rights.
Their execution offers a favourable environment for citizens to fully and properly exercise their basic rights. Political democracy is meaningless without economic democracy.
They reflect the ideas and views which were there in the mind of the drafters while drafting the constitution.

Directive Principles provide good foundations for welfare state. It supplemented the Fundamental Rights of the people and built a State characterized by these four pillars – Justice, Liberty, Equality, and Fraternity.

SN25. Short note on – Failure of constitutional Machinery in State- Article 356.

Article 356 of the Constitution of India gives the President of India the power to suspend state government and impose the President’s rule in any state of the country if “if he 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”. India borrowed this provision from Section 93 of the Government of India Act, 1935. This provision faced strict opposition from the freedom struggle leaders then and this forced the British government to suspend it. However, this provision was incorporated in the Constitution for the preservation of democracy, federalism, and stability in the post-independent era. In its 2015 report, Committee noted that since independence, it has been used over 100 times. In almost all cases it was used for political considerations rather than any genuine problem.

Sarkaria Commission headed by Hon’ble Justice R.S. Sarkaria, was appointed in 1983 and spent four years researching reforms to improve Center-State relations and it submitted its report that part of the obscurity surrounding Article 356 was cleared. The Sarkaria Commission recommended extreme rare use of Article 356.

According to the Commission, Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report discourages a literal construction of Article 356(1). The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. The report further recommended that a warning be issued to the errant State, in specific terms that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account.

S.R. Bommai Vs. Union of India Case and Article 356:

S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka between August 13, 1988, and April 21, 1989. His government was dismissed on April 21, 1989, under Article 356 of the Constitution and President’s Rule was imposed, in what was then a most common mode to keep Opposition parties at bay. The dismissal was on grounds that the Bommai government had lost the majority following large-scale defections engineered by several party leaders of the day. Then-Governor P. Venkatasubbaiah refused to give Bommai an opportunity to test his majority in the Assembly despite the latter presenting him with a copy of the resolution passed by the Janata Dal Legislature Party. Bommai went to court against the Governor’s decision to recommend President’s Rule. First, he moved to the Karnataka High Court, which dismissed his writ petition. Then he moved to the Supreme Court.
In the said case, the SC laid down certain guidelines so as to prevent the misuse of Article 356 of the constitution.

The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
The centre should give a warning to the state and a time period of one week to reply.
The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President.
Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e., he shall not dissolve the assembly.
Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
Article 356 shall be used sparingly by the centre; otherwise, it is likely to destroy the constitutional structure between the centre and the states.

SN40. Write Short note on Mandamus.

Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus, the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.

Mandamus is a Latin word, which means “WCommand”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so. The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions. Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, judicial. Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands activity and sets the authority in action.

A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have a real or special interest in the subject matter and must have the legal right to do so.

Mandamus cannot be issued against the following:

a private individual or private body.
if the duty in question is discretionary and not mandatory.
against president or governors of the state
against a working chief justice
to enforce some kind of private contract.

In E.A. Co-operative Society v. Maharastra, A.I.R. 1966 S.C. 1449 case the Court opined that the writ of mandamus can be issued when the government denies to itself a jurisdiction which it undoubtedly has under the law

In Bombay Municipality v. Advance Builders, AIR 1972 SC 793 case, Bombay Municipality had prepared a town planning scheme which had been also approved by the State Government. However, no action was taken for a long time. The Court opined that the writ of mandamus can be issued where an authority vested with a power improperly refuses to exercise it and directed the municipality to implement a planning scheme.

In State of West Bengal v. Nuruddin (1998) 8 SCC 143 case, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.

In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607 case, the court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.

In The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court held that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.

SN41. Distinguish between Prohibition and Certiorari.

There is a fundamental distinction between writs of prohibition and certiorari. They are issued at different stages of proceedings.
The writ of prohibition is available during the pendency of proceedings i.e., when an inferior court takes up a hearing for a matter over which it has no jurisdiction, the person against whom hearing is taken can move the superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings.
The writ of certiorari can be resorted to only after the order or decision has been announced i.e., if the court hears the matter and gives the decision, the party would need to move to superior court to quash the decision/order on the ground of want of jurisdiction.
Both the writs are issued against legal bodies.

SN42. Explain Concept of Locus Standi.

Principle of locus standi states that unless an individual has been directly injured or is aggrieved by the act he is challenging, his action will not be upheld in court. The Latin word locus (plural loci) means “place.” “Locus standi” is Latin for “place to stand” and refers to the legal right to file a lawsuit. It is a party’s ability to show the court that the law or action challenged has a sufficient relation to and damage from it to justify the party’s involvement in the case. The Supreme Court has confirmed that -In essence, the question of locus standi is whether the litigant is entitled to have the court determine the merits of the case or specific issues. In India, the concept of locus standi is mentioned under Order 7 Rule 11 of the civil procedure code, 1908. For instituting any action, the plaintiff or the appellant must prove his locus standi first and the trial will start thereafter. The court can dismiss the entire case, irrespective of its merit if the requirement of locus standi is not fulfilled.

As per order 7 Rule 11 of the Civil procedure code, 1908, there are certain ingredients that a party must follow. These ingredients are as follows –

Presence of Injury: The primary requirement for instituting a suit is that the person must have suffered some injury.
Causation: The term causation means the cause and effect relationship. It means that there shall be a sufficient relationship between the act of one party and the injury suffered by the other party.

A individual whose constitutional or legal right is infringed may seek relief under Article 226 of the Indian Constitution, according to tradition. However, the Supreme Court has recently liberalized the Locus Standi clause. The Court now allows public-spirited individuals to file a writ petition for the protection of every other person’s or class’s constitutional and statutory rights, even though that person or class is unable to claim the High Court’s jurisdiction due to poverty or any other social economic impairment. Article 226 of the Indian Constitution is wider in scope than Article 32. Under article 226, the aggrieved party can approach the High Court for violation of not just their fundamental rights but also legal rights. However, under Article 32 of the Indian Constitution, a person can approach the Supreme court only for Violation of Fundamental Rights.

If socially or economically vulnerable people are unable to protect themselves, a public-spirited individual may use this provision on their behalf. The strict rule of Locus Standi applicable to private litigation is relaxed in public interest litigation, and a broad rule is established by the courts in modern times. Any member of the public acting in good faith and with sufficient interest in bringing a suit for redress of a public wrong or injury, but who is not a mere busybody or a meddlesome interloper, may be granted the right of Locus Standi: Since the primary goal of Interest Litigation is to ensure that the provisions of the Constitution or the law are followed to the fullest extent possible in order to advance the cause of the community, disadvantaged groups and individuals, or the public interest, any person, acting in good faith and with sufficient intercession, is permitted to do so.

SN47. Discuss nature of Directive Principles of State Policy.

Nature of Directive Principles.

They are an ‘instrument of instructions’ which are enumerated in the Government of India Act, 1935.
They seek to establish economic and social democracy in the country.
They are ideals which are not legally enforceable by the courts for their violation but these are backed by vox populi (voice of the people), which is the real sanction behind every law in reality.
They represent a ‘welfare state,’ rather than a ‘police state,’ which existed throughout the colonial period. They want to achieve economic and social democracy in the country.
They are a broad economic, social, and political policy for a contemporary democratic state.
They constitute a moral code for the State but this does not reduce their value as moral principles are very important and the absence of it may hamper the growth of a society.
They act as a guide for the government which helps them in making policies and laws for the purpose of securing justice and welfare in the State.
They strive to realize the noble principles of justice, liberty, equality, and brotherhood enshrined in the Constitution’s Preamble.
Despite their non-justiciability, the Directive Principles assist courts in assessing and establishing a law’s constitutional viability.
They make it possible for people to measure the worth of a government and its working.
When determining the constitutionality of a law, the Supreme Court has ruled that if the law in question seeks to give effect to a Directive Principle, the court may consider the law to be reasonable’ in relation to Article 14 (equality before the law) or Article 19 (six freedoms) and thus save the law from being declared unconstitutional.
They are in addition to the people’s fundamental rights. They are designed to fill the gap left by Part III by establishing social and economic rights.
Their execution offers a favourable environment for citizens to fully and properly exercise their basic rights. Political democracy is meaningless without economic democracy.
They reflect the ideas and views which were there in the mind of the drafters while drafting the constitution.

SN48. Write Short note on quo warranto.

The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? The Writ of Quo-Warranto is the writ which is issued directing subordinate authorities to show under what authority they are holding the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.

The Writ of Quo-Warranto cannot be issued to a person working in a private field. This writ is issued to a person in an office, the legality of which is being questioned.

Conditions for issue of the Writ of Quo-Warranto:

The office must be public and it must be created by a statue or by the constitution itself.
The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.

In University of Mysore v. Govinda Rao, A.I.R. 1965 S.C. 491 case, the Court opined that the writ of quo warranto calls upon the holder of a public office to show to the court under what authority he is holding the office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office to be vacant.

In Amarendra v. Nartendra, A.I.R. 1953 Cal.114. case, the Court held that the writ lies in respect of a public office of a substantive character and not a private office such as membership of a school managing committee.

In Jogendra Nation v. Assam, A.I.R, 1982 Gau.25. case, the nomination by the Governor of members to the state legislative council, appointment of a Chief Minister in a state, nominations or elections to municipal bodies, inter alia have been challenged by way of petitions for quo warranto. The Court held that Quo warranto will not be issued if there is an alternative legal remedy provided by the statute. Thus it will not be a proper remedy to challenge the election of a Chief Minister to the House, as the statutes provides for the remedy of an election petition.

SN49. Write Short note on Habeas corpus:

The writ of Habeas corpus is called a bulwark of individual liberty against arbitrary detention. “Habeas Corpus” is a Latin term which literally means “you may have the body.” Or “produce the body”. This remedy is available in all cases of unlawful detention and violation of personal liberty. The writ is issued to produce the person physically who has been detained, whether in prison or in private custody, before a court. The court then examines the reason for the detention and if there is no legal justification of his detention, he can be set free. Thus, the onus of proof is on the detainer, and the detainer must show proof of authority to do the same. The Supreme Court under article 32 and High Courts under Article 226 of the Constitution can issue this writ.

A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals. Such a writ can be issued in the following example cases:

When the person is detained and not produced before the magistrate within 24 hours
When the person is arrested without any violation of the law.
When a person is arrested under a law which is unconstitutional
When detention is done to harm the person or is malafide.

In A.D.M. Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 case, the petition was filed during the period of emergency and lot of people were detained without any formidable reason. In this case it was observed that the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, then the party is ordered to be released.

In Gopalan v. Government of India, AIR 1950 SCR 88 case, K. Gopalan was a communist leader who was detained in the Madras Jail under Preventive Detention Act, 1950 and he challenged his detention by stating that his civil liberty was being hampered as he had the right to equality of law. He argued that there was a violation of his Fundamental Rights which were Article 19, 21 and 22. He argued that the right to the movement was a fundamental right under article 19. The Supreme Court held that he was detained according to the procedure established by law and rejected his argument. The supreme court at that point of the time believed that each article was separate in the Indian constitution.

Limitations of Habeas Corpus

Judges receive a flood of habeas corpus petitions each year, including some those inmates prepare without the assistance of a lawyer, strict procedures govern which ones are allowed to proceed. Hence a writ of habeas corpus is not available in every situation.
Inmates are generally barred from repetitively filing petitions about the same matter.

SN50. Write Short note on prohibition.

The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try.

A writ of Prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. After the issue of this writ, proceedings in the lower court, etc. come to a stop. A writ of prohibition is normally issued when inferior court or tribunal.

In Brij Khandelwal v. India, A.I.R. 1975 Del.184 case, the Delhi High Court refused to issue prohibition to the Central Government to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against government discharging executive functions and that prohibition is intended to control quasi-judicial and not executive, functions.

But this view is no longer tenable with the expansion of the concept of natural justice, and the emergence of the concept of fairness even in administrative functions, the rigidity about prohibition has also been relaxed. The writ can now be issued to anybody, irrespective of the nature of the function discharged by it if any of the grounds on which the writ is issued is present. Prohibition is now regarded as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights.

Proceeds to act without jurisdiction or in excess of jurisdiction or
Proceeds to act in violation of rules of natural justice or
Proceeds to act under a law which is itself ultra vires or unconstitutional or
Proceeds to act in contravention of fundamental rights.

Writ of prohibition can be issued on the grounds on which the writ of certiorari can be issued except in case of error of law apparent on the face of the record.

Generally, prohibition is an efficacious and speedy remedy where a person does not desire any other relief except to stop the administrative agency. The conditions for the issue of prohibition are the same as those for the issue of certiorari, except as to the stage when the relief is available. It follows that the grounds on which prohibition will issue are the same on which certiorari will issue (if the Petitioner comes to court after the tribunal has already pronounced its decision). Thus, the prohibition will issue to prevent the tribunal from proceeding further, when the inferior court or tribunal proceeds to act without or in excess of jurisdiction and also when the inferior court or tribunal proceeds to act in violation of the rules of natural justice.

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