Jane - Lecture Notes For Constitutional Governance
Jane - Lecture Notes For Constitutional Governance
LECTURE - 1
Prerogative writs were used in England by the King against officers to compel them to exercise
their functions or to prevent them from abusing their powers. These writs were used to
administer justice in the public law.
Habeus Corpus bring the body the oldest writ. It is to secure the release of a person
who has been unlawfully detained
Mandamus It is a hard-and fast writ. To require a public authority to perform a duty
owed by law and to public
Prohibition To prevent the inferior courts from exceeding jurisdiction
Certiorari To quash the order given by the court or tribunal without jurisdiction
Quo Warranto To find the authority of the official
When it was applied in India, the courts were given larger powers by the addition of the reliefs
that are in nature of these writs. Difference between India and England is that :-
The writ jurisdiction is exercised under Article 226 and 32. The purpose of the writ jurisdiction
under 226 is 1) enforcement of the FRs and 2) any other purpose.
Any other Purpose : The difference between the Article 226 and 32 lies here. Any other purpose
implies the enforcement of any legal right. Here, the powers of the High Court are broad.
The powers of the court shall be discretionary while enforcing the legal rights.
In Sohanlal v. Union of India, the court held that if evidence is required to be taken
regarding the legal rights in question, then, the case maybe sent back to the ordinary
jurisdiction.
Zee telefilms ltd. v. UOI, AIR 2005 SC 2677 The court held that BCCI cannot be held as a State
under Article 32 as it was not financially, functionally or administratively dominated by or under
the control of the Government so as to bring it within the expression State.
But, the test under Article 226 is wider and the court looks at the nature of duties and
functions of an organization.
In BCCI v. Union of India The question of BCCIs jurisdiction under Article 226 was raised
since it was a Private body. The court looked at the nature of duties and functions which the
BCCI performs. It is common ground that the respondent-Board has a complete sway over the
game of cricket in this country. It regulates and controls the game to the exclusion of all others.
Hence,
Article 32 is a fundamental right in itself. Hence, it imposes a duty on the Supreme Court to
guarantee the fundamental rights.
as it does not allow enforcement of other legal rights under its jurisdiction.
Further, it can be only enforced against the State as defined under Article 12.
LECTURE NO. 2
Judicial Review, does not examine the decision. Rather, it examines the illegality, irrationality
and impropriety of the decision making process itself.
Legislative Matters
Executive Matters :-
The jurisdiction under the Article is exclusive and self-contained. It neither names the
proceeding under it as a suit and nor does it uses the normal terminologies like cause of
action etc. Instead, it includes terminologies like disputes.
In order to invoke the original jurisdiction, two conditions must be satisfied
1) Parties and
Nevertheless, it is in the executive capacity of the Government that the State/s or Union
can come under this Article.
In the case of State of Mysore v. UOI, AIR 1968 Mys 237, UOI v. State of Mysore, AIR 1977 SC
127, the dispute was regarding the excisability of the goods manufactured in the States
Implements Factory.
The Supreme Court held that the Union of India was made a party to the writ petition merely
because it had dismissed the revision application (under the authority of the Tribunal) of the
State Government. An indirect interest in the collection of the revenue in the form of excise
duty is far too slender a foundation for the postulate that in every controversy arising under the
provisions of the Central Excise Act, the Central Government is necessarily a disputant.
Parties should only be constitutent units of federation. Hence, where private parties are
involved, the case shall be rejected
In the case of Tashi Delek Gaming Solutions Ltd. v. State of Karnataka (lottery), the States of
Sikkim and Meghalaya filed under Article 131 against State of Karnataka for banning online and
internet lotteries. They, along with the lottery agents, also maintained separate writ petitions
against State of Karanataka. Court held that the lottery agents had a separate independent cause
of action and had a legal right to maintain writ application. Hence, a suit in terms of Article
131 is not maintainable.
In the case of State of Bihar v. UOI, AIR 1970 SC 1446, the State of Bihar filed a number of
suits against Union of India, Hindustan Steel Ltd. and Indian Iron & Steel Co. Ltd. under Art.
131 in connection with the delayed delivery of iron and steel materials for its Gandak
project. The specification of the parties in Art.131 is not of the inclusive kind. The express words
in cls. (a), (b) and (c) of the Article exclude the idea of a private citizen, a firm or a corporation
figuring as a disputant.
The Government shall not be engaged in the dispute in its commercial or contractual
capacity.
In Union of India v. State of Rajasthan, The respondent, filed a suit in the court of the District
Judge, Balotra against Union of India, and the Railway Administration claiming damages for the
loss suffered by it on account of the damage caused to the goods transported by rail. The
District Court rejected the petition by holding maintainability under Article 131. The Supreme
Court held that where parties act in commercial capacity, the article 131 shall not be attracted.
Thus, the terms Union or State shall represent the interests of the people of its respective
territories. Hence, held that the petition is maintainable in District Court.
In State Of Rajasthan & Ors. Etc. Etc v. Union Of India 1977 AIR SC 1361, it was argued that
the usage of the term State, unlike Government of India excludes a dispute of the State
Government body with other State/s or Union from the purview. But, the majority held that
Government of India refers to UOI. Seervai, in fact, disagrees with this reasoning. He opines that
Govt. of India is a drafting error and reliance must be placed on legislative history. UOI v.
State of Rajasthan, AIR 1984 SC 1675.
Exclusion of Political Disputes - As Seervai had opined, the very term If and in so far as
the disputelegal right implies that the makers wanted to exclude political disputes.
Violation of Legal Right is not Required. Under this jurisdiction, the SC can allow only a
dispute on which the existence or extent of a legal right shall depend. It does not say
that the legal right should be violated.
In United Provinces v. Governor General, AIR 1939 FC 58, the question was regarding whether
there was a legal right for the Provinces to recover fines from the Governor General in Council.
The court held that the nature of the right must be legally recognized and protected (by rule of
law) and it is not necessary to be enforceable in the court. Hence, also includes equitable rights.
LECTURE NO. 3
In State of J&K v. Ganga Singh, AIR 1960 SC 356, it was held that the principle
underlying the article is that the final authority of interpreting the constitution must rest
with the Supreme Court. Hence, it is freed from limitation which are imposed on the
other Articles from 133-135.
The appeal can be raised from a judgment, decree, final order or other proceeding. The
test to determine a final order is whether the order finally disposes of the rights of the
parties.
Other proceeding was added to the language of Section 205(1) of the Government of
India Act, 1935 to widen the ambit above the civil and criminal jurisdictions. Eg.
Revenue proceedings.
The test to determine the substantial question was provided in Sir Chunilal Mehta & Sons Ltd. v.
The Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314.
Civil Proceeding any suit enough to cover any proceedings of a civil nature. It is on the
infringement of civil rights and imposes civil penalties like compensation, damages etc:.
Now, there are two tests :- 1) substantial question of law of general importance and
This amendment excluded the matters of private importance. Also, the clause (c) prior to
amendment was very wide in terms of ambit.
Clause (3).
LECTURE NO. 4
Difference with the above provisions is that for clauses (a) (b), there is no discretion
with the HC while granting the certificate of appeal.
In Siddeshwar v. State of UP, the court interpreted Clause (c) and held that certificate
shall be granted only for exceptional and special circumstances or where there is a
substantial question of law.
Tests :- Allowed only during manifest injustice or substantial question of public importance.
ARTICLE 137 & CURATIVE PETITION
Nature of the Review power :- although there are no limitations within the article, it
must be used only during exceptional circumstances such as to correct
o grave error
o per incuriam decisions
o miscarriage of justice
In civil cases, as per the XL of the Supreme Court Rules, O47 Rule 1 of CPC applies to
the review petitions.
In criminal cases Order 40 of the Supreme Court provides that the petition should be
allowed only if the error is apparent on the face of the court.
Review petition is to be filed within thirty days from the date of judgment or order and as
far as practicable, it is to be circulated, without oral arguments, to the same Bench of
Judges who delivered the judgment or order sought to be reviewed.
Review is the last means to go for a modification of the judgment.
4) miscarriage of justice.
Procedural Propriety :-
2) A senior advocate must certify to the requirements of the filing of the petition
Who will hear Curative Petition? The judges who had decided the case and three- senior
most judges must consent (in majority) for admitting this petition.
Transfer of Cases
Under Article 139A
Tests : - Invoked where the cases are of substantial and of great importance. It also reduces the
multiplicity of proceedings.
This Article read with Art.144 secures the supreme position of the Supreme Court.
It declares the law for the nation and mandates all the courts to follow it.
But, it has the power to only declare the law not to enact. Hence, it can underline what is
already existing. In Golak Nath v. State of Punjab, AIR 1967 SC 1643, the court held that
It is wider than the words found or made. To declare is to announce an opinion.
Interpretation, ascertainment and evolution are part of this formation of opinion.
Therefore, the obiter dicta is not a final declaration of the law. It is the ratio decidendi
which is the interpretation of legal points of law raised in the dispute accompanied by the
dispute that forms the law of the court.
The lower courts have to mandatorily follow this law unless the ratio doesnt apply to the
case at hand. In case of conflicting decisions, it has to prefer the larger bench.
The doctrine of Stare decisis is not strictly applied. Espectially to the Constitutional
disputes. Following the US Precedents.
Prospective Overruling is an innovation of the court to prevent uncertainty or litigation.
When they are concurring, it is accepted 1) unless expressly denied 2) unless forms a
ratio depending on the law
To be Noted :
o Per incuriam not binding
o Bound by the principle
o If the material facts and issues are not identical, not binding
o Precedent Sub Silentio not binding