CONSTITUTIONAL LAW

PART – C

April/May 2022

1. A person was arrested by the police but was not produced before the magistrate within
24 hours. Advise him regarding his rights. (September 2021)

Ans:

Facts of the case :

A person was arrested by police

Issues involved :

Arrested person was not produced before the magistrate within 24 hours.

Reasons & Conclusions :

Under Clause (1) & (2) of Article 22 four rights are guaranteed if a person is arrested for
offence under an ordinary law; (i) The right to be informed “as soon as may be” of ground of
arrest; (ii) The right to consult and to be represented by a lawyer of his own choice; (iii) The
right to be produced before a Magistrate within 24 hours; (iv) The freedom from detention
beyond the said period except by the order of the magistrate. In this instant case the
arrested person was not produced before the magistrate within 24 hours and in D.K. Basu v
State of West Bengal 1997 case guidelines were issued by the Supreme Court.

Hence the arrested person can sue the police either under Article 226 of the Indian
Constitution before the High Court of the concerned State or under Article 32 of the Indian
Constitution before the Supreme Court of India not producing him before the Magistrate
within 24 hours of time.

2. A civil servant was removed from the services as the post which he was working
was abolished. No opportunity was given to him and no enquiry was conducted. he
files a petition for status quo under Article 311. Decide.

Ans:

Facts of the case :

A civil servant was removed from the services as the post which he was working was abolished

Issues involved :

No opportunity was given to him and no enquiry was conducted.

Reasons & Conclusions :

Under Article 311 (1) of the Indian Constitution, no person who is a member of a civil service
of the Union or an all-India service or a civil service of a State or holds a civil post under the
Union or a State shall be dismissed or removed by an authority subordinate to that by which
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he was appointed without conducting an Inquiry. In Nepal Singh Vs State of U.P. 1985, the
Supreme Court held that the removal order was against the spirt of Article 311 of the
Constitution and ordered the State Government to reinstate him.

Accordingly, the Petitioner will succeed in the case.

3. A High Court withdraw a criminal case pending before one of the session courts and
sentenced the accused to death. What are the remedies available to the convicted
persons? (September 2021) (Aug/Sept 2014)

Ans:

Facts of the case :

A High Court withdraw a criminal case pending before one of the session courts and sentenced
the accused to death
Issues involved :

The remedies available to the convicted persons.

Reasons & Conclusions :

Under Article 228 (a) of the Indian Constitution, if the High Court is satisfied that a case
pending in a court subordinate to it involves a substantial question of law as to the
interpretation of the Constitution the determination of which is necessary for the disposal
of the case, it shall withdraw the case and dispose of the case itself.

In this instant case the High Court within its powers conferred under Article 228 (a) of the
Constitution by withdrawing the case and disposing with an order of sentencing the accused
to death. The only remedy left is to file an Appeal Petition before the Supreme Court of India
under Article 134 of the constitution challenging the orders of the High Court.

4. The President of India imposed national emergency on the advice of the Union
Cabinet on the grounds of “internal disturbance”. Is it maintainable? (September
2021)

Ans:

Facts of the case :

The President of India imposed national emergency on the advice of the Union Cabinet on the
grounds of “internal disturbance”

Issues involved :

Maintainable of the orders of the President of India imposed national emergency.

Reasons & Conclusions :

Article 352 provides that if the President is “satisfied” on the grounds that the security of
India is threatened due to outside aggression or armed rebellion, he can issue a proclamation
to that effect regarding the whole of India or a part thereof on the advice of the Union
Cabinet.
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In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial
review of determining the validity of the proclamation of emergency issued by the President
under Article 352(1). The court’s powers are limited only to examining whether the limitations
conferred by the Constitution have been observed or not. It can check if the satisfaction of
President is on valid grounds or not. If the President is satisfied that grounds for national
emergency exist but the same is based on absurd, malafide or irrelevant grounds then it won’t
be considered that the President is ‘satisfied’.

December 2021

5. A poisonous gas leaked from a fertilizer company and caused serious health problems to
nearby residents of the locality. Can they file a Writ Petition?

Ans:

Facts of the case :

A poisonous gas leaked from a fertilizer company caused serious health problems to nearby
residents of the locality
Issues involved :

With the leakage of poisonous gas from a fertiliser company nearby residents of that locality
were affected with serious health problems. The fertiliser company’s negligence in storage,
operation and maintenance of such poisonous gas. Whether such fertiliser Companies, who
requires such poisonous gasses can be continued with in the residential locality, which hinders
fundamental right of right to leave

Reasons & Conclusions :

Right to life to all persons within the territory of India guaranteed under Article 21 of the
Constitution. The negligence of the fertiliser company deprived the rights of the locality
people of the said company.

Hence by invoking Article 32 or 226 of the Constitution for violating the provisions of Article
21 of the Constitution a Writ Petition can be filed before either Supreme Court or High Court
of the concerned State respectively by making Absolute liability of the Company for the such
accident including damages on the grounds of polluter pays principle.

Strict & Absolute liability Case law: M.C. Mehata V. Union of India 1984

polluter pays principle case law: Vellore Citizens Welfare Forum V. Union of India 1996

6. A High Court Judge was alleged to have amassed huge properties and disproportionate to
his known sources of income. What are the options available before the Chief Justice of
that High Court and Chief Justice of Supreme Court? Explain. (May/June 2016)

Ans:

Facts of the case :

A High Court Judge was alleged to have amassed huge properties and disproportionate to his
known sources of income.
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Issues involved :

What are the options available before the Chief Justice of that High Court and Chief Justice
of Supreme Court

Reasons & Conclusions :

Under the provisions of Article 124 (5) of the Indian Constitution, the Parliament have enacted
the Judges (Inquiry) Act, 1968 regulating the procedure for the presentation of an address
and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause.
As per the provisions of Section 3 of the Judges (Inquiry) Act, 1968 on the motion passed by
the Parliament or State legislature the speaker of the house will refer the matter for
investigation by appointing a committee consisting of three members of whom— (a) one shall
be chosen from among the Chief Justice and other Judges of the Supreme Court; (b) one shall
be chosen from among the Chief Justices of the High Courts, and (c) one shall be a person
who is, in the opinion of, the Speaker or, as the case may be, the Chairman, a distinguished
jurist. After completion of the enquiry the enquiry report will be submitted to President
under Article 217 (1) (b) for removal of a Judge of High Court, if the charges are proved.

Either chief Justice of High Court or Supreme Court have no so moto power to initiate action
on the allegations made against Judges, unless either Parliament or State Legislature passes
a motion to that extent. Hence, the concerned Chief Justice can refer the matter to either
Parliament or State Legislature for Judaical Accountability.

7. A Government employee was suspended on the ground of indiscipline. He challenged the

same on the ground that he was not given any notice before such suspension as mandate
under Article 311 of the Constitution. Is his contention correct? Explain.

Ans:

Facts of the case :

A Government employee was suspended on the ground of indiscipline

Issues involved :

A Government employee was not given any notice before such suspension as mandate under
Article 311 of the Constitution

Reasons & Conclusions :

Both Union and State Governments are having Civil Service (Classification, Control and Appeal)
Rules, which were issued under Article 309 of the Constitution. As per the said rules pending
enquiry either Disciplinary Authority or Cadre Control Authorities are having powers of
suspension of the Government employee pending enquiry.

In this instant case, the Government employee was suspended on the ground of indiscipline, if
it is made pending enquiry, there is no fault on part of the Government.

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 8. Refugees from Nepal came to India in lakhs and want to settle. They filed a Writ in
Supreme Court of India under Article 32 of the Indian Constitution that they have a right
to settle in India. Decide.

Ans:

Facts of the case :

Refugees from Nepal came to India in lakhs and want to settle.
Issues involved :

Refugees filed Writ in the Supreme Court of India that they have a right to settle in India
under Article 32 of the Indian Constitution

Meaning of Citizenship? What Does Constitution of India Speaks? Does Nepal Refugees
entitled to get Indian Citizenship?

Reasons & Conclusions : Citizenship means membership of a State as determined by

State Law and a Citizen is a person who enjoys full civil & political rights. Citizenship enjoys
advantages which are conferred by the constitution and on the other hand, aliens and
stateless persons do not enjoy the rights similar to that of citizens. Sri Lanka Refugees are
migrated from the Nation of Nepal and hence Article 6 of the Constitution deals with
Citizenship of such migrants.

Under Art. 6, an immigrant from Pakistan became a citizen of India if he, or either of his
parents, or any of his grandparents, was born in India (as it was prior to the Independence),
and, in addition, fulfilling either of the following two conditions laid in the said Article and
there is no such provision for other refugees for grant of Indian Citizenship.

Hence, the Writ Petition filed before Supreme Court of India is not maintainable under
Article 32 read with provisions of Article 6 of the Constitution.

September 2021

9. A Government employee was dismissed by another officer equal to his rank. Discuss the
validity of such dismissal.

Ans:

Facts of the case :

A Government employee was suspended on the ground of indiscipline
Issues involved :
A Government employee was not given any notice before such suspension as mandate under
Article 311 of the Constitution

Reasons & Conclusions : Both Union and State Governments are having Civil Service
(Classification, Control and Appeal) Rules, which were issued under Article 309 of the
Constitution. In general, as per aforesaid rules, Authorities are empowered to initiate
disciplinary proceedings and can impose certain penalties, if the charges are proved. Other
than the authorities notified have no power to initiate disciplinary proceedings and impose
penalties. In general, the equal rank officers were not conferred with such powers. In some
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cases, the Disciplinary/Appointing Authority may be head of the Department, and some
officers equal to his rank may be working on deputation in other departments, in such cases
head of the Department have no power to conduct disciplinary proceedings and to impose
penalties under Article 309. Hence, in such cases the disciplinary proceedings contemplated
are vested with Government as Disciplinary/Appointing Authority for imposing penalties with
the rank not less than Secretary to the Government of the concerned Ministry.

In such cases Head of the Departments have no power under Article 309, if the instant case
comes under the same category, the dismissal order issued by such officer is unconstitutional
as violative of Article 311.

December 2020

10. A lady of ST category gets married to a person belonging to upper caste and she wants
her children to claim ST reservation. Whether her children has right to claim the same
or not. Advice.

Ans:

Facts of the case :

A lady of ST category gets married to a person belonging to upper caste and she wants her
children to claim ST reservation
Issues involved :

Whether her children has right to claim the same or not

Reasons & Conclusions :

In Rameshbhai Dabhai Naika Vs. State of Gujarat & Others (CIVIL APPEAL NO. 654 OF 2012)
Supreme Court held that the view expressed earlier by the Supreme Court in Valsamma
judgment that in an inter-caste marriage or a marriage between a tribal and a non-tribal the
woman must in all cases take her caste from the husband, as a rule of Constitutional Law is a
proposition, the correctness of which is not free from doubt.

Hence, by default kids inherit father’s caste. Kids born to a SC/ST mother and a general
category father will belong to the father’s caste/category only - i.e., General category, and
that too especially if the kids live with the father. They will not be eligible for the SC/ST
benefits with respect to reservation.

11. The State legislature enacted the Transport Service Act, 1955 by this Act, the State
Government had been authorized to frame schemes of rationalization of motor Transport.
The Union Parliament amended in 1956 the Motor Vehicle Act, 1939 by adding a new
scheme of nationalization of Motor Transport. The two laws occupied the same field.
Which law is to the extent of Repugnancy be void? Give reasonable Answer.

Ans:

Facts of the case :

The State legislature enacted the Transport Service Act, 1955 by this Act, the State
Government had been authorized to frame schemes of rationalization of motor Transport.

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The Union Parliament amended in 1956 the Motor Vehicle Act, 1939 by adding a new scheme
of nationalization of Motor Transport.
Issues involved :

The two laws of the Union and State occupied the same field, which law is to the extent of
Repugnancy be void

Reasons & Conclusions :

The Doctrine of Pith and Substance relates to Article 246 that deals with the three lists
enumerated in the Seventh Schedule of the Indian Constitution. It is used when there is a
question on the competence of the legislature on making a particular enactment under the
three lists. The court for that matter must look into the substance of the enactment. If the
court finds that the law formulated is very much within the substance of the matter assigned
to the framers then the statute is deemed completely valid or as the case may be.

However, while deciding so, if the court finds out that there is an incidental effect of the
application of the statute on another field that is beyond the competence of the legislature,
then such findings must be discarded. The reason being, that it is possible that a particular
statute may incidentally encroach upon a matter beyond the legislature’s competence but such
encroachment doesn't render the whole statute to be a nullity.

The salient features of the Doctrine of Pith and Substance are as given below:

1. It becomes applicable in circumstances when the subject matter of one list is in

conflict with the subject matter of another list.
2. The reason behind its adoption is to avoid any limitation on the powers of legislatures
by declaring every other enactment invalid basis that it encroaches upon another law.
3. It is meant to determine the true nature and character of the subject and decide
under which head of the list it falls.
4. The Doctrine provides a degree of flexibility on the powers of the state to make a
law that involves the subject of Union List.

In this instant case the subject matter pertains to State list subject to provisions of the
entry of 35 list of concurrent subjects. Hence it is very clear that the Union Parliament
amended in 1956 the Motor Vehicle Act, 1939 by adding a new scheme of nationalization of
Motor Transport is valid and the State Transport Service Act, 1955 is void.

12. A was a temporary Government servant. He was given a memorandum containing two charges
against him. He asked to explain why disciplinary action should not be taken against him.
His services were terminated without assigning any reasons. Decide its validity with
reasons.

Ans:

Facts of the case :

A was a temporary Government servant. He was given a memorandum containing two charges
against him. He asked to explain why disciplinary action should not be taken against him.
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Issues involved :

A’s services were terminated without assigning any reasons

Reasons & Conclusions :

Both Union and State Governments are having Civil Service (Classification, Control and Appeal)
Rules, which were issued under Article 309 of the Constitution. In general, as per aforesaid
rules, Authorities are empowered to initiate disciplinary proceedings to impose certain
penalties, if the charges are proved. Other than the authorities notified have no power to
initiate disciplinary proceedings and to impose penalties.

In this instant case definite charges were framed by the disciplinary authority, but without
conducting an enquiry as required under the provisions of Article 309 of the Indian
Constitution A’s services were terminated without assigning any reasons. Which violates the
provisions of Article 311 of the Constitution and unconstitutional.

13. A law was passed by a State prohibiting the sale and possession of liquor in the State. It
was challenged on the grounds that incidentally encroached upon import of liquor across
custom frontier a central subject. Decide.

Ans:

Facts of the case :

A law was passed by a State prohibiting the sale and possession of liquor in the State.

Issues involved :

It was challenged on the grounds that incidentally encroached upon import of liquor across
custom frontier a central subject

Reasons & Conclusions :

In State of Bombay Vs F.N. Balsara (AIR 1951 SC 318), the State of Bombay passed an Act
as The Bombay Liquor Prohibition Act. The petitioner raised objection that the Act
encroaches the Union List, which authorised Union to import liquors, and levy taxes on import
liquors. The State Government contended that it passed the Bombay Liquor Prohibition Act
under the Entry 8 of List II State, which runs “(8) intoxicating liquors that is to say, the
production, manufacture, possession, transport, purchase and sale of intoxicating liquors”

The Supreme Court interpretated the legislation under the Doctrine of Pith and Substance
(Article 246), and opined that the pith and substance of Bombay Liquor Prohibition Act had
fallen under the State List and it did not encroach the import of liquors. It was only incidental.
Therefore, the Act was valid and intra vires.

Aug/Sept 2019

14. The Speaker of Lok Sabha expelled 20 members for receiving money for raising questions
in the house on behalf of vested interests. They challenged the expulsion before the
Supreme Court. Decide.

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Ans:

Facts of the case :

A law was passed by a State prohibiting the sale and possession of liquor in the State.
Issues involved :

It was challenged on the grounds that incidentally encroached upon import of liquor across
custom frontier a central subject

Reasons & Conclusions :

In P.V. Narsimha Rao V. State (1998), it was held by the majority of the Court that under
Article 105(2) the members of the parliament will get immunity and thus, the activity of taking
bribe by the MP’s will get immunity despite anything said by them or any vote given by them
in the Parliament. The Court further explained that the word “anything” here will be
interpreted as a wider term. The Court interpreted the term “anything” in a wider sense and
did not prosecute P.V. Narsimha Rao.

In Kihoto Hollohon V/s Zachilhu the Supreme Court set aside the August 17 order of
Meghalaya Speaker disqualifying 5 members of the House who were members of the coalition
Ministry. The court also set aside the order of the Manipur Speaker disqualifying some
members of the house on the ground of the defection and struck down para 7 of the anti-
defection law which provided that the speaker decision regarding the disqualification would
be final and no court could examine its validity.

Hence, expelled member of Lok Sabha rightly challenged the decision of the Speaker.

15. A State Government issued several ordinances continuously on the same subject without
introducing a regular Bill in the State Legislature. Decide the constitutional validity of
such practice.

A State Government issued successful ordinances on the same subject, on the advice of
the Cabinet and after the lapse of each ordinance. The State Government did not introduce
any Bill to replace such ordinance. Decide its validity. (Sept/Oct 2017)

Ans:

Facts of the case :

A State Government issued several ordinances continuously on the same subject without
introducing a regular Bill in the State Legislature.
Issues involved :

Constitutional validity of issuing ordinances continuously on the same subject without

introducing a regular Bill in the State Legislature

Reasons & Conclusions :

Article 213 of the Constitution provides power of Governor to promulgate ordinances when
House is not in session duly considering necessity of promulgate ordinances and such Bills shall
be passed immediately after the House in session.
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In D C Wadhwa v. State of Bihar, the Petitioner a professor who carried & detailed
research in the matter challenged the practice of State of Bihar in promulgating and re-
promulgating ordinances on a large scale without enacting them into Acts of the legislature
and keeping them alive for indefinite period of time. The five Judge Bench of the Court held
that such practice was a “subversion of the democratic process” and “colourable exercises of
power and amounted to fraud upon the Constitution, and therefore unconstitutional”.

16. A state has issues with its neighbouring state regarding the sharing of the waters of a
river flowing across both the States. What is the constitutional mechanism to resolve the
said dispute. Explain.

Ans:

Facts of the case :

A state has issues with its neighbouring state regarding the sharing of the waters of a river
flowing across both the States.
Issues involved :

constitutional mechanism to resolve the interstate water disputes.

Reasons & Conclusions :

Article 262 of the Constitution provides mechanism to resolve the interstate water disputes
and gives Parliament the right to regulate intergovernmental dispute resolution in river
waters, as well as the right to prohibit the Supreme Court and other courts from deciding on
such matters. Accordingly, the Parliament have passed Inter State River Water Dispute Act,
1956.

The Inter State River Water Dispute Act, 1956 Water Disputes was adopted pursuant to
Article 262 of the Constitution. The Union Government plays a very important role in the law.
Article 4(1) of the Act, which is empowered to establish a water court (Inter State Water
Tribunals) to challenge water law on the basis of a county Government.

17. All the 150 public servants working in a Government department were dismissed from
service, as most of them participated Dharna Cum Gherao Programme. No inquiry was
conducted on the ground of impracticability. Discuss the validity of such dismissal.

Ans:

Facts of the case :

All the 150 public servants working in a Government department were dismissed from service,
as most of them participated Dharna Cum Gherao Programme.
Issues involved :

No inquiry was conducted on the ground of impracticability. Discuss the validity of such
dismissal.

Reasons & Conclusions : Both Union and State Governments are having Civil Service
(Classification, Control and Appeal) Rules, which were issued under Article 309 of the
Constitution. In general, as per aforesaid rules, Authorities are empowered to initiate
10
disciplinary proceedings to impose certain penalties, if the charges are proved. Other than
the authorities notified have no power to initiate disciplinary proceedings and to impose
penalties.

In this instant case without initiating disciplinary proceedings the Government dismissed 150
public servants, which is violative of provisions of Article 311 of the Constitution.

Aug/Sept 2018

18. A public servant failed to discharge his duties as imposed under law. Explain the
appropriate constitutional remedy.
A public servant failed to discharge his duties as imposed under a law. Explain the
appropriate Constitutional remedy. (Aug/Sept 2014)

Ans:

Facts of the case :

A public servant failed to discharge his duties as imposed under law.

Issues involved :

appropriate constitutional remedy.

Reasons & Conclusions :

Whenever a public authority failed to discharge his duties as imposed under law, the
constitutional remedy to file a Writ of Mandamus under Article 32 of the Constitution before
Supreme Court or under Article 226 before the High Court. The Writ of Mandamus can be
granted against the Public Authority only.

19. The Telangana State Government passed a law that transport of rice outside the State is
prohibited because of price hike. Is the legislation valid?

Ans:

Facts of the case :

The Telangana State Government passed a law that transport of rice outside the State is
prohibited because of price hike.

Reasons & Conclusions :

Under Article 304 of the Constitution, the State Government have the power to enact
legislation with restrictions on trade, commerce and intercourse among states on public
interest. In this instant case, the Telangana State Government enacted legislation prohibiting
transport of rice outside the State regulate price hike, which is public purpose. Hence,
legislation is valid.

20. A a Civil Servant (Collector) was suspended without holding any departmental enquiry. What
are the remedies available to the suspended person. Decide.

Ans:
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Facts of the case :
A a Civil Servant (Collector) was suspended without holding any departmental enquiry.
Issues involved :

appropriate constitutional remedy.

Reasons & Conclusions :

Both Union and State Governments are having Civil Service (Classification, Control and Appeal)
Rules, which were issued under Article 309 of the Constitution. As per the said rules pending
enquiry either Disciplinary Authority or Cadre Control Authorities are having powers of
suspension of the Government employee.

In this instant case, the Government employee was suspended, if it is made pending enquiry,
there is no fault on part of the Government. If not, it is violative of Article 311 of the
Constitution.

21. Article 14, 19, 20, 21 and 22 guaranteed by the Fundamental Rights of Indian Constitution
to citizens of India are suspended by the President of India during National Emergency.
A person wants to challenge in the Supreme Court. Advice.

During the period of National emergency all the Fundamental Rights and their operation
was suspended by the President. Is such action valid? Decide. (Aug/Sept 2014)

Ans:
Facts of the case :
Article 14, 19, 20, 21 and 22 guaranteed by the Fundamental Rights of Indian Constitution to
citizens of India are suspended by the President of India during National Emergency.

Issues involved :

Validity of suspension of Article 14, 19, 20, 21 and 22 guaranteed by the Fundamental Rights
of Indian Constitution to citizens of India.

Reasons & Conclusions :

Article 359 empowers President of India to suspend Fundamental Rights (Part-III) except
Article 20 and 21 on recommendation of the union Cabinet. Hence, presidential Order issued
under Article 359, which suspended Article 20 and 21 is not valid.

Sept/Oct 2017

22. A person, unhappy with the judgment in an appeal decided by a High Court, made personal
allegations against the judges of the Bench. Decide whether such action invites Contempt
of Court, with reasons.

Ans:

Facts of the case :

A person, unhappy with the judgment in an appeal decided by a High Court, made personal
allegations against the judges of the Bench.
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Issues involved :

Making personal allegations against the judges of the Bench invites Contempt of Court?

Reasons & Conclusions :

Article 129 and 215 of the Constitution of India, do not confer any new jurisdiction or doesn’t
vest any new powers on the Supreme Court or the High Courts. They merely recognize a pre-
existing situation that the Supreme Court and the High Courts are the ‘courts of record’ by
virtue of which they have inherent jurisdiction to punish for their contempt. It is not
governed by any special or specific rules, and such is to be governed by the principle of natural
justice.

Contempt of court is the offence of being defiant or disrespectful to the court of law. Being
impolite to legal authorities in the courtroom, or rebelliously failing to follow a court order
may draw Contempt of Court proceedings.

In this instant case making personal allegations against the judges of the Bench invites
Contempt of Court under Article 129 and 215 of the Constitution of India.

23. A Government department allowed the confiscation of certain perishable goods under a
statue, but failed either to preserve them or to sell them at market value, during the
pendency litigation. Consequently, all such goods got perished. Later the owner of the
goods won the case and claimed compensation. Is he entitled to it. Decide,

Ans:

Facts of the case :

A Government department allowed the confiscation of certain perishable goods under a

statue, but failed either to preserve them or to sell them at market value, during the pendency
litigation.

Issues involved :

Consequently, all such goods got perished. Later the owner of the goods won the case and
claimed compensation

Reasons & Conclusions :

As there is no legislation which specifies the vicarious liability of the state for the torts
committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which
enumeration of the right to file a suit comes from. Art. 300 gives the right to the public to
sue the state.

In N. Nagendra Rao Vs State of A.P., the Supreme Court held that when due to the
negligent act of the officers of the state a citizen suffers any damage the state will be liable
to pay compensation and the principle of sovereign immunity of state will not absolve him from
this liability. The court held that in the modern concept of sovereignty the doctrine of

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sovereign immunity stands diluted and the distinction between sovereign and non-sovereign
functions no longer exists.

The given problem also similar to N. Nagendra Rao Vs State of A.P., and due to the
negligent act of the officers of the state the confiscation of certain perishable goods got
perished. Hence, the owner of the goods have rightly sued vicarious liability of the state and
he is entitled for compensation and he will succeed the case.

24. A constitutional amendment was made to make India “Non-Social Republic”. Does such
amendment violative the Basic Structure of the Constitution. Decide with reasons.

The Parliament proposed to remove the word “Socialist” from the Preamble to the
Constitution. It is challenged as violation of the Basic Structure of the Constitution.
Decide. (Aug/Sep 2015)

Ans:

Facts of the case :

A constitutional amendment was made to make India “Non-Social Republic”

Issues involved :

Is it violative of basic structure of the Constitution?

Reasons & Conclusions :

Preamble is the basic foundational principles of the Constitution and highlights the ideals and
the goals which the state should strive to achieve. Article 368 of the Constitution provides
amendment power to Parliament, but there is no specific definition of Basic Structure of the
Constitution and its amendable power of Parliament. The Supreme Court evolved the theory
of Basic Structure of the Constitution and its amendable power.

In Kesavananda Bharati’s Case the Supreme Court held that Parliament's constituent power
(power to amend constitution) was subject to inherent limitations. Parliament could not use
its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate',
'change' or 'alter' the 'basic structure' or framework of the Constitution. the preamble of
the constitution clearly resolved that the Union of India is a Sovereign, Socialist, Secular
Democratic Republic Country. Any amendment made to the above effects the basic structure
of the Constitution. Therefore, such amendment is violative of basic structure of the
Constitution.

Hence, it is rightly challenged as violative of basic structure of the Constitution.

Aug/Sept 2016

25. A non-legislature was appointed as a minister in State Cabinet. He could continue as such
only six months, as he could not get elected either as MLA or MLC during such time. After
a week, he was again appointed as a minister in the same Cabinet even though he was still

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 a non-legislature. The second appointment was challenged as unconstitutional. Decide.
(May/June 2016)

A politician was appointed as a minister in State Cabinet even though he was not a either
house of State Legislature. He ceased to be a Minister as he could not get elected either
as an MLA or MLC within the next six months. Can he be appointed as a minister once
again though he is not an MLA or MLC, immediate thereafter? Discuss. (Aug/Sept 2015)

Ans:

Facts of the case :

A non-legislature was appointed as a minister in State Cabinet. He could continue as such only
six months, as he could not get elected either as MLA or MLC during such time.

Issues involved :

After a week, he was again appointed as a minister in the same Cabinet even though he was
still a non-legislature. The second appointment was challenged as unconstitutional

Reasons & Conclusions :

Article 164 implied in the language of clause (4) that every Minister should normally be a
Member of the State Legislature which means of either House if the State Legislature is
bicameral. It is permissible to appoint a person who is not such a Member but then he must
get elected within six months or else he shall cease to be a Minister on the expiration of that
period.

Therefore, it is a clear fraud on the Constitution to misinterpret and misuse this provision (i)
to re-appoint a non-member after six months by giving a few days’ break, (ii) to appoint a
person who is disqualified for being a member, or (iii) to appoint someone who resigns his
membership only to escape disqualification.

Hence, second appointment can be challenged on the grounds of misinterpretation the

Constitution and “colourable exercises of power and amounted to fraud upon the Constitution.”

26. A State legislature enacted a law on regulation of loud speakers in the state, to protect
public health. It was challenged on the ground that the state made law on a central
subject, namely “broadcasting”. Decide.

Ans:

Facts of the case :

A State legislature enacted a law on regulation of loud speakers in the state, to protect public
health.

Issues involved :

It was challenged on the ground that the state made law on a central subject, namely
“broadcasting.”

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Reasons & Conclusions :

The subject matter of the case pertains to Doctrine of Pith and Substance under Article 246
of the constitution. The salient features of the Doctrine of Pith and Substance are as given
below:

1. It becomes applicable in circumstances when the subject matter of one list is in

conflict with the subject matter of another list.

2. The reason behind its adoption is to avoid any limitation on the powers of legislatures
by declaring every other enactment invalid basis that it encroaches upon another law.

3. It is meant to determine the true nature and character of the subject and decide
under which head of the list it falls.

4. The Doctrine provides a degree of flexibility on the powers of the state to make a law
that involves the subject of Union List.

The state of Rajasthan passed legislation prohibiting the use of sound amplifiers in the case
of State of Rajasthan v. G. Chawla (1959). The respondent broke the law, and the judicial
magistrate declared the deed unconstitutional. On appeal to the Supreme Court, the Apex
Court held that even though the amplifier is a broadcasting and communication apparatus, it
did not fall under Entry 31 of List I because the legislation was a state matter in its essence
and was not held invalid even if it encroached on the subject of broadcasting and
communication by accident.

The instant case similar to State of Rajasthan v. G. Chawla (1959), hence the petition
filed challenging the State Act is not maintainable.

27. The police fired on a violent mob which tried to attack a police station where an accused
was kept. To defuse the situation, lati charge was also made. In the process 10 persons
got injured seriously. A NGO filed a PIL in the High Court seeking damages from the
police for the injured. Is such PIL maintainable and damages payable? Decide.

Ans:

Facts of the case :

The police fired on a violent mob which tried to attack a police station where an accused was
kept. To defuse the situation, lati charge was also made. In the process 10 persons got injured
seriously.

Issues involved :

A NGO filed a PIL in the High Court seeking damages from the police for the injured. Is such
PIL maintainable and damages payable.

Reasons & Conclusions :

As there is no legislation which specifies the vicarious liability of the state for the torts
committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which
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enumeration of the right to file a suit comes from. Art. 300 gives the right to the public to
sue the state.

In this instant case, the police fired on a violent mob which tried to attack a police station
where an accused was kept. To defuse the situation, lati charge was also made. In the process
10 persons got injured seriously. With this it is very clear that, the police have performed
their legitimate duties, when Police personal were provoked by an act of attacking the Police
station and to defuse the situation, lati charge was also made. Therefore, the State not liable
vicariously for the lawful action of the Police and is not violative of the provisions of Article
300 of the Constitution. Hence, PIL filed by NGO is not maintainable.

May/June 2016

28. A Government employee was arrested on the ground of sexual harassment in the
office and not produced within 24 hours before the Magistrate and suspended on the same
ground. Advise him.

Ans:

Facts of the case :

A Government employee was arrested on the ground of sexual harassment in the office

Issues involved :

Arrested personal was not produced within 24 hours before the Magistrate and suspended on
the same ground.

Reasons & Conclusions :

On sexual harassment the suspect is liable for criminal prosecution, and on the same ground
Government employee, who is suspect can be suspended with pending enquiry.

Under Clause (1) & (2) of Article 22 four rights are guaranteed if a person is arrested for
offence under an ordinary law; (i) The right to be informed “as soon as may be” of ground of
arrest; (ii) The right to consult and to be represented by a lawyer of his own choice; (iii) The
right to be produced before a Magistrate within 24 hours; (iv) The freedom from detention
beyond the said period except by the order of the magistrate. In this instant case the
arrested person was not produced before the magistrate within 24 hours and in D.K. Basu v
State of West Bengal 1997 case guidelines were issued by the Supreme Court.

Hence the arrested person can sue the police either under Article 226 of the Indian
Constitution before the High Court of the concerned State or under Article 32 of the Indian
Constitution before the Supreme Court of India not producing him before the Magistrate
within 24 hours of time.

29. The State Legislation had provided seven years punishment for a certain offence. The
subsequent Central Legislation fixed three years as punishment for the same offence.
There is repugnancy between the State Legislation and Central Legislation. Explain.

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Ans:

Facts of the case :

The State Legislation had provided seven years punishment for a certain offence. The
subsequent Central Legislation fixed three years as punishment for the same offence.

Issues involved :

There is repugnancy between the State Legislation and Central Legislation.

Reasons & Conclusions :

In Raghu Bir Vs State of Haryana (AIR 1981 SC 2036), the Petitioner, aged 16 years, was
convicted for the offence of murder under Section 632 of IPC and under the procedure law
(i.e., Cr.P.C.1973). the petitioner contended that he was aged only 16 years, and there was a
separate Act for children in Haryana. Known as “the Haryana Children Act, 1974” according
to which he should be prosecuted. The counsel for accused argued that the Haryana Children
Act, 1974 was a local Act, and all the local Acts have been saved by the Section 5 of the
CR.P.C. 1973, which was placed in concurrent List vide Entry No. 2 of the Constitution.

The prosecution contended that there was a repugnancy between the Haryana Children Act,
1974 and Cr.P.C., as the Cr.P.C. is the Central Act, it should be given priority over the State
Legislation, when the repugnancy arose.

The Supreme Court held that the Cr.P.C. itself saved the local laws, there is no question of
repugnancy, and therefore, the Haryana Children Act, 1974 should prevail, the prosecution
should be carried on the Haryana Children Act, 1974 only. The Supreme Court ordered for
new trail under the Haryana Children Act, 1974.

Similarly in this case the state Act is a local Act have been saved by the Section 5 of the
CR.P.C. 1973 and as per the above verdict of Supreme Court there is no question of
repugnancy, and therefore, the State Legislation will be made applicable for the offence.

Aug/Sept 2015

30. A Governor of a State was appointed by a Polity’s regime. The party lost the election in
the next elections. The newly formed Central Government asked the Governors to leave
the Office even though he did not complete five years. Discuss the validity of such action.

Ans:

Facts of the case :

A Governor of a State was appointed by a Polity’s regime. The party lost the election in the
next elections. The newly formed Central Government asked the Governors to leave the
Office even though he did not complete five years.

Issues involved :

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Validity of newly formed Central Government decision to make stepdown Governors, who were
appointed during earlier regime though not completed five years of term.

Reasons & Conclusions :

As per Article 156(1) of the Constitution states that the Governor holds his office at the
pleasure of the President and as per Clause (3) of Article 156 provides for the tenure of the
governor of the States holds the office for the term of five years from the date on which
he enters upon his office, provided, that a Governor continues to hold office until his
successor enters upon his of his term and in compliance of Clause (1) of Article, which is
clearly an executive power of the President, which in generally lies on the recommendation of
Union Cabinet.

Hence, newly formed Central Government asking the Governors to leave the Office even
though they did not complete five years is unconstitutional, but they may be removed by the
President of India on the recommendation of Union Cabinet.

31. A state made a law to regulate the stay and movement of foreigners in that State. Discuss
the Constitutional validity of such a law.

Ans:

Facts of the case :

A state made a law to regulate the stay and movement of foreigners in that State.

Issues involved :

Constitutional validity of law, which regulates the stay and movement of foreigners in that
State.

Reasons & Conclusions :

The entry No. 3 List III - Concurrent list of Indian Constitution provides that Preventive
detention for reasons connected with the security of a State, the maintenance of public
order, or the maintenance of supplies and services essential to the community; persons
subjected to such detention. Under the said Concurrent subject the State is empowered to
make laws to regulate the stay and movement of foreigners in that State.

32. A Government employee was dismissed by an authority below the rank of appointing
authority. Discuss the validity of such action.

Ans:

Facts of the case :

A Government employee was dismissed by an authority below the rank of appointing

authority

Issues involved :

validity of dismissal order issued by an authority below the rank of appointing authority
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Reasons & Conclusions :

Both Union and State Governments are having Civil Service (Classification, Control and Appeal)
Rules, which were issued under Article 309 of the Constitution. In general, as per aforesaid
rules, Disciplinary Authorities/ appointing Authorities are empowered to initiate disciplinary
proceedings and can impose certain penalties, if the charges are proved. Other than the
authorities notified have no power to initiate disciplinary proceedings and impose penalties.

As such no power vested to an authority below the rank of appointing, the action is clearly
violative of the provisions of Article 311 and hence, dismissal order issued by such officer is
unconstitutional.

Aug/Sept 2014

33. A, a Civil Servant, was forced to retire without holding any enquiry. A wants to challenge
the forcible retirement. Advice “A”.

Ans:

Facts of the case :

A, a Civil Servant, was forced to retire without holding any enquiry.

Issues involved :

challenging the forcible retirement

Reasons & Conclusions :

Forcible retirement means compulsory retirement. In Baikunth Nath Vs Chief Medical

Officer (1992), the Supreme Court held that, the Government can compulsorily retire a
person without giving any reason. An order of compulsory retirement is not a punishment. It
implies no stigma and the order must be passed in Public Interest, dule noting down the
antecedents of that person. However, the courts are empowered to interfere if the order is
malafide and in the nature of harassment.

Hence, the Govt.’s order of compulsory retirement is not a punishment and aggrieved civil
servant may be asked to file a suit, if the order is malafide and in the nature of harassment
for principles of natural Justice.

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