Category: Union and State

ISSUE:

Can the Governor exercise discretion on appointing and removing members of the Subordinate Judicial Service?

Whether the constitutional requirement of the satisfaction of the President/Governor mean his satisfaction?

RULE:

The satisfaction required by the Constitution of India is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of the Government, that is, the satisfaction of his Council of Ministers.

ISSUE:

Whether the appointment of Shri Tej Parkash Singh for a second time during the term of the same Legislature, without being elected as a Member of the Legislature, violative of the constitutional provisions?

RULE:

Article 164 (4) of the Constitution of India states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

ISSUE:

Whether a person who is not a member of either House of Parliament can be appointed as the Prime Minister of India?

RULE:

Article 75(5) of the Constitution of India permits the President of India to appoint a person who is not a member of either House of Parliament as a Minister, including a Prime Minister subject to the possibility of his commanding the support of the majority of members of the Lok Sabha.

ISSUE:

To what extent Article 14 of the Constitution of India renders the Ordinance and the Act to be extra vires?

Whether the President's promulgation of the Ordinance go beyond his authority granted by Article 123 of the Constitution of India?

Whether the classification made under the Bond Bearer Act, 1981 between the holders of black money and others is not practical, real, intelligible and not arbitrary, and irrational and therefore violative of the equal protection clause in Article 14 of the Constitution of India?

RULE:

The right to equality is enshrined in Article 14 of the Constitution of India. By its terms, discrimination of any kind is forbidden by law, and all people are treated equally.

Article 123 of the Constitution of India mentions the Ordinance-making power of the President. He can promulgate Ordinances either when both the houses or either of the Houses is not in session.

ISSUE:

Is granting sanction for prosecuting the Ministers a function which could be exercised by the Governor “at his discretion” within the meaning of these words as used in Article 163 of the Constitution of India?

RULE:

The Governor cannot act at his discretion there would be a complete breakdown of the rule of law since it would then be open for Governments to refuse sanction despite overwhelming material showing that a prima facie case is made out.

It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.

ISSUE:

Whether Article 213 of the Constitution of India confers a mandatory obligation upon the Executive to table an Ordinance before the Legislature?

Whether a re-promulgation of the Ordinance is permissible under the Constitution of India?

Whether an act through an Ordinance remains valid even after the Ordinance ceases to operate?

RULE:

Article 213 of the Constitution of India states that “In the event of a lapse in legislative action, the governor retains the authority to issue executive orders.”

The Governor has the power to promulgate Ordinances when the State Legislature is not in session and these Ordinances must be approved by the State Legislature within 6 weeks of its reassembly.

ISSUE:

Whether after the Amendment to Article 173 of the Constitution of India, it was not open to the Governor to appoint a person who was not a member of the Legislature of the State as a Minister?

Whether Article 164(4) of the Constitution of India would only apply to a person who had been a Minister but who ceased to be a member of the Legislature for some reason, such as the setting aside of his election in any election petition?

RULE:

The Sixteenth Amendment Clause (a) of Article 173 of the Constitution of India was amended by the addition of a clause that required a candidate at an election to the Legislature to make and subscribe before some person had been authorized on that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. adherence to the treaty and international responsibilities. It is one thing to state that Parliament may pass legislation about extraterritorial issues or causes since they affect or have a connection to India.

ISSUE:

Whether the Governor can mechanically re-promulgate the ordinance for an indefinite period of time, and thus take over the power (from the legislature) to legislate through the powers conferred on him under Article 213 of the Constitution of India?

Whether the petitioners have a legal standing to challenge the validity of the re-promulgation of the ordinances?

RULE:

Article 213 of the Constitution of India states that “In the event of a lapse in legislative action, the governor retains the authority to issue executive orders.”

The Governor of a State may publish such Ordinance as the circumstances seem to necessitate at any time, except during the session of the Legislative Assembly of a State or, if there is a Legislative Council in a State, except during the session of both Houses of the Legislature to an extent that:

(a) The introduction of a Bill with identical provisions into the Legislature would have required the prior sanction of the President under this Constitution, or

(b) The Governor would have deemed it necessary to reserve a Bill with identical provisions for the consideration of the President, the Governor shall not, without instructions from the President, promulgate any such Ordinance.

ISSUE:

Whether the National Security Ordinance is constitutional or not?

Whether the preventive detention is a valid measure for regulating the liberties of an individual?

Whether the provisions of Section 3 of the National Security Act, 1980 are extremely vague and can easily deprive a person of his liberty?

RULE:

As long as the preventive detention law is made within the legislative power arising out of a legislative entry and is within the conditions and restrictions on that power, it cannot be construed that preventive detention is disallowed under the Indian Constitution.

Further, while care must be taken to restrict the application of the National Security Act, 1980, the statute cannot be struck down for being vague or uncertain.