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Thursday 16 November 2017
Tuesday 31 October 2017
INDIAN JUDICIAL DOCTRINES
A doctrine
is a belief, principle or position – usually upheld by authorities like courts.
As far as Indian Judiciary is concerned, there are many doctrines. Many of you
may be familiar with the Doctrine of Basic Structure. In this article,
we will be dealing all important Indian Judicial Doctrines.
Doctrine of Basic Structure
The basic
structure doctrine is an Indian judicial principle that the Constitution of
India has certain basic features that cannot be altered or destroyed through
amendments by the parliament.
But what
should be considered as the basic features of the Indian Constitution is not
explicitly defined by the Judiciary. It is widely believed that democracy,
federalism, independence of the judiciary, secularism etc. are part of the
basic features.
The claim
of any particular feature of the Constitution to be a “basic” feature is
determined by the Court on a case-by-case basis.
This
doctrine was first expressed in Kesavananda Bharati v. The State of Kerala (1973).
Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the
majority, India continues to be the world’s largest democracy.
Doctrine of Harmonious Construction
- This doctrine was brought about to bring harmony between the different lists mentioned in the Schedule 7 of the Constitution of India. Different subjects are mentioned in different lists in this schedule.
- However, there can be a situation where an entry of one list overlaps with that of another list. This is the time when this doctrine comes into the picture.
- It was said that the words of the entries should be given wide amplitude and the courts shall bring harmony between the different entries and lists.
- Supreme Court applied this Doctrine in the case of Tika Ramji vs the State of UP.
Doctrine of Eclipse
- The doctrine states that if any law becomes contradictory to the fundamental rights, then it does not permanently die but becomes inactive.
- As soon as that fundamental right is omitted from the Constitution, the inactive law becomes revived.
- When a court strikes a part of the law, it becomes unenforceable. Hence, an ‘eclipse’ is said to be cast on it. The law just becomes invalid but continues to exist.
- The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.
- Supreme Court first applied this doctrine in the case of Bhikaji vs State of Madhya Pradesh where it applied to pre-constitutional law. The extension to the post-constitutional law was stated in the case of Dulare Lodh vs ADJ Kanpur.
Doctrine of Pith and Substance
- This doctrine comes into picture when there is a conflict between the different subjects in different lists. There is an interpretation of List 1 and List 2 of the Constitution of India.
- There can be a situation when a subject of one list touche the subject of another List. Hence this doctrine is applied then.
- Pith and Substance means the true nature of law.
- The real subject matter is challenged and not its incidental effect on another field.
- The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers.
- The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.
- It was applied by the Supreme Court in the case State of Bombay Vs F.N Balasar.
Doctrine of Incidental or Ancillary Powers
- This principle is an addition to the doctrine of Pith and Substance.
- What it means is that the power to legislate on a subject also includes the power to legislate on ancillary matters that are reasonably connected to that subject.
- For example, the power to impose tax would include the power to search and seizure to prevent the evasion of that tax. However, power relating to banking cannot be extended to include power relating to non-banking entities.
- However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, the power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.
- As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.
- However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.
Doctrine of Colourable Legislation
- This is applied when the legislature enacting the law has transgressed its power as is mentioned in the Constitution.
- The expression “colourable legislation” simply means what cannot be done directly, cannot be done indirectly too.
- It is the substance that is material and not the outward appearance.
- Hence there are certain situations when it seems that it is within the power of the legislature enacting the law but actually it is transgressing. This is when this doctrine comes into the picture.
- It was applied by the Supreme Court of India in the case State of Bihar vs Kameshwar Singh and it was held that the Bihar Land Reforms Act was invalid.
Doctrine of Severability
- According to this doctrine, if there is any offending part in a statute, then, only the offending part is declared void and not the entire statute.
- Article 13 states that the portion that is invalid should be struck off and not the entire one. The valid part can be kept.
- However, it should be kept in mind that even after separation; the remaining part should not become ambiguous.
- If the remaining part becomes ambiguous, then the whole statute would be declared void and of no use.
- Supreme Court in the case of RMDC vs. UOI states that doctrine of severability is a matter of substance and not of form.
Doctrine of Territorial Nexus
- Article 245 states that a state legislature can make laws on the territory of the state and not on extraterritorial laws provided there is nexus or connection between the sate and the object of the legislation.
- Article 245(1) states that the Parliament of India can make laws for the whole or any territory of India.
- Similarly, a state legislature can do the same.
- Such laws cannot be declared invalid on the growth that they are extraterritorial according to Article 245(2).
- To determine whether a particular legislation is within the territorial nexus or not, this doctrine is applied.
- Supreme Court applied this doctrine in the case of Tata Iron Steel vs. the State of Bihar.
Doctrine of Laches
- Laches means delay. The doctrine of laches is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” (Black’s Law Dictionary).
- The outcome is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.
- Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent.
- It is well known that one who wants remedy must come before the court within a reasonable time.
- Lapse of time violates equity and it is against the concept of justice.
- Hence the issue came up whether delay can be a ground to deny fundamental rights under Article 32.
- It was said that denial of fundamental rights only on the ground of delay is not justified as fundamental rights are basic and very essential for the development of the individual.
- Supreme Court under the case of Ravindra Jain vs UOI stated that remedy under article 32 can be denied on grounds of unreasonable delay. However, there has been no case to overrule the above-mentioned case law by the Supreme Court order.
Thursday 28 September 2017
Monday 21 August 2017
VICE PRESIDENT OF INDIA
Venkaiah Naidu is the current Vice
President of India. He defeated UPA's candidate Gopalkrishna Gandhi on 5 August
2017 election.
Former
Vice Presidents of India
VICE PRESIDENT OF
INDIA
Ø
Articles
63 – 69 deals with VP of India.
Ø
The
VP occupies the 2nd highest office in the country.
Ø
VP
is accorded a rank next to the president in the official warrant of precedence.
Ø
H.V.Kamath
proposed the creation of office of VP in constituent assembly.
Article
63: The VP of India
Article
63 says there shall be office of VP.
Article
64: The VP to be Exofficio chairman of the
council of states
According
to article 64 the Vice-President shall be ex
officio Chairman of the Council of States and shall not hold any other office of profit.
During
any period when the Vice-president acts as President or discharges the
functions of the President under article 65, he shall not perform the duties of
the office of Chairman of the Council of States and shall not be entitled to
any salary or allowance payable to the Chairman of the Council of States.
The
office of VP is modeled on the lines of the American VP.
Article65: The Vice-President to act as President or to discharge his functions
during casual vacancies in the office, or during the absence, of President.
1) In the event of the occurrence of
any vacancy in the office of the President by reason of his death, resignation
or removal, or otherwise, the Vice-President shall act as President until the
date on which a new President elected in accordance with the provisions of this
Chapter to fill such vacancy enters upon his office.
When
two president died in office
2) When the President is unable to
discharge his functions owing to absence, illness or any other cause, the
Vice-President shall discharge his functions until the date on which the
President resumes his duties.
The
VP Sarvepalli Radhakrishna discharged the functions of president in june 1960
when Rajendra Prasad was on 15 days tour to USSR and again I 1961 when the
president was ill and taking treatment in Germany.
3) The Vice-President shall, during,
and in respect of, the period while he is so acting as, or discharging the
functions of, President, have all the powers and immunities of the President
and be entitled to such emoluments, allowances and privileges as may be
determined by Parliament by law and, until provision in that behalf is so made,
such emoluments, allowances and privileges as are specified in the Second
Schedule.
When
VP is while discharging the function of President (acting) then he cannot preside over the council as chairman.
VP
takes oath before CJI as acting president.
Article
66: Election of Vice President
1) VP is elected by the Electoral
College consisting of members of both houses of parliament only, including
nominated members. Election in accordance with proportional representation by
means of single transferable vote through secret ballot.
The
vote value of voter in Electoral College is one.
Number of votes = 545 LS
= 245 RS = 790
Up
to 1962 VP elections are held by open ballot voting and through joint session
and secret ballot system.
In
the original COI, parliament use to elect VP in joint session. In 1961 by 11th
constitutional amendment it was dispensed with separate elections.
In
1957 and 1974 supreme court ruled that elections can be held for president and
VP if there are vacancies in Electoral College.
2) The Vice-President shall not be a
member Parliament or Legislature of any State, and if a member of Parliament or
Legislature of any State be elected as Vice-President, he shall be deemed to
have vacated his seat in that House on the date on which he enters upon his
office as Vice-President.
Elections
of VP are conducted by Election Commission.
Parliament
has the power to amend in the election manner of VP.
VP
elected according to the “Presidential and Vice Presidential Act 1952”.
3) No person shall be eligible for
election as Vice President unless he
a) is a citizen of India;
b) has completed the age of thirty-five
years; and
c) is qualified for election as a
member of the Council of States.
Qualification
of VP is same as that of POI, but he should be qualified for elections as a
member of RS in case of president he should be qualified as a member of LS.
Qualification
are based on 1997 amendment of Presidential and Vice Presidential Act 1952.
One
can be elected for any number of terms.
Conditions:
VP PRESIDENT
Support
by 20 members 50 members
Seconded
by 20 member’s 50 members
Deposit
of 15,000 15,000
To
get back the deposit the candidates has to secure 1/6th of votes
polled and valid.
All
doubts and disputes arising out of or inconnection with the election of a
President or VicePresident shall be inquired into and decided by the Supreme
Court whose decision shall be final. [71(1)]
Salary:
· Charged from consolidated fund of India.
· It can be reduced at any time.
· VP receives the salary as chairman of RS (Article 97), apart from all allowances.
· Does not come under IT.
· Salary – RS 1,25,000/-
· The pension for the Vice-President is 50% of the salary.
A person shall not be eligible for election as Vice President if he holds any office of profit.
Article
67: Term of office of Vice-President
The
Vice-President shall hold office for a term of five years from the date on
which he enters upon his office:
a) a Vice-President may, by writing
under his hand addressed to the President, resign
his office;
According
to president and vice presidential ______ amendment act 1969, if office of
president is vacant, the VP has to give his resignation to CJI addressing POI.
b) a Vice-President may be removed from
his office by a resolution of the Council of States passed by a majority of all
the then members of the Council and agreed to by the House of the People; but
no resolution for the purpose of this clause shall be moved unless at least
fourteen days' notice has been given of the intention to move the resolution;
c) a Vice-President shall,
notwithstanding the expiration of his
term, continue to hold office until his successor enters upon his office.
- In the case of removal procedure of VP COI remains silent, no specific ground is mentioned in the constitution. But the ground is deemed to be violation of constitution.
- The motion relating to the removal of VP shall be initiated in RS, for this a notice of 14 days in advance signed by one fourth of the total members of that house. After that the RS has to approve the motion with simple majority or majority vote. After approval of motion in RS it is moved to LS, if the motion is approved with same (simple) majority VP stands removed, if not the motion gets defeated.
- According to Article 91 any resolution for the removal of the Vice-President from his office is under consideration, the Chairman can not preside over the sitting.
- According to Article 92 the Chairman shall have the right to speak in, and take part in the proceedings of, the Council of States while any resolution for the removal of the Vice-President from his office is under consideration in the Council, shall not be entitled to vote at all on such resolution or on any other matter during such proceedings.
- Both the houses of parliament has to approve the motion separately otherwise motion gets defeated.
- It is not impeachment; it is a simple removable procedure.
- So far no VP is removed.
- Krishna kanth is the only VP died in the office.
Article
68: Time of holding election to fill vacancy in
the office of Vice President and the term of office of person elected to fill
casual vacancy
1) An election to fill a vacancy caused
by the expiration of the term of office of Vice-President shall be completed
before the expiration of the term.
2) In case of vacancies occurred in the
office of VP except on the ground of completion of tenure, new VP shall be
elected as soon as possible. No time period is mentioned.
No
acting VP in case of vacancy and the office is kept vacant till new VP is
elected. During that period, those duties are performed by the deputy chairman
of RS.
The
newly elected person holds the office for the full term of five years from the
date on which he enters upon his office.
Article
69: Oath or affirmation by the Vice President.
Vice-President
shall, before entering upon his office, make and subscribe an Oath before the
President, or some person appointed in that behalf by him.
Powers and Functions of VP:
Ø
The
VP to be Exofficio chairman of the council of states. He presides over RS and
conducts the business of RS as speaker of LS.
Ø
He
acts as POI in case of unexpected vacancies for the maximum of 6 months.
Ø
He
was the chancellor to all central universities in India, and appoints vice
chancellors to the central universities.
Ø
He
acts as the chairman of Barath Ratna and Padma Awards committee.
LIST OF
VICE-PRESIDENTS OF INDIA
No.
|
Vice-President
|
office
|
President
|
1
|
Dr. Sarvepalli
Radhakrishnan
(1888–1975) |
1952 - 1962
|
|
2
|
Dr. Zakir Hussain
(1897–1969) |
1962 - 1967
|
|
3
|
Sh. Varahagiri Venkata Giri
(1894–1980) |
1967 - 1969
|
|
4
|
Gopal Swarup
Pathak
(1896–1982) |
1969 - 1974
|
|
5
|
Basappa Danappa
Jatti
(1912–2002) |
1974 - 1979
|
|
6
|
Justice Muhammad
Hidayatullah
(1905–1992) |
1979 - 1984
|
|
7
|
Ramaswamy Venkataraman
(1910–2009) |
1984 - 1987
|
|
8
|
Shankar Dayal
Sharma
(1918–1999) |
1987 - 1992
|
|
9
|
Kocheril Raman Narayanan
(1920–2005) |
1992 - 1997
|
|
10[2]
|
Krishan Kant
(1927–2002) |
1997 - 2002
|
|
11
|
Bhairon Singh
Shekhawat
(1923–2010) |
2002 - 2007
|
|
12
|
Mohammad Hamid
Ansari
(1937– ) |
2007 -2017
|
|
13
|
Muppavarapu
Venkaiah Naidu
(1949–) |
2017 -
|
Ram
Nath Kovind
|
List of VP who become POI
1.
Dr. Sarvepalli Radhakrishnan
2. Dr. Zakir Hussain
3. Sh. Varahagiri Venkata Giri
4. Ramaswamy Venkataraman
5. Shankar Dayal Sharma
6. Kocheril Raman Narayanan
2. Dr. Zakir Hussain
3. Sh. Varahagiri Venkata Giri
4. Ramaswamy Venkataraman
5. Shankar Dayal Sharma
6. Kocheril Raman Narayanan
Ø The
Vice President of India is Mohammad
Hamid Ansari, since 11 August 2007, and re-elected on 7
August 2012.
Ø Mohammad
Hamid Ansari 14th VP by post and 12th by person.
7.
Hamid Ansari is the 2nd person to get elected for the post of Vice
President of India at two consecutive terms, after Dr. Sarvepalli Radhakrishnan.
Ø First
dalit VP is Kocheril Raman Narayanan.
Ø Krishna
kanth is the only VP died in the office.
Ø Bhairon
Singh Shekhawat was
the 11th VP lost in 2007 presidential elections.
Ø 2007
VP elections NDA candidate is Najma Heptullah
and UNPA candidate is Rasheed Massod.
Ø 2007
VP elections NDA candidate is Jaswant Singh.
Ø Dr.B.R.Ambedkar
compared the post of VP with Prince of Wales.
Ø Dr. Sarvepalli Radhakrishnan, Justice
Muhammad Hidayatullah, Shankar
Dayal Sharma were elected unopposedly
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