Class Notes on Constitutional Law – Unit V (1st Sem / 3 year LL.B)

The Emergency Provisions – need of Emergency Powers – kinds of Emergency – Arts. 352 – 360

Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle special situations. In emergency, the center can take full legislative and executive control of any state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why academicians are hesitant to call Indian constitution as fully federal.

Emergency can be of three types –

• Due to war, external aggression or armed rebellion (Article 352)
• failure of constitutional machinery in a state (Article 356), or
• financial emergency (Article 360).

However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third case it is called “Proclamation of Financial Emergency:

Proclamation of Emergency

Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect regarding whole of India or a part thereof.

However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union Cabinet.  Such a proclamation must be placed before each house of the parliament and must be approved by each house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.

• In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court’s power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
• Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in art 352.

On Executive – Art 353

1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.
4. State Government is not dismissed when National Emergency is proclaimed but brought under the effective control of the Union.
5. As soon as National Emergency is proclaimed distribution of power between Centre and States gets automatically suspended. Hence, Union Executive is free to give directions on all the subjects and such directions are binding on the States.

On Legislature – Art 354

Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Judicial Review – Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency.

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

The Impact of Emergency on Federalism and Fundamental Rights  – Arts. 353 – 360

Art 359

This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

Art 358	Art 359
Freedoms given by art 19 are suspended.	Fundamental rights are not suspended. Only the courts cannot be moved to enforce fundamental rights.
Any actions done or omitted to be done cannot be challenged even after emergency.	Any action done by the legislature or executive can be challenged after the suspension is over.
Art 19 is suspended for the period of emergency.	Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension.
Effective all over the country.	May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.

State Emergency on failure of Constitutional Machinery in a State / Centre-State Relations – Arts. 356 – 357

Provisions in case of failure of constitutional machinery is States

Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state is cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all or any of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state except the legislature of the state. The power of the legislature of the state shall be exercised by the authority of the parliament.

Under this article, president can also make such incidental and consequential provisions which are necessary to give effect to the objectives of the proclamation. This includes suspension of any provision of this constitution relating to any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356

• parliament can confer upon the president the power of legislature of the state to make laws or the power to delegate the power to make laws to anybody else.
• the parliament or the president can confer power or impose duties on the Union or Union officers or Union authorities.
• president can authorize the expenditure from the consolidated fund of the stat pending sanction of such expenditure by the parliament.

The Financial Emergency – Art. 360

Under Article 360 the President enjoys the power to proclaim the financial Emergency. If he is satisfied that a situation has arisen that financial stability and credit of India or any part thereof is threatened he may proclaim emergency to that effect. All such proclamations

• (a) Can be varied or revoked by the President.
• (b) Financial Emergency must be approved by the Parliament within 2 months after its proclamation. Once it is approved, it will remain till the President revokes it.

Effects of Financial Emergency

1. President is empowered to suspend the distribution of financial resources with States.
2. President can issue directions to States to follow canons of financial propriety.
3. He can direct State Government to decrease salaries allowances of Civil Servants and other Constitutional dignitaries.
4. President can direct the government to resume all the financial and Money Bills passed by legislature for his consideration.

The President can issue directions for the reduction of salaries and allowances of Judges of the Supreme Court and the High Courts.

Changes made by 44th Amendment

44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment. The following are important points of this amendments-

• “Internal disturbance” was replaced by “armed rebellion” under art 352.
• The decision of proclamation of emergency must be communicated by the Cabinet in writing.
• Proclamation of emergency must be by the houses within one month.
• To continue emergency, it must be re approved by the houses every six month.
• Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10 of the members of a house can move such a resolution.
• Art 358 – Under this article art 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All other laws can still be challenged if they violate art 19.
• Art 359, under this article, suspension of the right to move courts for violation of part III will not include art 20 and 21.
• Reversed back the term of Lok Sabha from 6 to 5 years.

Services under the State (the Doctrine of Pleasure) – Arts. 308 – 314

The Doctrine of Pleasure

The doctrine of pleasure owes its origin to common law. The rule in England was that a civil servant can hold his office during the pleasure of the crown and the service will be terminated any time the crown wishes the same rule is applied in India. The member of Defence services or civil services of the union or All-India services hold their office during the pleasure of president. Similarly member of state services holds the office during the pleasure of governor. the provisions related to services under union and state is contained under part XIV of the Indian constitution.

The article 310 of Indian constitution reads that

“Except as expressly provided by this Constitution, every person who is a member of a Defence service or of a civil service of the Union or of an All India Service or holds any post connected with Defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

“Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be of the Governor of the State, any contract under which a person, not being a member of a Defence service or of an All-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate the post”.

Now if such powers are given to president of India and the governor of states than it would be really difficult to exercise power on them so there are certain offices which are outside the purview of article 310 and article 311 was put as a restriction to doctrine of pleasure.

Services excluded from the purview of Article 310

1. Tenure of supreme court judges (Article 124)
2. Tenure of high court judges (Article 148(2))
3. The chief election commissioner (Article 324)
4. Chairman and member of public- service commission (Article 317)

The article 311 acts as a safeguard to civil servants. It reads as under;

(1) 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 he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply —

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”

The procedure laid down in Article 311 is intended to assure, first, a measure of security of tenure to Government servants, who are covered by the Article and secondly to provide certain safeguards against arbitrary dismissal or removal of a Government servant or reduction to a lower rank. These provisions are enforceable in a court of law. Where there is an infringement of Article 311, the orders passed by the disciplinary authority are void ab-initio and in the eye of law “no more than a piece of waste paper” and the Government servant will be deemed to have continued in service or in the case of reduction in rank, in his previous post throughout. Article 311 is of the nature of a proviso to Article 310. The exercise of pleasure by the President under Article 310 is thus controlled and regulated by the provisions of Article 311.

When termination of service will amount to punishment of dismissal or removal.

1. Whether termination of service of a Government servant in any given circumstance will amount to punishment will depend upon whether under the terms and conditions governing his appointment to a post he had a right to hold the post but for termination of his service. If he has such a right, then the termination of his service will, by itself, be a punishment for it will operate as a forfeiture of his right to hold the post. But if the Government servant has no right to hold the post the termination of his employment or his reversion to a lower post will not deprive him of any right and will not, therefore, by itself be a punishment.

2. If the Government servant is a temporary on and has no right to hold the post, dismissal or removal will amount to punishment if such a Government servant has been visited with certain evil consequences.

When Article 311 is applicable.

The most notable point is that Article 311 is available only when “dismissal, removal, reduction in rank is by way of punishment”. so it is difficult to determine as to when an order of termination of service or reduction in rank amounts to punishment

in case of Parshottam Lal Dhingra Vs Union of India. The supreme court laid down 2 tests to determine when termination is by way of punishment –

• Whether the servant had a right to hold the post or the rank;
• Whether he has been visited with evil consequences.

If a government servant had a right to hold the post or rank under the terms of any contract of service, or under any rule, governing the service, then the termination of his service or reduction in rank amounts to a punishment and he will be entitled to protection under Article 311. Articles 310 and 311 apply to Government servants, whether permanent, temporary, officiating or on probation.

Exceptions to Article 311 (2)

The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in the substantive part of the clause need not be followed. These are set out below.

1. Conviction on a criminal charge. – One of the circumstances excepted by clause (a) of the provision is when a person is dismissed or removed or reduced in rank on the ground of conduct which has laid to his conviction on a criminal charge. The rationale behind this exception is that a formal inquiry is not necessary in a case in which a court of law has already given a verdict. However, if a conviction is set aside or quashed by a higher court on appeal, the Government servant will be deemed not to have been convicted at all. Then the Government servant will be treated as if he had not been convicted at all and as if the order of dismissal was never in existence. In such a case the Government servant will also be entitled to claim salary for the intervening period during which the dismissal order was in force. The claim for such arrears of salary will arise only on reinstatement and therefore the period of limitation under clause 102 of the Limitation Act would apply only with reference to that date . The grounds of conduct for which action could be taken under this proviso could relate to a conviction on a criminal charge before appointment to Government service of the person concerned. If the appointing authority were aware of the conviction before he was appointed, it might well be expected to refuse to appoint such a person but if for some reason the fact of conviction did not become known till after his appointment, the person concerned could be discharged from service on the basis of his conviction under clause (a) of the proviso without following the normal procedure envisaged in Article 311.

2. Impracticability – Clause (b) of the proviso provides that where the appropriate disciplinary authority is satisfied, for reasons to be recorded by that authority in writing that it does not consider it reasonably practicable to give to the person an opportunity of showing cause, no such opportunity need be given. The satisfaction under this clause has to be of the disciplinary authority who has the power to dismiss, remove or reduce the Government servant in rank. As a check against an arbitrary use of this exception, it has been provided that the reasons for which the competent authority decides to do away with the prescribed procedures must be recorded in writing setting out why it would not be practicable to give the accused an opportunity. The use of this exception could be made in case, where, for example a person concerned has absconded or where, for other reasons, it is impracticable to communicate with him.

3.Reasons of security – Under proviso (c) to Article 311 (2), where the President is satisfied that the retention of a person in public service is prejudicial to the security of the State, his services can be terminated without recourse to the normal procedure prescribed in Article 311 (2).The satisfaction referred to in the proviso is the subjective satisfaction of the President about the expediency of not giving an opportunity to the employee concerned in the interest of the security of the State. This clause does not require that reasons for the satisfaction should be recorded in writing. That indicates that the power given to the President is unfettered and cannot be made a justifiable issue, as that would amount to substituting the satisfaction of the court in place of the satisfaction of the President.

Is suspension or compulsory retirement a form of punishment?

Neither suspension nor compulsory retirement amounts to punishment and hence they can’t be brought under the purview of Article 311 and has no protection is available.

Supreme court in case of such Bansh singh Vs State of Punjab clearly held that suspension from service is neither dismissal nor removal nor reduction in rank, therefore, if a Government servant is suspended he cannot claim the constitutional guarantee of Article 311[2].

In Shyam Lal Vs State of U.P, Supreme Court held that compulsory retirement differ from dismissal and removal as it involves no penal consequences and also a government servant who is compulsory retired does not loose any part of benefit earned during the service so it doesn’t attract the provisions of Article 311.

Other safeguards to civil servants

Article 311(1) : It says that a civil servant cannot be dismissed or removed by any authority subordinate to the authority by which he was appointed

Article 311(2): It says that a civil servant cannot be removed or dismissed or reduced in rank unless he has been given a reasonable opportunity to show cause against action proposed to be taken against him.

In many cases like in Khem Chand vs. Union of India, and in Union of India and another vs. Tlusiram Patel, the Supreme Court gave an exhaustive interpretation of the various aspects involved and they provide the administrative authorities authoritative guidelines in dealing with disciplinary cases.

Is article 310 and 311 contrary to article 20(2) of Indian constitution or to the principle of natural justice?

When a government servant is is punished for the same misconduct under the army act and also under central civil services (classification and control and appeal) rules 1965 then the question arises that can it be brought under the ambit of double jeopardy. The answer was given by supreme court in the case of Union of India Vs Sunil Kumar Sarkar . held that the court martial proceeding is different from that of central rules , the former deals with the personal aspect of misconduct and latter deals with disciplinary aspect of misconduct.

Ordinarily , natural justice does not postulate a right to be represented or assisted by a lawyer, in departmental Inquiries but in extreme or particular situation the rules of natural justice or fairness may require that the person should be given professional help.

The Liability of State in Contracts – Art. 299

Article 299 narrates about “the Liability of State in Contracts”

299. Contracts.—(1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
(2) Neither the President nor the Governor shall be personally liable in respect of
any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.

Essentials of Article 299

1. All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be.
2. All such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
3. No liability of the President or Governor: Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
4. Article 299 is mandatory
5. If the requirements of Article 299 are not complied with, the officer executing the contract would be personally liable.
6. Quantum merit or quantum valebat (service or goods received): If the Government enjoys the benefit of performance by the other party to the contract, shall be bound to give recompense on the principles of Quantum merit or quantum valebat. The principles as laid down in Sections 65 to 70 (Quasi-contracts) of the Indian Contract Act, 1872 shall also apply in the Government Contracts also.
7. Depending upon the facts and circumstances, the Doctrine of Estoppel may also apply in the Government Contracts under Article 299.

State of West Bengal v B.K. Mondal & Sons

Union of India v Rallia Ram

The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v Sipani Singh and others

Promissory Estoppel

The Doctrine of Promissory Estoppel has been variously called ‘Promissory Estoppel’, ‘Requisite Estoppel’, ‘Quasi-Estoppel’ and ‘New Estoppel’. It is a principle evolved by equity to avoid injustice and though commonly named ‘Promissory Estoppel’, it is neither in the realm of Contract nor in the realm of Estoppel. The true principle of ‘Promissory Estoppel’ seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.

The Doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence.

M.P. Sugar Mills v State of U.P.

U.P. Rajkya Nirman Nigam Lt.d v Indure Pvt. Ltd. and others

The Liability of State in Torts / Suits and Proceedings – Art. 300

Article 300 of the Constitution of India lays down provisions that the State can sue and can be sued, and it is also liable for its and its employees’ torts.

300. Suits and proceedings.—

(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution—

• (a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
• (b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.

Buron v Denman

Hardial Singh v State of PEPSU

Defences of Sovereign Immunity

Sovereign Immunity – Position in England

Sovereign Immunity – Position in India

BEFORE COMMENCEMENT OF THE CONSTITUTION

Secretary of State (1861)

AFTER COMMENCEMENT OF THE CONSTITUTION

State of Rajasthan v Vidyawati

State of Gujarat v Memon Mahomed Haji Hasan

Smt. B.K.D. Patil v State of Mysore

The Vicarious Liability of State – Art. 300

Position in England

“Res non protest peccare” (The King can do no wrong) is an ancient and fundamental principle of the English law. King is regarded above all laws. This principle was also extended to his employees. Therefore, if a tort was committed by King’s servants in the course of their employment, the injured has no right to sue the King under the vicarious liability.

“Respondeat Superior” principle was not adopted in the case of the King. The Courts in various decisions criticized this exemption given to the King, opining that it was against the principles of equity, good conscience and justice. As a result of long discussions in the Courts and in the Parliament, at last, the Britain Parliament passed The Crown Proceedings Act, 1947. Now, the Crown can also be sued for his servants’ tortious acts committed in their course of employment under the principle of “Respondeat Superior“.

Position in India

 

Rup Ram v The Punjab State

Vidyawati v Lokumal

Kasturilal v State of U.P.

Pagadala Narasimham v The Commissioner & Special Officer, Nellore Municipality

State of Orissa v Padmalochan

State of M.P. v Chironji Lal

State of Punjab v Lal Chand Subharwal

Satyawati Devi v Union of India

State of Gujarat v Memon Mahomed

Credits: Source for the notes have been taken from various online websites as well as other guides and books such as www.hanumant.com, www.legalserviceindia.com, etc.