Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.

Original Jurisdiction of Supreme Court of India

Article 131 of the Constitution of India defines the original jurisdiction of Supreme Court of India.

The Supreme Court of India has Original jurisdiction in respect of following matters:

  1. between the Government of India and one or more States; or
  2. between the Government of India and any State  or States on one side and one or more other States on the other; or
  3. between two or more States,

if, and in so far as, the dispute involves any question (whether of law or of fact), on which the existence or extent of a legal right depends.

Suit against Railway over a commercial dispute: Continue reading

Photographing an accused in Police custody

Power of police in respect of photographing an accused.

Laws relating to Photographing an accused:

The source of power to take photographs of an accused during the course of investigation flows from Section 5 of the Identification of Prisoners Act, 1920, and not from the Code of Criminal Procedure, which is as under:

5. Power of Magistrate to order a person to be measured or photographed.– If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898), it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to the effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

As per Tamil Nadu Police Standing Order 646:

(1) The photographing of undertrial prisoners is generally forbidden. However, photographing of under-trial prisoners is permitted under certain condition as laid down in sections 4 and 5 of the Identification of Prisoners Act, 1920.

There is no specific provision in the Cr.P.C. authorising the Police to take photograph and above provisions cover this aspect of photographing an accused.

Can the Police be allowed to take photographs of the accused in the Police Station without Magisterial sanction?

 

View of Madras High Court in India:

If we concede that power, what will be the plight of women-accused? Can the Police take the accused to the scene of crime or anywhere else and take photographs of him? If the photographs leak to the Press will it not affect the evidentiary value of identification in the Test Identification Parade and Court?
……..Taking into consideration all this, we hold that photograph of an accused can be taken only in terms of Section 5 of the Identification of Prisoners Act, 1920 and the Police have no authority to do it on their own. We also deprecate the practice of taking the accused to the place of occurrence or place of discovery and taking photographs of him.

Photography of accused or scene of crime:

An Observation Mahazar can be relevent under Section 7 of the Evidence Act only if it states as to what the Police Officer sees and notes at the place of occurrence. A Police Officer cannot import into the Observation Mahazar and Rough Sketch the knowledge gained by him from witnesses much less from the accused because they are hit by Section 162 Cr.P.C. It is also not a healthy practice to draw such Observation Mahazars and take videograph of accused while asking him to re-enact the drama. Therefore, the Observation Mahazar [Ex.P7] is an inadmissible piece of evidence.

Madras High Court carved out an exception to above rule:

Photographing an accused for identification:

Mugshot for identification of arrestee

We are also conscious of the fact that the photographs of accused prisoners are essential for myriad reasons. A Division Bench of the Gujarat High Court in Mahendra Urjeevan Luhar v. State [(CDJ) 199 GHC 034] and the Madhya Pradesh High Court in Devendra v. JMFC Indore [2002 (3) MPLJ 337] have observed that there is rampant impersonation of accused during trial and even after conviction. Therefore, these Courts have directed that photographs of the accused should be filed along with the final report so that the menace of impersonation can be tackled. We are also agreeing with the view of these two High Courts and we suggest to the Investigating Agencies to take photographs of accused involved in serious cases by resorting to Section 5 of the Identification of Prisoners Act, 1920 after identification parades, if required, are held. This will ensure that the State also has record of persons and the mischief of impersonation can also be controlled.

[Source: K. Ramaraj v. State, (Madras, India)]

 

Note: It may however be noted that the conviction of accused was not upset by High Court due to overzealous efforts of Investigating Officer in photographing an accused even if the same were unwarranted and illegal.

Rule of Law and right of employment

Termination of service in rule of Law:

Termination without assigning any reason or opportunity of hearing is arbitrary and violative of equality clause in Article 14 of the Constitution:

Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing Continue reading

Appointment of non-legislator as Chief Minister of State in India

Chief Minister can hold office without being an elected representative of people!

Unelected representative in democracy:

A grievance was raised that respondent Nos. 1 and 2 were not qualified to be appointed as Chief Minister and Minister respectively as they were members of the Rajya Sabha (Upper House of Parliament) and thus disqualified under Article 164(4) read with Article 164(1) of the Constitution. The basic stand is that since they were members of the Rajya Sabha the requirement of their being elected to the State Legislative Assembly within a period of 6 months does not apply to them as they are already legislators of the Rajya Sabha.

There is no bar in Constitution prohibiting appointment of a person as Minister or Chief Minister, without being a member of the State Assembly. Continue reading

Legislative competence of Delhi Government to amend Court Fee Act

Scope of Legislative Competence of Delhi Government under NCT of Delhi Act

Delhi legislature is a subordinate legislature which draws its powers from Government of NCT of Delhi Act of 1991. Practically its powers are truncated to a vast extent.

A batch of petitions challenged the constitutionality and validity of the Court Fees (Delhi Amendment) Act, 2012 ―Delhi Act 11 of 2012 before Delhi High Court whereby the Legislative Assembly of the National Capital Territory of Delhi had amended the Court Fees Act, 1870 in force in the National Capital Territory of Delhi.

The argument against the amendments to the Court Fees Act 1870, which is a Central legislation, by the Legislative Assembly of the National Capital Territory of Delhi was that it is unconstitutional, arbitrary and ultra vires on account of lack of legislative competence, Government supported the view that the Legislative Assembly of Delhi has the competence to amend the Central Act as the power to legislate on the subject of fees taken in all courts, except the Supreme Court, vests exclusively in the State Legislature, vide Entry 3 of List II. Delhi High Court accepted the challenge on these grounds:

Court Fees (Delhi Amendment) Act, 2012 is invalid being beyond legislative competence:

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Judgment and court record is sacrosanct

Judgment and court record which has attained finality is sacrosanct.

A fact recorded in Judgment can not be challenged for the first time before Supreme Court.

Supreme Court is bound to accept the statement of the judges recorded in their judgment and, therefore, it cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars such an action and judicial decorum restrains it.
Supreme Court cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. Matters of judicial record are unquestionable and not open to doubt. Judges cannot be dragged into the arena. If the judges say in their judgments that something was done, said or admitted before them, that has to be the last word on the subject. Judges record is conclusive.

Procedure for error in court record:

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Power of President and Governors in India

Constitutional Status of President
as well as the Governors in India

India is a democratic country which has adopted British form of Parliamentary democracy by it’s Constitution. The President of India is head of Republic of India and Governor is head of the State/Province. But they are titular heads of the Government and ordinarily they can act only on the advice of the Council of Ministers, barring few exceptional situations. Following are relevant excepts from the judgment of Supreme Court of India.

Constitutional head or formal head of State:

(Per  A. N. Ray C.J. Palekar, Mathew, Chandrachud. Alagiriswami, JJ, at p. 833 & 836).

The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

The President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.

(Per Krishna lyer J. for himself and Bhagwati J. concurring)

(i) The argument about the oath of office of President to defend the Constitution is sometimes put forward by inti- ministerialist advocates. The President defends the Constitution not by denying its spiritual essence of Cabinet responsibility-indeed he subverts it that way-but by accepting as his Constitutional function what his responsible’ ministers have decided. Can a Judge, in fulfillment of the oath of his office, ignore all binding precedents and decide according to the ad hoc dictates of his uninformed conscience ? Tribhovandas’s case answers the point in the negative. If every functionary who takes the oath by the Constitution interprets it according to his lights, this solemn document would be the source of chaos and collusion and the first casualty would be the rule of law. Such mischief cannot merit juristic acceptance.
It is clear from article 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion or excepted from that field by this article. By way of contract see Article 163 which is the corresponding provision for Governors and which expressly excepts certain matters in which the Governor is, by or under the constitution, required to act in his discretion. There is no such exception in the case of the President. [858FG]

However, Article 75(3) makes the Council of Ministers responsible to the House of the People. If, therefore, the President acted contrary to advice, the ministers would either resign or, since the advice tendered reflected the view of the House of the People, they would be thrown out of office by the House of the People. For the same reason, no one else would then be able to form a government. The President would, therefore be compelled to dissolve the House. Apart from the technical difficulty of carrying out the many details of a general election in such a situation the President might have to dismiss the Ministry and install a caretaker’ government to co-operate with him in ordering a general election–the consequences of the election might be most serious. if the electorate should return the same government to power, the President might be accused of having sided with Opposition and thrown the country into the turmoil and expense of a general–election in a vain attempt to get rid of a Ministry that had the support of Parliament and the people. This would gravely impair the position of the President. [858G-H; 859A-B]

If we hold that in a conflict between the Ministry and the President, the President’s Voice should prevail in the last resort, either generally or even in a particular class of cases, this would mean the elimination to that extent of the authority of a Ministry which is continuously subject to control or criticism by the house of the People in favour of the authority of a President who is not so subject. It would thus result in a reduction of the sphere of responsible government. So important a subtraction must be justified by some express provisions in out constitution. [859C-D]
If the President, in a particular case, where his own views differ front those of his Ministers, ultimately accepts their advice in defence to a well understood convention, then even if the act should result in a breach of some fundamental right, or directive principle’ enunciated in the constitution, the responsibility will be that of the ministers and not of the President. [859D-E]
The President under the Indian Constitution is not a mere figure head. Like, the King in England he will still have the right to be consulted, to encourage and to warn. Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry’s first thoughts. The President can state all his objections to any purposed. course of action and ask his Ministers in Council, if necessary, to reconsider the matter. it is only in the last resort that he must accept their final advice. [859F-G]
The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has, rapport with the people and parties being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as ‘the right to be consulted, to warn and encourage.’ Indeed, Article 78 wisely said, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him. by law is in effect and in law carried on by his duly appointed mentors, i.e. the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role he is not a rival centre of power in any sense and must abide, by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Art. 74 hag no discretionary powers; the latter too has none. save in the tiny strips covered by Arts. 163 (2), 371A(1)(b) and (d), 371A(2)(b) and (f); VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be dispatched under Art. 356 may not, in the nature of things, be amenable to ministerial advice. [867F-H; 868A-C]

Source: Shamsher Singh v. State of Punjab,  AIR 1974 SC 2192, 1975 SCR (1) 814