All About 101st Constitutional Amendment

It has been noted by various eminent jurists like Dicey and Austin that for a society to survive, it has to constantly evolve itself with the changing times and make room for new generation to carry it forward in its own unique ways. This aspect of law making has been correctly elaborated upon by H.R. Khanna. J in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], where he inter alia states that the Constitution of India is also a social document which is dynamic in nature and contains room for experiment, without changing its basic structure i.e. India is a soveirgn, democratic, republic.

To keep up with the times, the Constitution (122nd Amendment) Bill of 2014 received presidential assent on 8th September, 2016 and became The Constitution (101st Amendment) Act of 2016. The said amendment will pave way for Goods and Service Tax, a concept which can be easily termed as paradigm shift in the arena of indirect taxation.

THE NEED:

One of the most distinguishing features of the proposed GST Model is its dual structure i.e. it will be levied by both Centre and the States. The Dual GST Model is aimed to be implemented through multiple statutes of different states, provided that the basic features of law such as chargeablilty, definition of taxable event, basis of classification etc. would remain the same. The Central GST and State GST would be paid to the accounts of Centre and States respectively.

Article 246 of Constitution talks about subject matter of laws made by Parliament and by the Legislature of the States. It confers exclusive power to Parliament and the States to make laws with respect to matters enumerated in List I (Union List) and List II (State List) of Schedule VII in the Constitution of India, respectively. In addition to this, the article also states that both the Parliament and the States have power to make laws with respect to matters contained in List III (Concurrent List) of Schedule VII of the Constitution.

In accordance with above, following entries in List I talk about taxation aspects of the Centre:

92. Taxes on the sale or purchase of newspapers and on advertisements published therein.
92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.
92B. Taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.
92C. Taxes on services
Similarly, following entries in List II talk about taxation policy in States:

52. Taxes on the entry of goods into a local area for consumption, use or sale therein.
53. Taxes on the consumption or sale of electricity.
54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I.
55. Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television.

As can be analysed from above, Centre does not have power to legislate on taxation of sale of goods except in case of inter-state sale whereas the States do not have the power to legislate on taxation of services as well as on purchase of goods for sale. The Constitution (101st Amendment) Act of 2016 therefore was passed to confer powers to both Centre and the States to make laws in respect of taxation of sale of goods and of services as well as of purchase of raw materials, respectively, by inclusion of article 246A in the Constitution.

246A.(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.

HOW WAS IT DONE:

Constitution of India is a code in itself and provides for its amendment as well. Article 246A was included in the Constitution by way of amendment procedure given in Article 368 of the Constitution:

368. Power of Parliament to amend the Constitution and procedure therefore:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS.

AMENDMENTS:

Apart from inclusion of Articles 246A and 269A, The Constitution (101st Amendment) Act of 2016 also provided for changes in Articles 248 (Residuary powers of Legislation), 249 (Power of Parliament to legislate with respect to a matter in the State List in the national interest), 268 (Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation), 268A (Service tax levied by Union and collected by the Union and the States), 269 (Taxes levied and collected by the Union but assigned to the States), 270 (Taxes levied and distributed between the Union and the States), 271 (Surcharge on certain duties and taxes for purposes of the Union), 288 (Exemption from taxation by States in respect of water or electricity in certain cases), 366 (Definitions), 368 (Power of Parliament to amend the Constitution and procedure therefor) as well as in Entry 84, List I and Entry 54, List II of Schedule VII. The Act also provides for omission of Entry 92, 92C, List I as well as Entry 52, List II of Schedule VII.

RATIFICATION BY THE STATES:

Since the Act provided for changes in Article 368 as well as of List I & II of Schedule VII, the amendment as done in accordance with Article 368(2), and required ratification of the Bill by the Legislature of not less than one half of the States by way of resolution before it was presented to the President for assent. The Act was ratified by the states of Assam, Bihar, Jharkhand, Himachal Pradesh, Chhattisgarh, Gujarat, Madhya Pradesh, NCT of Delhi, Nagaland, Maharashtra, Haryana, Telangana, Sikkim, Mizoram, Goa, Odisha, Puducherry, Rajasthan, Andhra Pradesh, Arunachal Pradesh, Meghalaya, Punjab and Tripura.

It is to be noted that the said act will come into force only by notification of the Central Government.

SOURCES:
Constitution of India, 1950
www.lawmin.nic.in

www.indiankanoon.org

Indian Constitution: The Making and its Features

One the most distinguishing features of the Indian Constitution has to be the manner in which it has been drafted and adopted. While Constitution of other countries was imposed on them by exercise of power, the Indian Constitution was made by people themselves, though by representatives in the Constituent Assembly.

HISTORICAL BACKGROUND:

1. Government of India Act, 1858: Making of the modern Constitution at the earliest began from 1858, when India first came under direct rule of the British Crown. The Govt. of India Act, 1858 marks as a starting point towards making of the Indian Constitution because it was dominated by principle of absolute imperial control, without any popular participation in the administration of the country. The powers of the Crown were to be exercised absolutely by Secretary State of India, assisted by an Executive Council comprising 15 members, which was composed exclusively of people from England, thereby resulting in no concern for public opinion by the State.

2. Indian Councils Act, 1861: The Act introduced only a minute element of popular participation by providing that the Council would include certain non-officio members as well which would then function as a Legislative Council. The inclusion of non-officio members in the Council however was not considered representative, as their functions was restricted only to consideration of legislative proposals made before it.

3. Indian Councils Act, 1892: The Act comprised of 2 major improvements from the previous act:

• Non-officio members were to be now elected by Chamber of Commerce and Local Bodies for State and Province respectively.
• The functions performed by the Council was now widened, and had the power to discuss the Budget as well as to address the questions to Executive.

4. Indian Councils Act, 1909 (Morley-Minto Reforms): Morley Minto reforms is considered as the first attempt at introducing a representative and popular element in the governance in the truest sense. The size of the Legislative Council was enlarged by increasing the number of non-officio members, making the official majority in the Council disappear. The Act also introduced an element of election by announcing separate electorate for Muslims.

5. Government of India Act, 1919: The Act is considered as a landmark in the constitutional development of India, which introduced substantive changes in the existing system of governance. The major features of the Act were:

• Dyarchy (dual government) in Provinces
• Relaxation of Central control over Provinces
• Increase in representative nature of Indian Government.

The Act of 1919 failed to fulfill the aspirations of the nation as the Government structure remained by and large Unitary, with Governor-General being the one through which the British Parliament discharged their duties.

6. Government of India Act, 1935: The Indian Constitution is, to an extent, based on the said Act, whose major features included:

• a. Separate electorate not only for Muslims, but also for Sikhs, Indian Christians and Anglo-Indians.
• Federal System of Governance
• Dyarchy at the Centre
• Bi-cameral Legislature
• Distribution of power.

7. Indian Independence Act, 1947: The said Act provided an interim Constitution to both India and then newly-formed Pakistan, until the two dominions established a Constituent Assembly and draft its own Constitution. The Act abolished the sovereignty and responsibility of British Parliament over India and the Governor General were now merely the Constitutional heads for the Government.

8. The Constituent Assembly began working on the making of the Indian Constitution on 9th December, 1946 and it received the signature of the President on 26th November, 1949. While the provisions relating to citizenship, elections, provisional Parliament and transitional provisions were given immediate effect i.e. from 26th November, the rest of the Constitution came into force on 26th January, 1950.

THE PREAMBLE:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

FEATURES OF THE CONSTITUTION:

Sovereign: means the independent authority of the State, and that it is not subject to the control of any other State or external power.

Republic: A government of the people and for the people, all source of authority as bestowed by the Constitution is the people of India.

Socialist: The principle means of production are under social ownership leading to progressive speeding up of production and equitable distribution of national wealth.

Secular: The State protects all religions equally and does not itself uphold any religion as the State religion. The question of secularism is not one of sentiments, but of law.

Democratic: The Constitution envisages democratic not only political, but also social meaning not only a democratic form of government but also a democratic society, infused with the spirit of justice, liberty, equality and fraternity.

• Other important features, inter alia, include:

1. It is a bag of borrowings: The Constitution is a curation of best features of Constitutions all around the world which is then modified to suit the conditions prevalent in India.

2. Partly rigid and partly flexible: As aptly put by H.R. Khanna, J. in the landmark judgement of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], the Constitution is dynamic in nature and therefore contains room for experiment, however the basic structure of the Constitution cannot be altered, that India is a Sovereign, Democratic, Republic.

3. Quasi-federal form of Government: Federalism essentially means two or more governments exercising concurrent jurisdiction over a territory, where none of the government is subordinate to the other. As laid down in the case of S.R. Bommai v. Union of India [(1994) 2 SCR 644], a state has a federal status but state qua the Union is quasi-federal and that India practises both unitary and federal principle of governance, depending on time and circumstances.

4. Universal Adult Franchise: One person one vote, one vote one value.

5. Cooperative Federalism: the state and centre work in harmony, with the spirit of togetherness and sharing the same goal: of all round development of the nation.

6. It is the longest constitution, comprising of 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments.

7. Supremacy of Constitution: The Indian Constitution is supreme in the land and nothing can override the Constitution. The Constitution also provides for redressal mechanism in case of breakdown in any of the state or Union.

SOURCES:
Introduction to the Constitution of India by D.D. Basu;
Case Material on Constitutional Law – I, Faculty of Law, University of Delhi.

The Curious Case of Law Schools vs. Bar Council of India

For the uninitiated, there are two modes of access to legal education, namely a 5-year Integrated Dual Degree programme which can be pursued after passing class 12^th and a 3-year full time LL.B degree programme which can be pursued after obtaining Bachelors’ Degree in any field. While there is an age bar of 21 years for the former and has in the recent years gained popularity amongst students, there is no age bar on the latter and is offered by limited Universities, making it less preferable for the students in comparison to the former.

University of Delhi is one of the few Universities in the country which offers 3-year full-time LL.B Degree. University’s Faculty of Law comprises of Campus Law Centre and Law Centre – I which function from the main campus area in New Delhi in the morning and afternoon respectively, and Law Centre – II, which is currently operating in evening from an off-campus college affiliated to University of Delhi. Recently Bar Council of India (BCI), making use of powers conferred to it by the Advocates’ Act, 1961, de-recognised Faculty of Law, University of Delhi, making it incapable of imparting legal education to its students. The grounds of de-recognition were, inter alia, the timings of Law Centre – II, which operated from 5.30 pm to 8.30 pm six days a week. BCI in its adverse report clearly stated that the University has flouted Rule 5, Schedule III of Rules of Legal Education, 2008, (General timing for conduction of courses in Academic Building), which reads as follows :

“Classes may be conducted between 8 a.m. to 7 p.m. in an Institution, which is not fully residential. However the Library may remain open till 10 p.m.”

In interest of students, the University, for the academic batch of year 2016-19 and onwards, has taken note of the same, and has changed the timings of Law Centre – II to 8.30 am to 1.30 pm and also made it function from the newly constructed building of Faculty of Law in the main campus. BCI, in view of above compliance, has provided one-time relaxation for the students for the academic batch of years 2014-17 and 2015-18, meaning thereby that these 2 batches with function from the old off-campus college building and the timings will remain 5.30 pm to 8.30 pm.

While the new arrangement apparently clears the deadlock between the University and BCI, it has created more problems than one for the stakeholders at Law Centre – II. The new batch functions in the morning in the main campus while 2^nd and 3^rd year students still function from off campus building in the evening, making it difficult for the teachers and official staff to manage two places. Even students are left with limited options of interaction and it is still to be seen how extra-curricular activities take place at two places at the same time.

Section 24 of The Advocates Act, 1961, inter alia, states that a person who has obtained a degree in law from any University in India or from any University outside the territory of India, recognised by Bar Council of India, is entitled to be admitted as an advocate, subject to fulfilment of other requirements as laid down in the section. Easily comprehended from the above, valid recognition of a University/College from BCI is the most important requisite for admission of a person as an advocate. However, many renowned Universities and Colleges are now being derecognised by BCI on one pretext or the other, leaving the future of thousands of students in the dark.

It is not only University of Delhi, but also Government Law College and other law schools in Mumbai, Kerala and Chennai which have come under the axe. The news of not just one, but several of them of such high repute getting de-recognised by BCI makes us doubt the autonomy of BCI, and more so because these law schools are functioning from much earlier than when BCI came into existence, and has produced so many eminent personalities which now contribute for the betterment of the nation.

There have been numerous petitions filed in the court of law which question the autonomy of BCI in this regard. Apart from Wali Nawaz Khan and Ors. v. Bar Council of India and Anr.  [W.P. (C) 7650/2016] in the High Court of Delhi, which challenges the constitutional validity of Rule 5, Schedule III of Rules of Legal Education, 2008, there are several other petitions filed before the High Courts of other states which challenge the validity of powers conferred to Bar Council of India with regard to inspection of law schools and other rules laid down by BCI. However, there is still a long time to go before new rules of land are laid in this regard. What was formed to uphold the standard of legal education in India has now become autonomous regulatory body which has been on the de-recognition spree without looking into the ground reality. At time where numerous seats in Judiciary and legal education sector are lying vacant, there is a need to boost the legal education and not demoralise students from pursuing law by putting them in constant fear that the University they are pursuing the law degree from is no more competent enough to impart them education.

It is to be noted that a degree in law is preferred not only by undergraduate students who want to make a career in litigation and judiciary, but also by people who want to complement their already chosen career path. Ignorance of law is no excuse in India, and a lot of engineers, medical practitioners and civil servants choose to study law after they have already graduated in their respective education fields simply to gain knowledge of the law, if not for anything else. Moreover, since there is no upper age bar for an advocate, there shouldn’t be an upper age bar to study law either. People should in fact be encouraged to study law to become aware about the politico-legal scenario prevalent in the country. A 3-year degree in law is essentially a post-graduate degree and while the idea of studying law through correspondence is not propagated, BCI should take note of the fact that like many other post-graduate degrees, people can manage their day jobs and education at the same time. In an era where night schools are opened and promoted to provide easy access to education to even those who are underprivileged, closing down of evening law colleges is against the very vision of India as a superpower.

SOURCES:

The Advocates’ Act, 1961;

Case Material on Jurisprudence – I: Legal Method, Indian Legal System and Basic Theory of Law, Faculty of Law, University of Delhi;

http://barandbench.com/pil-completely-change-bar-council-indias-powers-legal-education/

In a Courtroom: Who does What?

A place where Courts of Law are held are more commonly known as the Courtrooms. Provided hereunder are the people one can find in the Courts, and the work they do.

BENCH 

The panel of Judges in a Court is known as the Bench. The Judge in the Court might preside over the proceedings singly or there may be two or more Judges to look into the matters of the day in the particular Court. There are various types of Benches in the Indian Legal System:

a. Single Bench: As the name suggests, Single Bench comprises of a single Judge who sits to hear a matter in the Court.
b. Division Bench: When two judges jointly sit to preside over the proceedings of the Court, it is known as Division Bench.
c. Full Bench: Full Bench comprises of three or more Judges who jointly sit to decide the matters of the Court.
d. Constitution Bench: The Bench which comprises of five or seven Judges who preside over the matters in a court jointly, is known as Constitution Bench.

In the District-level Courts in India, a Judge sits in singly to preside over the matters.

The Judges in High Courts of respective States usually sit in Single or Division Benches to preside over the matters which comes to the Court, depending upon the importance of the cases. The Chief Justices of respective States, however, usually sit in Division Benches to hear the matters placed before them.

In the Hon’ble Supreme Court of India, the Judges sit in Division, Full and Constitution Benches. The Division Benches comprises of two or three Judges. The Vacation Judge in the Supreme Court, however sits singly to hear the matters.

When the Bench comprises of two or more Judges, the majority opinion counts and judgement of a larger Bench is binding on the smaller Benches of the Courts. An interesting trivia to note here is that the largest Bench constituted in the Hon’ble Supreme Court of India has been of thirteen judges in the case of Kesavananda Bharti v. State of Kerala and others [(1973) 4 SCC 225], the case which is more popularly known as “the case which saved the democracy of India”.

COUNSELS
The Counsels are the Advocates which represent the aggrieved, and Opposite Party in the Courtroom.

Counsel for the plaintiff/Complainant/Appellant: Plaintiff is a term used in Civil Courts for the aggrieved party who has filed a case. Complainant is the synonymous term used for aggrieved in the Criminal Courts. A person who files an appeal in the higher Court against a decision of the Lower Court is more often known as an Appellant.

Counsel for the Defendants/Accused/Respondent: In a Civil Court, a Defendant is the person against whom the case has been filed. The Accused is a synonym for Defendant in a Criminal Court. In an Appellant Court, the person who responds to the question of fact/law is then known as respondent.

Therefore, an Appellant can be either Plaintiff/Complainant or even Defendant/Accused, depending on who files the appeal.

In the District Courts, the Counsel for Plaintiff/Complainant stand towards the RIGHT side of the Bench and the Counsel for Defendant/Accused stand towards the LEFT of the Bench.

In High Courts, however, the Counsel for Plaintiff/Complainant in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the LEFT of the Bench and similarly, the Counsel for Defendant/Accused in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the RIGHT of the Bench.

There are no restrictions in the Hon’ble Supreme Court of India in this regard. The Counsels of the respective parties can stand anywhere in the Courtroom according to their own convenience.

In Criminal Courts throughout India, it is compulsory for the Complainants/Accused to be present in person in the Court during the proceedings. If the Complainant in person is not present in the Court, the Bench has the power of ordering dismissal of the case. If Accused in person is not present in the Court during the proceeding, the Court may order Bailablle/Non-Bailable warrants against him.

In Civil Courts however, the requirement of Plaintiffs/Defendants to be present before the Court in person is dispensed with. The Counsel of Parties can act in the Court on behalf of them.

COURT STAFF
Apart from the Bench and Counsels in a Courtroom, there is also Court Staff which assist in smooth functioning of the Courts.

a. Reader/Court Master: A Reader in a District Court and a Court Master in the High Courts and Supreme Courts of India, is an officer of the Court who occupies the seat just below the Judges’ Dias and assists in the conduct of Court proceedings.
b. Stenographer: A court reporter or court stenographer also called stenotype operator, is a person who transcribes spoken speech by the Bench into written form, to produce official transcripts of court hearings.
c. Ahlmad: Ahlmad or the File-keeper in common parlance is the person responsible for safe-keeping of files of different cases brought before the Hon’ble Court. An Ahlmad Room is a place where all the files of a particular Court are placed collectively.

NAIB COURT
Apart from the Bench, Counsel and the Court staff in a Courtroom, there also exist a few policemen, also called the Naib Court, to keep a record of the detainees and accused brought before the Court. This is to ensure that any order made by the Bench against the accused/detainees are immediately complied with. 

It is interesting to note that Naib Courts are specialities only of the Criminal Courts. Civil Courts cannot order an arrest of a person and therefore, there is no requirement of a Naib Court is those Courts.

Question: What happens if the Bench is on leave?

When the Judge is on a leave, as it happens often, the matters are adjourned for another day in a Civil Court. 

In case of Criminal Courts, and more specifically at District-level, Link Magistrates preside over the Court proceedings. Link Magistrates are the Judges placed at the same designation as the Magistrate in front of whom the case was originally placed. Criminal cases often involve rights as to life and liberty (art. 21 of Constitution of India) of an accused and therefore the Court does not stop functioning and the matters listed in the Court are automatically transferred to the Link Magistrates, who then decide the matters on behalf of the original Magistrate.

In High Courts and Supreme Court of India, the concept of linking of courts exist, but that is subject to application made by the parties on the basis of importance and the emergency of the case. The Courts can then operate at any time of the day to ensure justice is expediently imparted to the parties concerned. The case of Yakub Abdul Memon v. State of Maharashtra and Ors [W.P. (CRL.) No. 135 of 2015] is a classic example of Courts working even at midnight for ensuring justice to the parties.


SOURCES:

www.delhihighcourt.nic.in
www.indiankanoon.org