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I. FEDERAL SYSTEM:
SYNOPSIS:
1. Introduction
2. FEDERAL PRINCIPLE
3. ESSENTIAL FEATURES OF FEDERAL CONSTITUTION
4. NATURE OF INDIAN CONSTITUTION

1.Introduction:
According to traditional classification, Constitutions are either federal in nature or unitary in nature. In a
unitary Constitution, all the State powers are centralised in one Government, Central Government. In a
federal Constitution, the State powers are divided into two Governments, Federal Government and
Provincial Government. It has been the matter of debate among the scholars that whether the Constitution of
India is completely federal or unitary in nature. The fact is that Indian Constitution contains both features of
a federal Constitution and unitary Constitution.

2.FEDERAL PRINCIPLE:
 The term federation is derived from the Latin word ‘Foedus’ meaning ‘Treaty or Agreement’. Hence it is
the result of an agreement between two sets of governments, that is Central or Federal Government and
Provincial or State Government.
 K. C. Wheare, described the federal principle as “the method of dividing powers so that the general and
regional governments are each within a sphere co-ordinate and independent.”
 According to A.V. Dicey, who identified 3 leadings characteristics of a completely developed
federalism.
a. Distribution of powers among governmental bodies
b. Supremacy of the Constitution and
c. The authority of the Courts as the interpreters of the Constitution.

3.ESSENTIAL FEATURES OF FEDERAL CONSTITUTION

The following are the seven essential features of a federal Constitution
1. Division of Powers
2. Written Constitution
3. Rigid Constitution
4. Supremacy of the Constitution
5. Special Role of Judiciary
6. Dual Government Polity (Dual Administration)
7. Dual Citizenship
8. Bicameral Legislature
9. Equality of all Federating States

1. Division of Powers:
Perhaps the most essential requirement of a federal Constitution the division of powers between Federal and
State Governments. The powers and functions of Federal and State Governments must be well defined and
any sort of possible conflicts should be avoided. Each Government works within its separate and distinct
sphere. Under the Constitution of India this requisite is fulfilled with some exceptions. The Seventh
Schedule contains three Legislative Lists which enumerate subjects of administration, viz.,
1. The Union List;
2. The State List; and
3. The Concurrent List
The Union Government enjoys exclusive power to legislate on the subjects mentioned in the Union List. The
State Governments have full authority to legislate on the subjects of the State List under normal
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circumstances. Both the Centre and the State can’t legislate on the subjects mentioned in the Concurrent
List, The residuary powers have been vested in the Central Government.
According to V. N. Shukla, there are eight areas most of which appear to be exceptions to the above
requirement.
1. Parliament may make laws on a subject in the State List if it is so empowered by a resolution passed with
two thirds majority in the Rajya Sabha.
2. Parliament may make laws on a subject in the State List during the period of emergency.
3. The President, who is the head of the Union Executive may proclaim State Emergency, and all the powers
of the state Government, except those of the High Court, may be exercised by the Union Executive.
4. The President, who is the head of the Union Executive may proclaim State Emergency, and he may issue
directions to reduce the salaries of Union as well as state Government servants, and the money bills passed
by state Legislatures are subject to the control of the Centre.
5. Under arts. 256 and 257, Union Executive may issue certain administrative directions to the State
executive, which are binding on the latter.
6. Parliament may, unilaterally, alter the boundaries of any state or change the name of any state.
7. Bills passed by state legislatures may be reserved for the assent of the President.
8. Governors of states are appointed by the President and they hold office during his pleasure.

2. Written Constitution: Written constitution is an essential feature of a federal state. The powers and
functions of the government, the rights and liberties of the citizens also incorporated. The relation between
the citizens and the government is also clearly mentioned. In the absence of a written constitution, conflicts
may arise between the centre and the states. This makes the written constitution highly essential for the
successful working of the federation. Indian Constitution fulfils this basic requirement of a federal
Constitution.

3. Rigid Constitution: The constitution of a federal government is not only written but also rigid in its
nature. When the constitution is rigid, there will be no frequent changes. But the consent of both the centre
and the state is necessary for changing its provisions. If this arrangement is not made, either the centre or
states may try to change the provisions of the constitution for their selfish ends.
The Indian Constitution is largely a rigid Constitution. All the provisions of the Constitution concerning
Union-State relations can be amended only by the joint actions of the State Legislatures and the Union
Parliament. Such provisions can be amended only if the amendment is passed by a two-thirds majority of the
members present and voting in the Parliament (which must also constitute the absolute majority of the total
membership) and ratified by at least one-half of the States.

4. Supremacy of the Constitution: The constitution of a federal state is supreme and powerful. The centre
and the states get their powers from the constitution. They fulfill their obligations and exercise authority
within the limitations imposed by the constitution. They are not allowed to surpass their jurisdiction of
authority. The judiciary declares the acts passed either by the centre or by the states, if they are against the
constitution, as unconditional. Neither the centre nor the states are allowed to exceed their authority as
conferred by the constitution

5. Special Role of Judiciary: This requirement includes two elements:

1. Existence of provisions for Judicial Review;
2. Judicial Independence Under a federal Constitution, the Constitution is supreme, and all organs must act
in conformity with the provisions of the Constitution. Judiciary, in a federal State is the guardian of the
Constitution, and has the power of judicial review.
In India, the Constitution has provided for a Supreme Court and every effort has been made to see that the
judiciary in India is independent and supreme. The Supreme Court of India can declare a law as
unconstitutional or ultra vires, if it contravenes any provisions of the Constitution.

6. Dual Government Polity (Dual Administration): In an ideal federation, each individual gets a double
citizenship—one common uniform citizenship of the whole state (Federation) and the second of the province
or state of which he is the resident.
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In India this requirement is not fulfilled. The objective of deviating from this requirement is obvious. The
framers of our Constitution did not want to create a feeling of separation between our citizens by making
them citizens of different states also. A single citizenship creates a feeling of oneness which is very
important for the unity of our country.
UNITARY STATE: A unitary state is a state governed as a single power in which the central government is
ultimately supreme. The central government may create or abolish administrative divisions. Such units
exercise only the powers that the central government chooses to delegate. They only act as the agents of the
central government.

7. Dual Citizenship: In the United States, each individual enjoys both the citizenship of the United States as
well as of the state of which he is the native resident.
In India this requirement is not fulfilled. The objective of deviating from this requirement is obvious. The
framers of our Constitution did not want to create a feeling of separation between our citizens by making
them citizens of different states also. A single citizenship creates a feeling of oneness which is very
important for the unity of our country.

8. Bicameral Legislature: A bicameral system is considered essential in a federation because it is in the

Upper House alone that the units can be given equal representation. The Constitution of India also provides
for a bicameral Legislature at the Centre consisting of Lok Sabha and Rajya Sabha. While the Lok Sabha
consists of the directly elected representatives of people, the Rajya Sabha mainly consists of representatives
elected by the State Legislative Assemblies. Thus, Lok Sabha gives representation to the Union through the
representatives of the entire population of the country, while Rajya Sabha gives representation to the states
through their representatives. However, all the States have not been given equal representation in the Rajya
Sabha.

9. Equality of all Federating States: One of the key underlying principle of the federation is to treat all
states or units of the federation equal, without any consideration for the differences in their size, population
and resources. It is because of this requirement that all states are given equal seats in one of the two houses
of the central legislature and each enjoys equal rights and autonomy.

4.NATURE OF INDIAN CONSTITUTION

 The framers of our Constitution preferred to use the word ‘Union’ instead of the word ‘Federal’. This is
because a federal State is made by joining several States and is more fragile than ‘union’ as envisaged by
the framers of our Constitution.
 India is a Union of States. Here ‘union’ refers to oneness. Instead of being an association of several
States, India is one State which is demarcated into several states for administrative convenience.
Therefore it is more solid than a federal State. As is India is country of great diversity in many respects,
and therefore, it is very difficult to bring them together. If India were to be made a federal State, within a
very short time it would have fallen apart. But because of diversity and also of size of the country, it was
unimaginable to have a unitary government.
 The size of the country would have made it difficult for a single government to govern the entire
country. Further, each part of the country has its own problems and requirements. Same law cannot be
suitable for all parts of the country. Therefore, it is imperative that Indian Constitution has to be federal
in nature, so that the diverse needs of different parts are properly and adequately addressed. But at the
same time, it is also necessary that there must be unification to keep the country from dividing.
 Therefore, our Constitution is a federal Constitution with strong unifying tendency. Therefore, some
authors such as K. C. Wheare prefer to describe the Indian Constitution as a quasi federal Constitution.
Quasi federal refers to a system of government where the distribution of powers between the center and
the state are not equal.
 K. C. Wheare, therefore, classifies India as “a unitary state with subsidiary federal principles rather than
a federal state with subsidiary unitary principles.” Sir Ivor Jennings feels that India is a federation with
strong centralizing tendency. As per Norman D. Palmer, India is a federation, although it has many
distinctive features, which seem to modify the essentially federal nature of the State. We may say that
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Indian Constitution has adopted the federal model, but has made several changes to that model to suit the
peculiar requirements of our country.

II. CENTRE-STATE RELATIONS IN INDIA

SYNOPSIS:
1. Introduction
2. CENTRE STATE LEGISLATIVE RELATIONS
3. CENTRE STATE ADMINISTRATIVE RELATIONS
4. CENTRE-STATE FINANCIAL RELATIONS
5. CO-OPERATIVE FEDERALISM
6. RECOMMENDATIONS OF THE SARKARIA COMMISSION

1. Introduction:
 Our Constitution is one of the very few that has gone into details regarding the relationship between the
Union and the States. A total of 56 Articles from Article 245 to 300 in Part XI and XII are devoted to the
State-Centre relations. Part XI (Articles 245-263) contains the legislative and administrative relations
and Part XII (Articles 246-300) the financial relations. By going into great details of the relations, the
Constitution framers hope to minimize the conflicts between the centre and the states. By and large, the
confrontations between the two have been minimal.
 Thus the constitution contains elaborate provisions to regulate the various dimensions of the relations
between the centre and the states. The relations between centre and state are divides as:
1. Legislative relations(245-255)
2. Administrative relations (256-263)
3. Financial relations(264-293)

2. CENTRE STATE LEGISLATIVE RELATIONS(245-255):

 Arts. 245 to 255 of the Constitution deal with this aspect. The Constitution makes a 2- fold distribution
of legislative powers from a point of view of:
i) EXTENT OF LEGISLATIVE POWERS( territory) and
ii) Extent as to Subject-Matter.
i) EXTENT OF LEGISLATIVE POWERS( Territorial jurisdiction):
 Territorial Extent (Article 245):
o The division of powers between Parliament and State Legislatures to legislate by reference to
territorial limits is defined by Art. 245. The subject-matters with respect to which those powers
can be exercised are enumerated in the several entries divided into 2 groups as 3 lists of the 7th
Schedule.
o Art. 245(1) of the Constitution says that subject to the provisions of this Constitution,
 the Parliament and the State Legislature may make laws for the whole or any part
of the territory of India or the State respectively.
 The Parliament may make laws for the territory of India which includes the
territory of States and the Union Territories and such other territory which may be
acquired.
o Art. 245(2) of the Constitution empowers Parliament to give extra-territorial operations to its
statutes. In other words, the laws made by Parliament may include persons residing outside India
and their property situated anywhere in the world.
o For example, the government can proceed under the Hindu Marriage Act against a Hindu who
returns to India after marrying a second wife in a foreign country for the Act applies to all Hindus
who are domiciled in India but who may be outside India for the time being.
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 Territorial Nexus
o Art. 245(1) provides that a State Legislature may make laws for the territory of that State. The
State cannot make extra-territorial laws except when there is sufficient connection or nexus
between the State and the object i.e., subject-matter of legislation
o - Held in the case of A. H. Wadia vs. CIT (Income tax Commissioner, Bombay)

Caselaw: State of Bombay vs. R.M.D.C.

In this case, the Bombay State levied a tax on lotteries and prize competitions in the State. The tax
was extended to a newspaper printed and published in Bangalore but had wide circulation in
Bombay. The Hon'ble Supreme Court held that a sufficient territorial nexus exist for the State of
Bombay to tax the newspaper.

o The territorial jurisdiction of the Parliament is however subject to the following provisions of the
Constitution:law making power not absolute
i) Art. 240(2) (Dadar and Nagar Haveli ,Daman and Diu,Andman Nicobar,Lakshdweep presedient
Can make law)
ii) Para 5 of the 5th Schedule(governor can say nolaw not apply )
iii) Para 12(1)(b) of the 6th Schedule(trible area specific law not applicable)

 Doctrine of Occupied Field: The Doctrine of Occupied Field has to be applied only to the Entries in
List III or Concurrent List as if the matter is within the exclusive competence of the State Legislature
i.e., List II then the Union Legislature is prohibited to make any law with regard to the same and if the
matter is within the exclusive competence of the Union it becomes a prohibited field of the State
Legislatures.

ii) Extent as to Subject-Matter.

The legislative relations between the centre and the states determined in accordance with the provisions of the
Article 246 of the Constitution.
The Constitution divides legislative authority between the Union and the States in three lists- the Union List, the
State List and the Concurrent List.
1. The Union list consists of 100 items. The Union Parliament has exclusive authority to frame laws on subjects
enumerated in the list. These include foreign affairs, defence, armed forces, communications, posts and
telegraph, foreign trade etc.
2. The State list consists of 61 subjects on which ordinarily the States alone can make laws. These include public
order, police, administration of justice, prison, local governments, agriculture etc.
3. The Concurrent list comprises of 52 items including criminal and civil procedure, marriage and divorce,
economic and special planning trade unions, electricity, newspapers, books, education, population control and
family planning etc. Both the Parliament and the State legislatures can make laws on subjects given in the
Concurrent list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of conflict
between the law of the State and Union law on a subject in the Concurrent list, the law of the Parliament
prevails.
U>C>S
iii. Residuary Powers of Legislation (246)
The constitution also vests the residuary powers (subjects not enumerated in any of the three Lists) with
the Union Parliament. The residuary powers have been granted to the Union contrary to the convention
in other federations of the world, where the residuary powers are given to the States. However, in case of
any conflict, whether a particular matter falls under the residuary power or not is to be decided by the
court.

Caselaw: UoI vs. Dhillon

In this case, the vires of the term ‘net wealth’ used in the Wealth Tax Act, 1952 was challenged. The
Hon'ble Supreme Court by a majority of 4:3 upheld the validity of the impugned legislation.
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 Principles of Interpretation of Lists

The powers of Centre and States are divided. They cannot make laws outside their allotted subjects. It is
true that a particular subject falls in the sphere of one or the other government. This duty in a federal
constitution is vested in the Supreme Court of India.
The Supreme Court have evolved the following principles of interpretation in order to determine the
respective power of the Union and the State under the three lists:

1. Predominance of the Union List:- The opening words of Art.246 expressly secure the predominance
of the Union List over the State List and the Concurrent List and that of the concurrent list over the State
list. Thus in case of overlapping between the Union and the State List it is the Union List which is to
prevail over the State List. In case of overlapping b/w the Union and the Concurrent List, it is again the
Union List which will prevail. In case of conflict between the Concurrent List and State List, it is the
Concurrent List that shall prevail.

2. Each Entry to be Interpreted Broadly:- Subject to the overriding predominance of the Union List,
entry in the various lists should be interpreted broadly.
In Calcutta Gas Ltd. v/s State of West Bengal:- the Supreme Court said that the “widest possible” and
“most liberal” interpretation should be given to the language of each entry. The Court should try, as far
as possible, to reconcile entries and to bring harmony between them. When thi s is not possible only then
the overriding power of the Union Legislature applies and the federal power prevails

3.Colourable Legislation: The Constitution distributes the legislative powers between Parliament and
State legislature and they are required to act within their respective spheres. This Doctrine is based upon
the Maxim that you cannot do indirectly what you cannot do directly - as held in Gajapati Narayan
Deo vs. State of Orissa.
 Caselaw: Asstt. Director of Inspection Investigation vs. A.B. Shanthi In this case, the Hon'ble
Supreme Court has ruled that when a statute is challenged on the ground of colourable legislation,
what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the
legislative competence of the Legislature in question, in substance and in reality it covers a field
which is outside its legislative competence.

4. Doctrine of Pith and Substance:- Pith means "true nature" or "essence" and substance means the
essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out
the true nature of a statute. This doctrine is widely used when deciding whether a state is within its rights
to create a statute that involves a subject mentioned in Union List of the Constitution.

The basic idea behind this principle is that an act or a provision created by the State is valid if the true
nature of the act or the provision is about a subject that falls in the State list.
o The case of State of Maharashtra v/s F N Balsara AIR 1951 illustrates this principle very
nicely. In this case, the State of Maharashtra passed Bombay Prohibition Act that prohibited the
sale and storage of liquor. This affected the business of the appellant who used to import liquor.
He challenged the act on the ground that import and export are the subjects that belong in Union
list and state is incapable of making any laws regarding it. SC rejected this argument and held
that the true nature of the act is prohibition of alcohol in the state and this subject belongs to the
State list.

 SPECIAL CIRCUMSTANCES: In the following special circumstances, the Constitution has expanded
the powers of the Parliament to make laws in respect of state matters:
a) In the National Interest (Article 249) If the Rajya Sabha declares by a resolution supported by not
less than 2/3 of its members present and voting, that it is necessary or expedient in the national interest
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that the Parliament should make laws with respect to any matter enumerated in the State List (Article
249). After such a resolution is passed, Parliament can make laws for the whole or any part of the
territory of India. Such a resolution remains in force for a period of 1 year and can be further extended
by one year by means of a subsequent resolution.

b) Under Proclamation of National Emergency (Article 250) Parliament can legislate on the subjects
mentioned in the State List when the Proclamation of National Emergency is in operation. However, the
laws made by the Parliament under this provision shall cease to have effect on the expiration of a period
of six months after the Proclamation has ceased to operate, except as respects things done or omitted to
be done before the expiry of the said period.

c) By Agreement between States (Article 252) The Parliament can also legislate on a State subject if
the legislatures of two or more states resolve that it is lawful of Parliament to make laws with respect to
any matter enumerated in the State List relating to those State. Thereafter, any act passed by the
Parliament shall apply to such states and to any other state which passes such a resolution. The
Parliament also reserves the right to amend or repeal any such act.

d) To Implement Treaties (Article 253) The Parliament can make law for the whole or any part of the
territory of India for implementing any treaty, international agreement or convention with any other
country or countries or any decision made at any international conference, association or other body.
Any law passed by the Parliament for this purpose cannot be invalidated on the ground that it relates to
the subject mentioned in the State list.

e) Under Proclamation of President’s Rule (Art.356) The President can also authorize the Parliament
to exercise the powers of the State legislature during the Proclamation of President’s Rule due to
breakdown of constitutional machinery in a state. But all such laws passed by the Parliament cease to
operate six months after the Proclamation of President’s Rule comes to an end.

3. CENTRE STATE ADMINISTRATIVE RELATIONS

The administrative jurisdiction of the Union and the State Governments extends to the subjects in the Union
list and State list respectively. The Constitution thus defines the clauses that deal with the administrative
relations between Centre and States.
I. CENTRE STATE RELATIONS DURING NORMAL TIES
1. Executive Powers of State to be Exercised in Compliance with Union Laws (Article 256)
Executive power of every State shall be so exercised as to ensure compliance with the laws made
by Parliament and any existing laws which apply in that State. The executive power of the Union shall
extend to the giving of such directions to a state as may appear to the Government of India to be necessary
for that purpose.

2. Control of the Union Over States in Certain Cases (Article 257)

The executive power of every state shall be so exercised as not to impede or prejudice the
exercise of the executive power of the Union. The executive power of the Union shall extend to giving of
such directions to a state as may appear to the Government of India to be necessary for that purpose.
In short, the Union Government can issue directions to the state Government even with regard to the
subjects enumerated in the state list.

 Maintain Means of Communication of National or Military Importance [Art. 257(2)]

The Union Government can give directions to the state with regard to construction and maintenance of
the means of communication declared to be of national or military importance.
 Protection of the Railways [Art. 257(3)]
Union can issue State Governments necessary directions regarding the measures to be taken for the
protection of the railways within the jurisdiction of the State. It may be noted that the expenses incurred
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by the State Governments for the discharge of these functions have to be reimbursed by the Union
Government.
Illustrations
1. ‘Communications’ is a state subject. Under Article 257(2) the Union Government is empowered to
issue directions to a state to construct or maintain means of communications which may be declared to
be of national or military importance.
2. ‘Railways’ is a Union subject. ‘Police’, including railway police is a state subject. Under Article
257(3) the Union Government may give directions to a State as to the measures to be taken for the
protection of railways in the State.

3. Delegation of Union’s Function to State [Article 258]

 Through Executive Channel [Article 258(1)]
The President of India can entrust to the officers of the State certain functions of the Union Government.
However, before doing so the President has to take the consent of the state Government.

 Through Legislative Channel [Article 258(2)] But the Parliament can enact law authorizing the
Central Government to delegate its function to the State Governments or its officers irrespective of the
consent of such State Government.
 Delegation of State’s Function to Union [Article 258-A] On the other hand, a State may confer
administrative functions upon the Union, with the consent of the Union only.

4. To Ensure Welfare of Scheduled Tribes in the States

Union can direct the State Governments to ensure execution of schemes essential for the welfare of the
Scheduled Tribes in the States.

5. To Secure Instruction in the Mother Tongue at the Primary Education

Union can direct the State Governments to secure the provision of adequate facilities for instruction in the
mother-tongue at the primary stage of education to children belonging to linguistic minority groups.

6. To Ensure Development of the Hindi Language

Union can direct the State Governments to ensure the development of the Hindi language.

7. To Ensure Government of a State in Accordance with the Constitution

Union can direct the State Governments to ensure that the government of a State is carried on in accordance
with the provision of the Constitution. If any State failed to comply with any directions given by the Union
in exercise of its executive power, then President may hold that, a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus he
may proclaim President’s Rule in that State.

8. Appointment of High Dignitaries

Union has major say in appointment and removal of Governor and appointment of Judges of High Court
and Members of State Public Service Commission.

9. All India Services

The presence of the All India Services – the Indian Administrative Services, Indian police Services – further
accords a predominant position to the Union Government. The members of these services are recruited and
appointment by the Union Public 16 Centre-State Relations in India Service Commission. The members of
these services are posted on key posts in the states, but remain loyal to the Union Government.

10. Union to Adjudicate Inter-State River Water Disputes (Article 262) The Parliament has been vested
with power to adjudicate any dispute or complaint with respect to the use, distribution or control of the
waters of, or in any interstate river or river-valley. In this regard, the Parliament also reserves the right to
exclude such disputes from the jurisdiction of the Supreme Court or other Courts.
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II. CENTRE STATE RELATIONS DURING EMERGENCIES

1. During Proclamation of National Emergency
During a Proclamation of National Emergency, the power of the Union to give directions extends to the
giving of directions as to the manner in with the executive power of the State is to be exercised relating to
any matter.

2. During State Emergency (Under President’s Rule)

The State Governments cannot ignore the directions of the Union Government, otherwise the President can
take the action against the Government of the State stating that the administration cannot be carried on the
accordance with the provisions of the Constitution and thus can impose President's rule on the State. In such
an eventuality the President shall assume to himself all or any of the functions of the state Government.

3. During Proclamation of Financial Emergency

During a Proclamation of Financial Emergency, Union can direct the State Governments to observe certain
canons of financial propriety and to reduce the salaries and allowances of all or any class of person serving
in connection with the affairs of the Union including the Judges of the Supreme Court and High Courts.
Union also requires all Money Bills or Financial Bills to be reserved for the consideration of the President
after they are passed by the Legislature of the State. It is thus, evident that in the administrative sphere the
States cannot act in complete isolation and have to work under the directions and in cooperation with the
Centre.

4. CENTRE-STATE FINANCIAL RELATIONS

In any federal State, the problem of allocation of resources is always difficult. This is because two
authorities are raising funds from the same set of tax-payers. This problem may be avoided if it is possible to
allocate separate fields of taxation for each authority. But such allocation often does not fit the economic and
financial requirements of each authority.

 Article 268 to 293 deals with the provisions of financial relations between Centre and States. Indian
Constitution has made elaborate provisions, relating to
i. The distribution of the taxes as well as non-tax revenues;
ii. The power of borrowing,
iii. Provisions for grants-in-aid by the Union to the States.

 The Constitution divides the taxing powers between the Centre and the states as follows:
1. The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List.
2. State legislatures have exclusive power to levy taxes on subjects enumerated in the State List.
3. Both, Parliament and state legislature, may levy taxes on the subjects enumerated in Concurrent List.
4. Residuary power of taxation lies with Parliament only.

i. The distribution of the taxes as well as non-tax revenues;

1. Duties Levied by the Union but Collected and Appropriated by the States (Article 268)
This includes stamp duties on bills of exchange, cheques, promissory notes, policies of insurance, transfer of
shares. The proceeds of these duties levied within any state do not form a part of the Consolidated Fund of
India, but are assigned to that state

2. Taxes Levied as Well as Collected by the Union, but Assigned to the States (Article 269)
These include taxes on the sale and purchase of goods in the course of inter-state trade or commerce or the
taxes on the consignment of goods in the course of interstate trade or commerce. Newspapers are exempted
from taxation.
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 Levy and Collection of GST in the Course of Inter-State Trade or Commerce (Art 269-A): Goods
and Services Tax on supplies in the course of inter-state trade or commerce shall be levied and collected
by the Government of India. Such tax shall be apportioned between the Union and the states. The
amount apportioned to a state shall not form part of the Consolidated Fund of India.

3. Taxes Levied and Collected by the Union and Distributed between Union and the States (Article
270) All
a. taxes and duties under the Union List, except those falling under Articles 268, 269 and 269-A;
b. surcharge on taxes and duties referred to in Article 271
c. any cess levied for specific purposes under any law made by the Parliament;
d. tax collected by the Union under Article 246-A; and
e. tax levied and collected by the Union under Article 246-A(2) and Article 269-A which has been used for
payment of tax levied by the Union under Article 246-A shall be levied as well as collected by the Union.
But their proceeds shall be divided between the Union and the States in a certain proportion, in order to
effect on equitable division of the financial resources.

5. Surcharge on Certain Duties and Taxes for Purposes of the Union (Article 271): Parliament may at
any time increase any of the duties or taxes referred in those articles by a surcharge for purposes of the
Union The whole proceeds of any such surcharge shall form part the Consolidated Fund of India.

ii. GRANTS-IN-AID
Besides sharing of taxes between the Centre and the States, the Constitution provides for Grants-in-aid to the
States from the Central resources. There are two types of grants:

1. Statutory Grants These grants are given by the Parliament out of the Consolidated Fund of India to such
States which are in need of assistance. Different States may be granted different sums. Specific grants are
also given to promote the welfare of scheduled tribes in a state or to raise the level of administration of the
Scheduled areas therein (Art.275).

2. Discretionary Grants Centre provides certain grants to the states on the recommendations of the
Planning Commission which are at the discretion of the Union Government. These are given to help the state
financially to fulfil plan targets (Art.282).

iii. EFFECTS OF EMERGENCY ON FINANCIAL RELATIONS

1. During National Emergency The President may, by order, direct that all provisions regarding division of
taxes between Union and States and grants-in-aids remain suspended. However, such suspension shall not
go beyond the expiration of the financial year in which the Proclamation ceases to operate.

2. During Financial Emergency Union can give directions to the States:

1. To observe such canons of financial propriety as specified in the direction.
2. To reduce the salaries and allowances of all people serving in connection with the affairs of the State,
including High Courts judges.
3. To reserve for the consideration of the President all money and financial Bills, after they are passed by the
Legislature of the State.

iv. FINANCE COMMISSION

Although the Constitution has made an effort to allocate every possible source of revenue either to the
Union or the States, but this allocation is quite broad based. For the purpose of allocation of certain sources
of revenue, between the Union and the State Governments, the Constitution provides for the establishment
of a Finance Commission under Article 280. According to the Constitution, the President of India is
authorized to set up a Finance Commission every five years to make recommendation regarding distribution
of financial resources between the Union and the States.
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 Constitution of the Commission

Finance Commission is to be constituted by the President every 5 years. The Chairman must be a person
having ‘experience in public affairs’. Other four members must be appointed from amongst the
following:-
1. A High Court Judge or one qualified to be appointed as High Court Judge;
2. A person having knowledge of the finances and accounts of the Government;
3. A person having work experience in financial matters and administration;
4. A person having special knowledge of economics.

 Functions of the Commission The Finance Commission recommends to the President as to:
1. The distribution between the Union and the States of the net proceeds of taxes to be divided between
them and the allocation between the States of respective shares of such proceeds;
2. The principles which should govern the grants-in-aid of the revenue of the States out of the
Consolidated Fund of India;
3. The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Panchayats and Municipalities in the State;
4. Any other matter referred to the Commission by the President in the interest of sound finance,

5. CO-OPERATIVE FEDERALISM
Though there is a division of functions between the Centre and the units in a federation and the
respective areas of competence of each is earmarked, yet it would not be correct to assume that the
various governments act in water-tight compartments as these governments acting side by side in the
same country create many types of relations amongst them and also due to the coming into existence of
many instrumentalities to promote inter-governmental co-operation.
With the passage of time, the concept of competitive federalism which existed during the formative
stages of development of the 3 older Federations of USA, Canada and Australia in which the dominant
operative concept was that of competitive federalism which denoted a spirit of competition and rivalry
between the Centre and the States has given way to cooperative federalism which is a subset of
federalism where national, state and local governments interact cooperatively and collectively to solve
common problems promoted by the following 3 powerful factors:
i) The exigencies of war when for national survival national effort takes precedence over fine points of
Centre-State division of powers;

ii) Technological advances means making of communication faster;

iii) The emergence of the concept of a social welfare state in response to public demand for various
social services involving huge outlays which the governments of the units could not meet by themselves
out of their own resources.
The concept of co-operative federalism helps the federal system with its divided jurisdiction to act
in unison. It minimizes friction and promotes co-operation among the various constituent governments
of the federal union so that they can pool their resources to achieve certain desired national goals.
Money has been one of the strongest motive forces in the emergence of this concept. The Centre
with its vast financial capacity is always in a position to help the units which always need it and this
brings the two levels of government closer.

 Co-operative Federalism in India:

In India, Federalism is an indestructible union of destructible states. It was perceived at the floor of the
constituent assembly that states must be an integral part of India denying any right to secede. Therefore,
a need for a strong union was anticipated and the constitution gave dominant power to the central
government. However, adequate powers were also vested with the states in order to administer and
govern the local government with much efficacy such arrangements have been exhibited in the 3 Lists of
union List, Concurrent List and State List in the 7th Schedule.
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 How it works in India: The spirit of co-operative federalism in India is observed by following:
1. Distribution of powers
2. Supremacy of the Constitution
3. A written Constitution
4. Rigidity &
5. authority of courts.
 Under this arrangement in the constitution, Centre has got dominant power as evident from the
following:
a) States must exercise their executive power in compliance with the laws made by the Central
Government and must not impede on the executive power of the Union within the States.
b) Centre can even usurp the legislative discretion of State with the permission of Rajya Sabha.
c) Governors are appointed by the Central Government to oversee the States.
d) the Centre can even takeover the executive of the States on the issues of national security or
breakdown of Constitutional machinery of the State.
Examples: Provisions for enabling Parliament to legislate in the State area on the request of two or more
states, the scheme of financial relations between the Centre and the States, grants-inaid u/Art. 282, the
scheme of Centre-State administrative relationship along with provisions for all-India services are some
of the instruments designed to promote inter-governmental co-operation and introduce the necessary
flexibility in an otherwise rigid federal system.

6. RECOMMENDATIONS OF THE SARKARIA COMMISSION

o The agitation for State autonomy led to the creation of Sarkaria Commission by the Central
Government to recommend changes in Centre-State relationship. The Commission submitted its
report in 1988.
o The founding fathers of the Indian Constitution were deeply concerned about ensuring the unity
and integrity of the country. They were aware of the forces of disruption and disunity working
within the country. These dangers at the time of independence could be handled only by a strong
government at the Centre. Therefore, the framers of the Constitution assigned a predominant role
to the Centre.
o At the same time they made provisions for the establishment of a co-operative federalism. The
working of the Indian federation during the last five decades prior to Sarkaria Commission
clearly showed that the relations between the Centre and the States have not always been cordial.
o The clamour for more autonomy led to the constitution of Sarkaria Commission in 1983 which
was asked to examine and review existing arrangements between the Centre and the States in all
spheres and recommend appropriate changes and measures.
o The Sarkaria Commission’s charter was to examine the relationship and balance of power
between state and central governments in the country and suggest changes within the framework
of Constitution of India. In spite of the large size of its reports – the Commission recommended,
by and large, status quo in the Centre-State relations, especially in the areas, relating to
legislative matters, role of Governors and use of Article 356.
 The following are the important recommendations of Sarkaria Commission.

1. ROLE OF GOVERNOR :
 The Governor should be eminent in some walk of life and from outside the state. He should be a
detached figure without intense political links or should not have taken part in politics in recent past.
Besides, he should not be a member of the ruling party. He should be appointed after effective
consultations with the Chief Minister of the State, Vice President and Speaker of the Lok Sabha by
the PM before his selection.
 As far as possible, the governor should enjoy the term of five years. He should be removed before his
tenure only on the grounds as mentioned in the Constitution or if aspersions are cast on his morality,
dignity, constitutional propriety, etc. In the process of removal, state government may be informed
and consulted.
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2. USE OF ARTICLE 356 (STATE EMERGENCY – PRESIDENT’S RULE)

 This article should be used very sparingly and as a matter of last resort. It can be invoked only in the
event of political crisis, internal subversion, physical breakdown and non-compliance with the
constitutional directives of the centre.
 Before that, a warning should be issued to the errant state in specific terms and alternate course of
action must be explored before invoking it.
 The material fact and grounds on the basis of which this article is invoked should be made an integral
part of the Proclamation; it will ensure effective Parliamentary control over the invocation of the
President Rule. T
 he Governor’s report must be a ‘speaking document’ and it should be given wide publicity.
3. LEGISLATIVE MATTERS
 While it made the general observation that the Constitution is basically sound and there is no need
for drastic changes in the basic character of the Constitution, nevertheless it gave following
recommendations:
1. Ordinarily, the Union should occupy only that much field of a concurrent subject on which
uniformity of Policy and Action is required in the larger interest of the Nation, leaving the rest of the
details for State action.

2. Whenever, the Union proposes to undertake Legislation on a subject belonging to the Concurrent
List, the views of all states must be ascertained through inter-Governmental Councils.

3. Parliamentary law passed under Article 252(1), on request of two or more States should not be
perpetual but should be for specific period not exceeding three years.

4. On receipt of a resolution from a State recommending creation or abolition of a Legislative

Council, the same will be presented before the Parliament within a reasonable time.

III. FREEDOM OF TRADE AND COMMERCE

I) Introduction: In the Indian Constitution, the provisions regarding the freedom of trade, commerce and
intercourse were adopted from the Constitution of Australia. According to Section 92 of the Australian
Constitution, there should be freedom of trade, commerce and intercourse which may be carried out by
ocean navigation or internal carriage. While India had borrowed this provision, it also made sure to include
the provision that the free flow of goods is allowed not only between different States but also within a State
as well. Thus, in the Indian Constitution Inter-State trade as well as Intra-State trade is allowed in the
country.

II) TRADE, COMMERCE AND INTERCOURSE

 Article 301 of the Indian Constitution provides that the trade, commerce and intercourse in the
country should be free throughout the country. .
 In trade, goods and services are exchanged between the buyer and the seller and it also includes the
transportation of these goods. In commerce, the focus is more towards the element of transmission of
goods as well as that of men and animals. Thus in commerce, the element of profit is not the primary
concern. The word “intercourse” was included to remove any ambiguity about the intention of the
Constitution makers and thus it has been used to express the intention that, free flow of goods
throughout the country is part of the freedom under Article 301 of the Indian Constitution.
 Illustration: A, a seller lives in Maharashtra wants to sell his goods to B who lives in Madhya
Pradesh. Under Article 301 of the Constitution, they have the freedom to do so and cannot be
restricted from selling or buying the goods.
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 While the freedom under Article 301 is provided for carrying out trade and commerce freely, this
right cannot be allowed to be exercised in those activities which do not fall within the category of
trade or business.
 In State of Bombay vs. RMDC, the Bombay Lotteries and Prize Competitions Control and Tax
(Amendment) Act, 1952 was held to be valid and it was stated that it did not violate Article 301 of
the Indian Constitution because the act was imposing restrictions on prize competition which was in
the nature of gambling and therefore it did not require any skill and thus it could not be said that it
was restricting trade.
 Gambling :In gambling, there is an element of chance and the person may either win or may not win
but such a victory does not depends on his own ability or effort but only on his luck and therefore
such an act is not covered under the protection of Article 301. There is a maxim for such activities
which is res extra commercium which means the activities which are not part of trade or commerce
or business and any act which is res extra commercium will not be protected under Article 301. Also,
any unlawful trade is not protected by the provisions of Article 301 and if the laws prohibit carrying
out such trade, it cannot be said to be a violation of the freedom of trade.
 Example: A is trading in illegal drugs and such an act is restricted by the State then he cannot claim
that his right under Article 301 is being violated because such a trade is unlawful.
.
III) THE OBJECT OF ARTICLE 301
 Article 301 has been included in the Constitution in order to ensure that the unity of the nation is
maintained by removing the geographical barriers which exist in various parts of the country. Also, by
removing the imposition of any restrictions which may be put up, it ensures the free flow of goods
throughout the country.
 So, the main objective of this provision is to bring the feeling of one nation among all the Indians which
may not be possible if the economic activities face many barriers and which has already been facing
problems due to the existence of regionalism and the language barrier.

IV)FREEDOM OF TRADE AND TAXATION

 While freedom on the free flow of goods is the objective behind Article 301 it does not mean that the
State is barred from completely regulating aspects of the trade. The state has the right to regulate the
trade and therefore if taxes are charged on the goods it does not automatically become a restriction on
freedom of trade and therefore there is a criterion which is followed to understand whether a tax charged
on the goods is a violation of Article 301 or not.

V) COMPENSATORY TAX :
 The Government charges tax on various goods and services but it does not mean that it is a restriction on
freedom of trade. In many cases, it is necessary for the States to charge these taxes because they are
providing many services which are facilitating the trade activities.
 Illustration: A, a seller of goods, lives in Tamil Nadu and is selling his goods to B who lives in
Karnataka. The goods are being delivered by A through a truck and when the truck reaches Karnataka,
the driver is made to pay the toll tax. Here, A cannot challenge the validity of levying toll tax by the
Government of Karnataka on the grounds that it has restricted the free flow of goods. The tax is charged
in return for the maintenance of the roads by which the transportation of the goods has been made much
easier. Therefore, it is not a restriction but instead a facility which is provided by the State and thus they
have the right to charge the toll tax and it is not the violation of Article 301 of the Constitution.
 In the above illustration, the tax was charged in exchange for providing services of maintaining roads to
ensure smooth transportation of goods and it is an example of facilitation of trade and not of a direct
restriction of it. Similar example can also be seen by the fact that the driver may stay in a hotel while
being in Karnataka and therefore if he stays in a hotel and a tax is charged for the luxury which he has
enjoyed from it, it will not be a restriction on the freedom of trade and intercourse but instead such an
activity is a charge which has been made for providing the facility of staying in the State and it has
helped in facilitating the trade. So, here in such situations the taxes being charged are fully justified.
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 Such taxes which are charged are known as compensatory taxes. For the validity of a compensatory tax,
it is necessary to show the object behind the tax and the relation which such a tax has with the subject
and object of it. Once such a relation or connection is shown then the tax can be validly upheld and it is
not important to show the exact amount of benefit which is provided and the expenditure which has been
done for providing such a service.
 But if the tax is not in the nature of facilitation of trade and is in reality charged for restricting the trade,
then such a tax cannot be upheld and it will become bound to be struck down by the Courts.

 CASE:Atiabari Tea Company vs. State of Assam

 Appellants carried on the business of growing tea in West Bengal and exporting it to Calcutta. Though
both the points were in West Bengal, a very small stretch of land, about two kilo meters, through which
the goods were carried fell in the State of Assam. Assam State imposed tax on the goods is transit under
the Assam Taxation Act, 1954. The Supreme Court held that the tax imposed on goods directly restricted
their movement. Therefore, it offended Article 301, and hence, was unconstitutional. It was,
consequently struck down by the Court. Incidentally, the appellants also raised the ground of territorial
nexus, as the goods carried did not belong to the taxing state, and the land through which they were
carried was very negligible. But the Court held that the law had territorial nexus, as it is the existence of
some sort of connection, and not the extent of connection which matters.
 A compensatory tax can be turned as confiscatory which means that it is in violation of the freedom of
trade under Article 301 if any of the following situations arise

1. The amount of tax which is charged is so excessive that it has become a setback in the free flow of goods.
2. The tax which is charged is not in proportion to the cost of the facilities which are provided against it.
3. There are no services which are being provided by the state in exchange for the tax being charged.
4. There is no fixed procedure which has been provided by the state levying the tax as to how are they
assessing and levying the tax.
5. The tax which is charged is discriminating between the goods produced within the State and the goods
which are produced outside it.

Vi) FREEDOM OF TRADE, COMMERCE AND INTERCOURSE IS NOT ABSOLUTE

 Even though Article 301 provides that trade, commerce and intercourse should be free throughout
the territory India, this freedom is not absolute in nature. It means that certain restrictions can be
imposed on this freedom and such restrictions will no be violative of the provisions under Article
301. These restrictions have been mentioned in Part XIII of the constitution and even Article 301
provides that this freedom is subjected to the provisions of this part.
 Parliament has been provided with the power to impose some restrictions on the free flow of goods
under Article 302 of the Indian Constitution and such a power is subject to the provisions of Article
303.
 Under Article 302, the Parliament can restrict the freedom of trade between different states, if it is
necessary for the public interest. This restriction can be applied on any State or it may also be placed
in any part of the territory of India.
 In Prag Ice & Oil Mills vs. Union of India, it was held by the Supreme Court that even though
Article 302 does not speak about reasonable restrictions, but still the restrictions which can be
imposed under this Article should have a reasonable nexus with the public interest for which the
restriction is placed.
 While the Parliament has the power to impose restrictions on the freedom of trade in any State or
part of the territory of India, this power is subjected to the provisions of Article 303 of the Indian
Constitution which provides that the Parliament cannot impose a restriction on any State in favour of
another State. It means that no discriminatory restriction can be made by the Parliament which gives
benefit to one State while the other States are excluded from such benefit.
 But clause 2 of Article 303 provides that in case of scarcity in a State, the Parliament can be allowed
to impose such discriminatory restrictions so that the State which is facing the problem of scarcity to
overcome it.
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 Article 304 of the Indian Constitution provides some powers to the State Legislatures for imposing
some restrictions on the freedom of trade. Under this Article, the legislature of a State can charge tax
on the goods which are imported from other States, if such tax is charged on the similar goods which
are produced in that State.
 Illustration :If the state of Madhya Pradesh charges tax on X goods which are produced in the state
itself and the same goods are imported from Maharashtra, then the State Legislature of Madhya
Pradesh can also charge the tax on the imported goods because they were being charged on the same
goods which were being produced in the State of Madhya Pradesh.
 The State Legislature can also impose other reasonable restrictions in public interest, but a bill for
the same can be brought only when the previous sanction of the President is taken.
 In State of Karnataka vs. Hansa Corporation, it was held that even though under clause b of
Article 304, the previous assent of the President is necessary for bringing a bill for imposing
restrictions but in case it cannot be introduced to the President due to Article 255, then in such cases
the Bill may be presented in the State Legislature and the assent of the President can be taken after
the bill is presented.

VII) THE RELATION BETWEEN ARTICLE 301 AND 19(1)(g)

 There is a complex relationship which exists between Article 301 and 19(1)(g). While both provide
the right of trade and commerce, there have been arguments which state that the rights under Article
301 are for the trade as a whole whereas, the right under Article 19(1)(g) is provided only to the
individual. But this view is wrong and it cannot be maintained because Article 301 is derived from
Section 92 of the Australian Constitution which includes the rights of the individual as well. So, the
relation between the two cannot be explained, they both are interrelated because, during the
proclamation of emergency, the rights under Article 19 are suspended and in such cases the Courts
can look towards the provisions of Article 301 for finding out if any violation of freedom of trade has
taken place or not. So, it can be said that both these articles are interrelated with each other.

VIII)CONCLUSION
 In India, the provisions for the Freedom of Trade, Commerce and Intercourse are provided under
Part XIII of the Indian Constitution. While there is a freedom of trade, such freedom is not absolute
in nature and there are certain restrictions which can be placed on these freedoms. Thus, by these
provisions, it is ensured that the freedom of trade, commerce and intercourse are given Constitutional
status which is necessary to ensure that the geograp hical barriers and the unreasonable restrictions
which are imposed on the free flow of trade can be overcome.

IV. OFFICIAL LANGUAGE:

I) Introduction: The President is the Head of the State and the Formal Executive. He is part of the
Central Executive which is headed by the Prime Minister. The Central Executive also consists of the
Council of Ministers.

II) THE ISSUES:

 India is a multilingual country having numerous languages and this creates various problems
and tensions in the country and poses a unique challenge to it as it has to bind together a
large number of linguistic and cultural groups due to which it has to hammer out its own
solutions consistent with national perspective and regional pressures.
 India has 2 major linguistic families: Indo-Aryan and Dravidian. The Indo-Aryan languages
11 in number are derived from Sanskrit are spoken by nearly 75% people of whom Hindi is
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spoken by nearly 42% people. The Dravidian languages spoken by nearly 24% people prevail
in the South of India and of these Telugu is spoken by the largest group.
 During the British rule English had been accepted as the language of administration,
instruction and examination for the whole country, but it could never become the mass
language in India.
 When India became independent and adopted the democratic form of government based on
adult suffrage, retention of English Language for purposes of administration appeared to be
incongruous and anachronistic because the vast majority of people did not understand the
language. Only one of the Indian languages could be adopted as the language of the
administration at the Centre.
 At the time of Constitution-making, debates of the Constituent Assembly reveal that there
was a substantial amount of consensus on the following two points:
1) at some stage, English language should be displaced from its preeminent position &
2) its place should be taken by Hindi.

III) CONSTITUTIONAL PROVISIONS:

Arts. 343 to 351 of the Constitution deal with Official Language as follows:
1. ART.S 343 & 344 (LANGUAGE OF THE UNION) ::
 Art. 343. speaks about the Official Language of the Union. According to Art. 343(1), Hindi
written in Devanagari script is the Official Language of the Union. The reason for
designating Hindi as the official and not the national language is that not only Hindi but all
regional languages are regarded as national and not foreign languages.
 For the official purposes of the Union, the international form of Indian numerals were
permitted to be used. 343(2) says that uptil 15 years from the commencement of the
Constitution English language shall continue to be used for all official purposes of the Union
and the President may during the said period by Order authorise the use of Hindi language in
addition to English language for any of the official purposes of the Union. After the said
period of 15 years, the Parliament may by law provide for the use of the English language.
 By the Official Language Act, 1963, the Parliament permitted the use of English for official
purposes. Art. 344 speaks about Commission and Committee of Parliament on Official
Language. Art. 344(1) provides that the President shall at the expiration of 5 years and
thereafter at the expiration of 10 years from the commencement of the Constitution by Order
constitute a Commission which shall consist of a Chairman and such other members
representing the different languages specified in the 8th Schedule
Accordingly, the Official Language Commission was appointed in the year 1955 which submitted
its report in the year 1956.
On the basis of other recommendations of the Official Language Commission in 1961, the President
issued an Order which provided that:
i) English shall continue to be the medium of examination for recruitment through UPSC, but after
some time Hindi may be admitted as an alternative medium.
ii) Parliamentary legislation may continue to be in English but an authorized translation be provided
in Hindi.
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iii) where the original text of Bills introduced or Acts passed by a State Legislature is in a language
other than Hind, a Hindi translation be published with it beside an English translation as provided in
Art. 348(3) of the Constitution.
iv) when the time comes for the changeover, Hindi shall be the language of the Supreme Court
v) Similarly, when the time for changeover comes, Hindi shall ordinarily be the language of
judgments, decrees or orders of the Courts in all regions, but the President may consent the use of a
regional official language instead of Hindi.
2.ARTS. 345, 346 & 347 (REGIONAL LANGUAGES):
 Arts. 345 and 346 provides that the language for the time being authorised for use in the Union
for official purposes i.e., English shall be the Official Language of communication between one
State and another State and between a State and the Union.
 It also provides that if two or more States agree that Hindi language should be the Official
Language for communication between them, then Hindi language may be used for
communication instead of English.
 Art. 347 speaks about Special Provision relating to Language spoken by a section of the
Population of a State and confers on the President to direct about the use of that language as
Official Language provided that such a demand is being made by them. In 1987, the Goa
Legislative Assembly passed the Goa Legislative Act making Konkani an Official Language of
the Union Territory in addition to Marathi and Gujarati.
3.ARTS. 348 & 349 (LANGUAGE OF THE SUPREME COURT, HIGH COURTS, ETC):
 Art. 348(1) lays down that until Parliament otherwise provides proceedings in the Supreme
Court and in every High Court, the authoritative texts of all Bills, Acts, Ordinances promulgated
by the President or the Governor of a State and of all orders, rules, regulations and by-laws
issued under the Constitution or under any law made by the Parliament of the Legislature of a
State shall be in English language.
 Art. 348(2) provides that the Governor of a State may with the previous consent of the President
authorise the use of Hindi or any other language used for any official purposes of the State in
proceedings in the High Court having its principal seat in that State.
 Art. 348(3) provides that a State Legislature can prescribe use of any language other than
English for purposes of legislation and delegated legislation but a translation of the same in the
English language is to be published in the official gazette under the authority of the State
Governor and that would be the authoritative text in English.
4. ARTS. 350, 350-A, 350-B & 351 (SPECIAL DIRECTIVES):
 Art. 350 gives right to every person to submit a representation for the redress of any grievance to
any officer or authority of the Union or a State in any of the languages used in the Union or in
the State as the case may be.
 Art. 350-A imposes a duty on every State to provide adequate facilities for instructions in the
mother tongue at the primary stage of education to children belonging to linguistic minority
groups.
 Art. 350-B provides that the President shall also appoint a Special Officer for linguistic
minorities who will investigate all matters relating to safeguards provided for linguistic
minorities.
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 Art. 351 lays down that the Union shall promote the spread of Hindi language so that it may
serve as a medium of expression for all the elements of the composite culture of India and that
the Union shall take steps to secure its enrichment by assimilating without interfering with its
genius, forms, style and expressions used in Hindustani and in the other languages of India
specified in the 8th Schedule and by drawing wherever necessary or desirable for its vocabulary
primarily on Sanskrit and secondarily on other languages.
IV)Conclusion:

V. LOCAL SELF-GOVERNMENT
(With Special Emphasis on 73rd and 74th Amendment)
I) Introduction:
In India there is a government at the Center and State levels. But there is another important system for local
governance. The foundation of the present local self-government in India was laid by the Panchayati Raj
System (1992). But the history of Panchayati Raj starts from the self-sufficient and self-governing village
communities. In the time of the Rig-Veda (1700 BC), evidence suggests that self-governing village bodies
called ‘sabhas’ existed. With the passage of time, these bodies became panchayats (council of five persons).
Panchayats were functional institutions of grassroots governance in almost every village. They endured the
rise and fall of empires in the past, to the current highly structured systemLocal self-government implies the
transference of the power to rule to the lowest rungs of the political order. It is a form of democratic
decentralization where the participation of even the grass root level of the society is ensured in the process
of administration.

II) THE 73RD AMENDMENT TO THE CONSTITUTION – PANCHAYATS

The 73rd Constitutional amendment is hailed as an important landmark for its radical approach towards
decentralisation, devolution of power and in ensuring the participation of the marginalised sections. The
Amendment sought to bring a new political system in rural areas by giving priority to decentralisation,
people’s participation and democracy at the local level. The Amendment adopted a threetier model with
democratically elected governments at the village, taluka and district level. The Amendment incorporated
the following to strengthen PRIs and secure people’s participation in Panchayat Raj Institutions (PRIs):

1. GRAM SABHA
Article 243(b) defines Gram Sabha. ‘Gram Sabha’ means a body consisting of persons registered in the
electoral rolls relating to a village comprised within the area of Panchayat at the village level. Article 243-A
provides that a Gram Sabha may exercise such powers and perform such functions at the village level as the
state legislature may, by law, provide. Article 243(d) defines Panchayat. ‘Panchyat’ means an institution of
selfgovernment for the rural areas. It must be constituted under Art. 243-B. It may be called by any name.
 Constitution of Panchayats (Art. 243-B) In every state, Panchayats are constituted at three levels:
1. at the village level;
2. at the intermediate (taluka) level; and
3. at the district level.
In a state whose population is twenty lakhs or less, taluka Panchayats need not be constituted.
 Composition of Panchayats (Article 243-C)
 Decision about composition of Panchayats is left to the state legislatures. They may, subject to
Part IX of the Constitution, make laws to fix the composition of Panchayats.
 Proviso to Article 243-C requires that the ratio of population and number of members shall be
more or less uniform throughout the state.
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 Each Panchayat area shall be divided into territorial constituencies. Ratio between the population
of each constituency and the number of seats allotted to it shall more or less be the same
throughout the Panchayat area.
 All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial
constituencies in the Panchayat area.
 The state legislature may provide for representation of
1. the Chairman of a Panchayat in the Pachayat of the next higher level.
2. Members of Lok Sabha and MLAs in a Taluka Panchyat or District Panchayat, if the their
constituency or a part the constituency falls within the area of that Panchayat.
3. Members of Rajya Sabha and MLCs in a Taluka Panchyat or District Panchayat, where they
are registered as electors.
All the members of Panchayat, whether or not chosen by direct election have voting rights in the
meetings of the Panchayats.

2. RESERVATION OF SEATS (ARTICLE 246-D)

Historically, disadvantaged groups (women, SC and ST communities) were not participating in Panchayats
because of the prevailing social structure. In order to improve their representation and participation in the
local self-government, seats and executive positions are reserved for women and persons belonging to SC
and ST categories in PRIs.
1. The proportion of seats to be reserved for SC or ST to the total number of seats has to be same as the
proportion of the population of SC or ST in the Panchayat area. The reservation may be allotted to different
constituencies in the Panchayat area by rotation.
2. The reservation has to be made for only those seats that are to be filled by the direct elections. This means
no reservation for nominated seats.
3. This article also provides that not less than one-third of the total number of seats reserved for SC or ST
shall be reserved for women belonging to SC or ST. This is mandatory.
4. In respect of women, the seats shall be reserved to the extent of not less than one-third of the total number
of seats. This includes seats reserved for women belonging to SC or ST. These reservations will apply for
direct elections only. This is also mandatory.
5. The state legislature may also provide for reservation to SC, ST and women for the offices Chairpersons
of the Panchayat. Here the percentage of reservation for SCs and STs shall be the same as percentage of SCs
and STs in the total population of the state, of which one-third of the seats shall be for women.
6. There are no bar on State Legislatures from making provisions for reservation of seats in any
municipality or office of Chairperson in the municipalities in favour of backward class of citizens. This is
not mandatory, but discretionary.

3.DURATION OF PANCHAYATS (ARTICLE 243-E)

 The term of a Panchayat is five years from the date appointed for its first meeting. It cannot be more
than five years, but a Panchayat may be dissolved sooner under any law for the time being in force.
During the tenure of a Panchayat its term cannot be reduced by an amendment to the law.

4.ELECTIONS TO PANCHAYAT
 Article 243-E(3) provides that elections to constitute Panchayat shall be completed (a) before the
expiry of its duration specified in Article 243-A(1); or (b) before the expiration of a period of six
months from the date of its dissolution. Where the term remaining after the dissolution of a
Panchayat is less than six months, election need not be held. Where a Panchayat constituted in place
of dissolved Panchayat, its term will be only for the period for which the earlier Panchayat would
have continued.
 State Election Commission (Article 243-K)
 The elections to the Panchayats are held under the superintendence of the State Election
Commission. The responsibility of preparation of electoral rolls etc. is of the Election Commission.
 The Governor of the state shall appoint the State Election Commission as well as the State Election
Commissioner, and also make Rules governing the conditions of service and tenure of office of the
State Election Commissioner. The conditions of service shall not be changed to his disadvantage
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during his tenure. State Election Commissioner may be removed from his office on the grounds
similar to the grounds for the removal of a High Court Judge.

5. DISQUALIFICATIONS OF MEMBERS (ARTICLE 243-F)

A person shall be disqualified from becoming, or from continuing as a member of a Panchayat,
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the
Legislature of the State concerned: No person can be disqualified on the ground that he is less than twenty-
five years of age after he has attained the age of twenty-one years.
(b) if he is so disqualified by or under any law made by the Legislature of the State.

6.DEVOLUTION OF FUNCTIONS (ARTICLE 243-G)

 Article 243-G vests powers in the State legislatures to endow panchayats with such powers and
authority to enable them to function as institutions of self government. Panchayats are made
responsible for preparation and execution of plans for economic development and social justice with
regard to 29 functions listed in the eleventh schedule of the Constitution.
 After the 73rd Amendment, almost all the states have passed conformity acts and started to
implement the panchayat raj system. All the mandatory rules have been followed. Elections have
been regularly held to PRIs. Reservations have been provided to secure the representation of women,
and persons belonging to SC and ST communities in PRIs.

7. TAXING POWERS OF PANCHAYATS (ARTICLE 243-H)

The State Legislature, by law,
(a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with
such procedure and subject to such limits;
(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for
such purposes and subject to such conditions and limits;
(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State; and
(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of
the Panchayats and also for the withdrawal of such moneys therefrom, as may be specified in the law.

8. CONSTITUTION OF THE FINANCE COMMISSION (ARTICLE 243-I)

 Panchayats should have adequate resources to implement plans prepared by the people and fulfil their
aspirations. In view of changing aspirations, there is also a need to periodically revise the quantum of
funds to be provided to PRIs.
 The Amendment has, therefore, made it mandatory to constitute a Finance Commission once in five
years to review the finances and to recommend the size of funds to be allocated to the Panchayats and
also the principles and the basis on which taxes should be collected in Panchayat areas.

9.AUDIT OF ACCOUNTS OF PANCHAYATS (ARTICLE 243-J)

 The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by
the Panchayats and the auditing of such accounts.

III.THE 74TH AMENDMENT TO THE CONSTITUTION – MUNICIPALITIES

Constitution (Seventy Forth Amendment) Act, 1992 has introduced a new Part IXA in the Constitution,
which deals with Municipalities in an article 243-P to 243-ZG. This amendment, also known as Nagarpalika
Act, came into force on 1st June 1993. It has given constitutional status to the municipalities and brought
them under the justifiable part of the constitution. States were put under constitutional obligation to adopt
municipalities as per system enshrined in the constitution.

1. ‘METROPOLITAN AREA’ (ARTICLE 243-P) Metropolitan area in the country is an area

where population is above 10 Lakh.
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2. THREE KINDS OF MUNICIPALITIES (ARTICLE 243-Q) Article 243-Q provides for

establishment of 3 kinds of Municipalities of every state.
 Nagar Panchayat: A Nagar Panchayat is for those areas which are transitional areas i.e. transiting
from Rural Area to Urban areas. “Governor” will by public notice, will define these three areas based
upon the population, density of population, revenue generated for local administration, % of
employment in Non-agricultural activities and other factors. Further, a Governor may also if, he fits
it necessary, based upon the industrial establishments, can specify the Industrial Townships by public
notice.
 Municipal Council A Municipal council is for smaller urban area
 Municipal Corporation A municipal Corporation for Larger urban Areas

3. COMPOSITION OF MUNICIPALITIES: All the members of a Municipality are to be directly

elected by the people of the Municipal area and for the purpose of making the electorate; the municipal area
will be divided into territorial constituencies known as Wards.
1. Besides the seats filled by direct elections, some seats may be filled by nomination of persons having
special knowledge and experience in municipal administration.
2. Persons so nominated shall not have the right to vote in the meetings of the municipality.
3. The Legislature of a State may, by law, also provide for the representation in a municipality of members
of the House of the People and the members of the Legislative Assembly of the State representing
constituencies which comprise wholly or partly the Municipal area and also the Members of the Council of
States and the members of the Legislative Council of the State registered as electors within the municipal
area.
The manner of election of Chairpersons of municipalities has been left to be specified by the State
Legislature (Article 243-R).

4. WARD COMMITTEES (ARTICLE 243-S):

Ward committees consisting of one or more wards within the territorial area of all the municipalities with a
population of 3 Lakhs or more, shall be constituted. A member of a Municipality representing a ward within
the territorial area of the Wards Committee shall be a member of that Committee. Where a Wards
Committee consists of
1. one ward, the member representing that ward in the Municipality shall be the Chairperson of that
Committee; and 2. two or more wards, one of the members representing such wards in the Municipality
elected by the members of the Wards Committee shall be the Chairperson of that Committee.

5. RESERVATION OF SEATS (ARTICLE 243-S): Rreservation of the seats for the Scheduled
castes and scheduled tribes in every municipality corporation has to be provided in proportion to their
population to the total population in the municipal area.
1. The proportion of seats to be reserved for SC or ST to the total number of seats has to be same as the
proportion of the population of SC or ST in the municipal area.
2. The reservation has to be made for only those seats that are to be filled by the direct elections. This means
no reservation for nominated seats.
3. This article also provides that not less than one-third of the total number of seats reserved for SC or ST
shall be reserved for women belonging to SC or ST. This is mandatory.
4. In respect of women, the seats shall be reserved to the extent of not less than one-third of the total number
of seats. This includes seats reserved for women belonging to SC or ST. These reservations will apply for
direct elections only. This is also mandatory.
5. The state legislature may also provide for reservation to SC, ST and women for the offices Chairpersons
of the Municipalities. The reservation shall be governed by the law made by the state legislature in that
respect.
6. There are no bar on State Legislatures from making provisions for reservation of seats in any municipality
or office of Chairperson in the municipalities in favour of backward class of citizens. This is not mandatory,
but discretionary.
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6. DURATION OF MUNICIPALITIES (ARTICLE 243-U): The term of a Municipality is five

years from the date appointed for its first meeting. It cannot be more than five years, but a Municipality may
be dissolved sooner under any law for the time being in force. A Municipality shall be given a reasonable
opportunity of being heard before its dissolution. During the tenure of a Municipality its term cannot be
reduced by an amendment to the law.

7.ELECTIONS TO MUNICIPALITIES Article 243-U(3): provides that elections to constitute

Municipality shall be completed
(a) before the expiry of its duration specified in Article 243-A(1); or
(b) before the expiration of a period of six months from the date of its dissolution.
Where the term remaining after the dissolution of a Municipality is less than six months, election need not
be held. Where a Municipality constituted in place of dissolved Municipality, its term will be only for the
period for which the earlier Municipality would have continued.

 State Election Commission (Article 243-ZA) The elections to the Municipality are held under the
superintendence of the State Election Commission. The responsibility of preparation of electoral rolls
etc. is of the Election Commission. The Governor of the state shall appoint the State Election
Commission as well as the State Election Commissioner, and also make Rules governing the conditions
of service and tenure of office of the State Election Commissioner. The conditions of service shall not be
changed to his disadvantage during his tenure. State Election Commissioner may be removed from his
office on the grounds similar to the grounds for the removal of a High Court Judge.

8.DISQUALIFICATIONS OF MEMBERS (ARTICLE 243-V): A person shall be

disqualified from becoming, or from continuing as a member of a Panchayat,
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the
Legislature of the State concerned: No person can be disqualified on the ground that he is less than twenty-
five years of age after he has attained the age of twenty-one years.
(b) if he is so disqualified by or under any law made by the Legislature of the State.

9.POWERS, AUTHORITIES AND RESPONSIBILITIES (ARTICLE 243-W): All

municipalities would be empowered with such powers and responsibilities as may be necessary to enable
them to function as effective institutions of selfgovernment. The State Legislature may, by law, specify what
powers and responsibilities would be given to the municipalities in respect of preparation of plans for
economic development and social justice and for implementation of schemes as may be entrusted to them.

10.FINANCIAL POWERS (ARTICLE 243-X): The Constitution has left it open to the
Legislature of a State to specify by law matters relating to imposition of taxes. Such law may specify:
(a) Taxes, duties, fees, etc. which could be levied and collected by the Municipalities, as per the procedure
to be laid down in the State law
(b) Taxes, duties, fees, etc. which would be levied and collected by the State Government and a share passed
on to the Municipalities
(c) Grant-in-aid that would be given to the Municipalities from the State (d) Constitution of funds for
crediting and withdrawal of moneys by the Municipality.

11.FINANCE COMMISSION (ARTICLE 243-Y): Article 243-Y makes provision that the
Finance Commission constituted under Part IX for Panchayats shall also review the financial position of the
municipalities and will make recommendations to the Governor. The recommendations of the Finance
Commission will cover the following:
(a) Distribution between the State Government and Municipalities of the net proceeds of the taxes, duties,
tolls and fees to be levied by the State
(b) Allocation of share of such proceeds between the Municipalities at all levels in the State
(c) Determination of taxes, duties, tolls and fees to be assigned or appropriated by the Municipalities
(d) Grants-in-aid to Municipalities from the Consolidated Fund of the State
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(e) Measures needed to improve the financial position of the Municipalities. Union Finance Commission
also suggests the measures needed to augment the Consolidated Funds of States to supplement the resources
of the Panchayats in the states.

12.AUDIT AND ACCOUNTS (ARTICLE 243-Z) :The maintenance of the accounts of the
municipalities and other audit shall be done in accordance with the provisions in the State law. The State
Legislatures will be free to make appropriate provisions in this regard depending upon the local needs and
institutional framework available for this purpose.
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V. LOCAL SELF-GOVERNMENT
(With Special Emphasis on 73rd and 74th Amendment)
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CONSTITUTIONAL – II
Unit 1
10M
1. Examine the Administrative and Legislative relations between Centre and State.

2. Explain the provisions of the Constitution relating to Panchayats and Municipalities in India.

3. Explain the financial relations between state and centre.

4. Explain the provisions relating municipalities in the constitution.

5. Examine the administrative and legislative relations between Centre and the State.

6. Explain the scope of the freedom of trade, commerce and inter course under Article 301 of the
Constitution of India.

7. Explain the constitution, composition and powers of the 'Panchayat'.

8. Explain the legislative relationship between Union and States.

9. What do you mean by 'Inter-state Trade and Commerce’? Discuss the Constitutional provisions
that regulate Inter-state Trade and Commerce in India.

10. Explain the provisions of the Constitution relating to Panchayaths and Municipalities in India.

11. Explain the scheme of distribution of legislative powers between union and states.

12. 'Freedom of trade, commerce and intercourse throughout the territory of India shall be free' -
Discuss.

13. Explain the administrative relation existing between the centre and the state.

14. 'Indian federalism is a result of conversion of unitary system into federal system'. Elucidate.

15. Explain 'The Administrative relations between the Centre and the States'.

16. Explain the scope of the freedom of trade, commerce and intercourse under Article 301 of the
Constitution of India.

17. Explain the financial relation existing between the centre and the state.

18. Explain inter-state trade and commerce.

19. Discuss the power of Parliament to make law.

20. Explain the provisions relating to Municipalities in the Constitution.

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6M
1. Write short notes on: Federal characteristics of the Indian Constitution.

2. Write short notes on: 73rd and 74th Amendment.

3. Doctrine of colourable legislation.

4. Write a note on restrictions on trade and commerce.

5. Briefly explain the provisions of the Constitution relating Panchayaths in India.

6. Write a note on the Commission and Committee of Parliament on official language.

7. Write a note on 'Co-operative federalism'.

8. Write a note on 'Finance Commission'.

9. Write a note on 'The administrative relations between the Centre and the States'.

10. The legislature of a state in India passes an Act prescribing a lower rate of sales tax on cotton
goods manufactured within that state than on goods imported from other states. A trader in cotton
goods challenges the validity of the Act on the ground of violation of freedom of Inter-state trade
and commerce. Decide.

11. Write a note on Federalism.

12. Write a note on special provision relating to Article 371 -J.

13. Official language.

14. The state government frames a scheme to nationalise school text books. But the private
publishers challenge it as curtailment of their fundamental and constitutional rights. Decide.

15. Special provision relating to Article 371-J.

16. Special provision under Article 370.

17. Local self-government.

18. The state government issues a notification creating a monopoly in an agency for manufacture,
possession, sale and distribution of liquor as a beverage. The respondent challenges it as violative of
his Fundamental and Constitutional Right. Decide.

19. Write a short note on special status given to Jammu and Kashmir under Article 370.

20. 'A' grows tea and transports it to Kolkata via Assam. Assam state legislature has passed a law
imposing taxes on goods carried by road and inland waterways. Is 'A' liable to pay tax?
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Unit 2
10M
1. Examine the powers of President of India. State the procedure for impeachment of the President.

2. Discuss the powers, privileges and immunities of the members of parliament.

3. Explain the ordinance making power of President.

4. Explain the powers and functions of the Prime Minister.

5. Discuss the qualification, appointment, tenure and powers of the Governor.

6. Discuss the legislative powers of the President.

7. Critically examine the powers and functions of the Governor.

8. Explain the powers and functions of the Parliament.

9. Explain the powers and functions of the Prime Minister.

10. Discuss the Constitutional position of the President of India.

11. Explain the powers of the President.

12. Write about composition of Parliament in India.

13. Discuss the pardoning power of the President of India.

14. Explain the powers and functions of the Prime Minister.

15. Discuss the constitutional position of the President.

16. Explain the composition and functions of Parliament.

17. Discuss the ordinance making power of the President of India.

18. What is bicameralism? Explain its advantages and disadvantages.

19. Discuss the Constitutional position of President of India.

20. What is a Money Bill? Explain the differences between Money Bill and Ordinary Bill.
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6M
1. Write a short note on : Chief Minister.

2. Composition of Rajya Sabha.

3. Write a note on Bicameralism.

4. Write a short note on Governor.

5. A non-member of Parliament can become a Minister -Discuss.

6. Write a note on Attorney-General of India.

7. Explain the importance of 'Bicameralism'.

8. Write a note on 'Collective Responsibility'.

9. Write a note on 'Bicameralism'.

10. The President of India dissolved the Lok Sabha but the Prime Minister was continued in his
office. The continuance of the Prime Minister along with his ministry even after dissolution by Lok
Sabha was challenged in the Supreme Court by 'X', a citizen of India on the ground that Prime
Minister ceases to be a Member of Parliament. Decide.

11. Position of Prime Minister.

12. Bicameralism.

13. Council of Minister.

14. Position of non-member of the house as a Minister.

15. The Governor of a State dismisses the government of Mr. 'A', without giving him an opportunity
to prove his majority on the floor of the house. Is the governor's action valid? Decide.

16. Write a note on bicamaralism.

17. Position of Prime Minister.

18. Appointment of Chief Minister.

19. Write a short note on Governor.

20. Explain ordinance making power of President.

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Unit 3
10M
1. Explain the different types of Jurisdiction of Supreme Court of India.

2. Discuss the powers of High Court regarding issue of writs.

3. Critically evaluate the procedure for appointment of the Chief Justice of Supreme Court.

4. What is Money bill? Explain the procedure of passing of money bill and ordinary bill.

5. What is a Bill? Discuss the various kinds of Bills and the corresponding procedures in passing
them by the Parliament.

6. Examine the nature and extent of the Appellate Jurisdiction of the Supreme Court of India.

7. Explain the powers and functions of the Lok Sabha Speaker

8. Explain the writ jurisdiction of the High Court.

9. What is Money bill? Explain the procedure of passing of money bill and ordinary bill.

10. Discuss the powers, privileges and immunities of the members of Parliament.

11. a) What is ordinary Bill ? How is it passed in Parliament? Explain.

12. Explain appellate jurisdiction of the Supreme Court.

13. Explain original jurisdiction of the Supreme Court of India.

14. Examine whether the anti-defection law is a suppression of healthy party debate and dissent.

15. Discuss the powers, privileges and immunities of the members of parliament.

16. Explain the scope of original jurisdiction of the Supreme Court.

17. Examine whether parliamentary privilege is an anti-thesis to equality before law.

18.Briefly explain the appellate jurisdiction of the Supreme Court of India.

19. Discuss the provisions relating to appellate jurisdiction of Supreme Court.

20. "Jurisdiction of the Supreme Court cannot be barred".Discuss.

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6M
1. Write short notes on: Transfer of Judges.

2. Write short notes on: Powers and functions of Deputy Speaker.

3. Write a note on original jurisdiction of the Supreme Court in India.

4. Write a note on powers and functions of speaker.

5. Write a short note on Anti-defection law.

6. Write a short note on transfer of judges'.

7. Explain privileges of members of legislature.

8. Write a note on 'Contempt of Court'.

9. Write a note on Article 136 of the Constitution.

10. Briefly explain the Appellate Jurisdiction of the Supreme Court of India.

11 'A' was acquitted by sessions judge on charges of attempting to corrupt a responsible public
servant under IPC. The High Court on appeal convicted 'A' of the offence. Does an appeal by 'A' lie
to the Supreme Court as a matter of right?

12. President of India appointed a judge for the Supreme Court without consultation of chief justice
of India. Does it amount to violation of the Constitutional provisions? Decide.

13. Functions of Parliament.

14.Can speaker functioning under 10th Schedule review his decision as to disqualification ?

15. Writ of Mandamus.

16. Transfer of judges from one High Court to other.

17. Protem speaker.

18. Is president of India bound to follow the advise of the Apex Court ?

19. Write a short note on "transfer of judges".

20. Write a short note on advisory jurisdiction.

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1. Define "indemnity". Point out the rights of indemnity holder.

2. Describe the various modes of revocation of surety.
3. Write a short note. Features of contract of guarantee.
4. Liability of insurer.
5. State the rights of Bailee in the contract.
6. Analyse the nature and essentials of pledge.
7. Write a short note. a) Gratuitous Bailment. b) Pawnor
8. Point out different modes of creation of agency.
9. Point out different modes of creation of agency.
10. Describe essentials of valid ratification of agency.
11. Write a short note. a) Del Credere agent. b) Right of lien of agent.
12. Explain the relations of partners to third parties under the contract.
13. Discuss the essentials of partnership in the Partnership Act.
14. Write a short note. a) Partners Right to Indemnity b) Nature of partnership.
15. a) Explain the rules of transfer of property and title in specific goods.
16. State the rights of unpaid seller against the goods.
17. Write a short note. a) Buyer's duty. b) Implied warranties18.
19. Define contract of guarantee. What are the essentials of a valid contract of guarantee?
20. Explain the extent of the liability of the surety.
21. A has given 5,000 Rs. loan to B on the basis of surety given by C. The loan becomes payable. A
does not sue B for a year after the debt has become payable. Is C discharged from the liability?
22. Write a short note on : Contract of indemnity.
23. Explain the rights and duties of the bailee.
24. Explain who can pledge goods with exceptions.
25. A has given his radio to B for repair purpose. Explain the relationship between A and B. Give
reasons.
26. Explain the extent of the liability of the surety.
27. Write a short note on : Rights of the pledger.
28. Explain the various modes of creation of contract of agency.
29. Explain the main features of contract of agency.
30. A employs B to recover the debt of Rs. 2,000 from C. The debt cannot be recovered because of
the negligence of B. Can B claim remuneration from A for his service?
31. Write a short note on : Right of lien.
32. Explain how partnership firm will be tested.
33. Explain the rights and duties of a partner in a partnership firm.
34. A, B and C enter into a partnership agreement under which C is not liable
for the losses. D has filed a suit against A, B and C for the recovery of loan. Is C
liable?
35. Write a short note on : Dissolution of partnership firm.
36. Explain the various implied conditions and warranties in a contract of sale.
37. Define "goods" and what are the types of goods ?
38. A purchases bread from B. The bread contains poisonous matter and as a
result A suffered health problem. Can A make B liable ?
39. Write a short note on : Contract of sale.
40. Explain the nature and extent of liability of surety.
41. Discuss the liability and duties of insurer.
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42.Write short note :Co-surety.

43. Contract of indemnity.
44. Explain the essentials of contract of bailment.
45. Discuss the persons who can pledge under the contract of pledge.
46. Write short note : a) Bailor. B) Delivery of goods under pledge.
47. Explain the rights of agent under contract of agency.
48. Discuss the rules of termination of agency in the contract.
49. Write short note : a)Sub-agent. b)Factors.
50. State the relations of partners inter-se in the contract.
51. Explain registration procedure and effects of non-registration of partnership
firm.
52. Write short note; a) Rights of out going partner. B)Expulsion of a partner.
53. Define sale. Explain the differences between sale and analogous contract.
54. Discuss the implied conditions under sale of Goods Act.
55. Write short note: a) Auction sale. b) Goods.
56. Define lien. Explain different kinds of lien.
57. Define pledge. Who can pledge ?
58. 'A' finds 'B's article and voluntarily spent Rs. 2,000/- to preserve the article
and to find out the owner. 'B' the owner, has refused to pay that amount to 'A'.
'A' wants to sue 'B' to recover that amount. Advise 'A'.
59. (b) Duties of Bailee.
60. Who is an agent ? Explain the duties of an agent towards principal.
61. Explain the different modes of creation of agency.
62. What is contract of guarantee ? Explain the various modes of discharge of
surety from his liability.
63. Define contract of indemnity. What are the rights of an indemnity holder?
66. Continuing guarantee.
67. 'A' guarantees payment to 'B' of the price of five sacks of flour to be
delivered by 'B' to 'C' and to be paid for in a month. 'B' delivers five sacks to 'C'.
'C' pays for them. Afterwards 'B' delivers four sacks to 'C', which 'C' does not
pay for. Is 'A' liable for the same? Decide.
68. Write short notes on 'termination of agency'.
69. Personal liability of agent.
70. What is meant by dissolution of a partnership firm? What are the different
modes of dissolution?
71. Explain the rights and duties of partners.
72. Write short notes on: Types of partners.
73. A, B and C are partners of a partnership firm. 'C' who is an active partner
retires without giving public notice. 'X' supplies the goods to the firm after 'C's
retirement. Advise
'X' as to the recovery of amount of the goods supplied.
74. Discuss the right of an unpaid seller towards the goods.
75. Define contract of sale. Explain distinction between sale and agreement to
sell.
76. Write a short note on 'Stoppage in transit'.
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77. A, B and C are joint owners of a horse. The horse is in possession of 'C' with
the permission of A and B. They have not authorised 'C' to sell the horse, 'C'
sells the horse to
'D' a bona fide purchaser. A and B contend that the sale is void. Decide.
78. Define Contract of Indemnity. State the distinction between Contract of
Indemnity and Contract of guarantee.
79. Explain the rights of indemnity holder.
80. Discuss the different modes of discharge of the liability of surety.
81. 'A' advances to 'B', a Minor Rs. 1,000 on the guarantee of 'C'. On demand
for repayment 'B' refuses to repay on the ground of his Minority. Can 'A'
recover the amount from 'C'?
82. Define Contract of bailment and what are the features of Contract of
bailment ?
83. Write a short note on duties of Bailee.
84. Define Pledge. State the Circumstances in which a non-owner can make a
valid Pledge. 85. 'A' finds a dog and makes a reasonable efforts to trace the
true owner, but could not find him. Later 'A' sells that dog to 'B' who buys it
without knowing that 'A' was merely a finder. Can the true owner recover the
dog from 'B' ? Decide.
86. Who is an Unpaid seller? Explain the various rights of an unpaid seller.
87. Duties of an Agent.
88. Define Agency by Ratification. Explain its essential elements.
89. 'A' an agent of 'B', sells the goods to 'C' without making proper enquiry as
to the solvency to 'C'. At the time of sale 'C' was an insolvent. Principal 'B'
wants to sue the agent. Advise the Principal.
90. Discuss the nature and mode of determining the existence of partnership.
91. Undisclosed Principal.
92. Define Partnership. Explain the rights of Partners.
93. 'A' and 'B' form trading Partnership for 5 years. After 2 years, 'A' is convicted of travelling on
the Railway without ticket. 'A' files suit for dissolution of the firm on the ground of his own
misconduct. Will he succeed ?
94. Explain the rules of as to the passing of property under a contract of sale of goods to the buyer
from a seller.
95. Conditions and Warranties.
96. Explain the concept of 'Caveat Emptor'. State the exceptions.
100. 'A' agrees to supply 100 barrels of groundnut oil to 'B'. 'A' despatches 120 barrels. 'B' refuses
to receive on the ground that 'A' has supplied excess oil. Advise 'A'.
101. Explain the various modes of discharge of surety from his liability.
102. Define indemnity. Discuss the rights of indemnity holder.
103. 'A' guarantees payment to 'B' of the price of five sacks of flour to be delivered by B to C and
to be paid for in a month. 'B' delivers five sacks of flour to 'C'. 'C' pays for them. Afterwards 'B'
delivers four sacks of flour to C for which C does not pay. What is the liability of 'A' ? Give reason.
104. 'A' sold certain cattle on the instruction of 'B'. It subsequently turned out that the cattle did not
belong to 'B' but to 'C'. 'C' recovered the loss from 'A' and 'A' in turn sued 'B' for indemnity. Decide.
105. Define bailment. Explain the duties of a bailee.
106. Define pledge. Who can make a valid pledge ?
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107. 'A' while walking on the road found a jewel and took that jewel to a goldsmith 'B' to know its
genuinity. Goldsmith 'B' after testing, refuses to return the jewel. Decide.
108. 'A' delivers a rough diamond to 'B', a jeweller, to be cut and polished, which is accordingly
done. 'A' refuses to pay form the services of 'B'. Decide.
109. a) Explain the rights and duties of agent.

110. Explain the different modes of termination of agency.

111. Owner 'A' hand over the horse to his agent 'B' and instructed not to sell under any
circumstances. But 'B' sells it to 'C' for Rs. 50,000/- and misappropriated the money. Decide.
112. Agency by ratification.
113. Define partnership. Distinguish it from an Hindu undivided family.
114. Explain the liability of the partners to third parties and among themselves.
115. Goodwill of a business.
116. Types of partners.
117. Who is an unpaid seller ? What are his rights ?
118. Discuss the doctrine of caveat emptor with exceptions, if any.
119. 'A' bought a bun at a baker's shop. The bun contained a stone crystals on which A broke one of
his teeth. Decide.
120. 'A', 'B' and 'C' are joint owners of a diamond. It is in possession of A with the permission of 'B'
and 'C'. 'A' sells it to 'D'. 'D' buys in good faith without any notice that A has no authority to sell.
Will 'D' gets good title ? Decide.
121. Define contract of guarantee and write the difference between contract of guarantee and
indemnity.
122. Write a short note on "Rights of the Surety".
123. Define contract of Indemnity. Explain the rights of indemnity holder.
124. 'A' pays to 'B' a minor, Rs. 2,00,000/- on the guarantee of 'C'. 'A' on demand for repayment
from 'B'. 'B' refuses to pay on the ground of his minority can 'A' recover the amount from 'C' ?
Decide.
125. Define Bailment. Explain the features of Bailment with decided cases.
126.Write a short note on "Rights of Bailor".
127. What is pledge ? Who can make a valid pledge ? Explain.
128.'A' hires a horse carriage of 'B'. The horse is unsound, But 'B' is not aware of it. 'A' is injured
while using that horse carriage. Is 'B' responsible to 'A' for the injury ? Decide.
129. Explain the right and duties of Agent.
130.Write a short notes on Sub-Agent and Substituted Agent
131. Explain the modes of termination of Agency.
132.'A' an agent of 'B', sells the goods to 'C' without making proper enquiry as to the solvency of 'C'.
At the time of sale 'C' was an insolvent. principal 'B' wants to recover the goods from 'C'. Can he
succeed ?
133. Discuss the mutual rights and liabilities between the partners of a firm.
134. Write short note on effects of non-registration of partnership firm.
135. Explain the different grounds on which a firm is dissolved by the order of a court.
136. Ganesh and Uday agreed to invest 2 :1 to start a firm. They earned a profit of Rs. 3,00,000 in a
year. How they can share the profit among themselves ?
137. Who is unpaid seller ?
138.Right of stoppage-in-transit.
139. Explain implied conditions provided under Sale of Goods Act.
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140.A seller undertakes to supply 100 tons of Rice of the kin shown as sample. The Rice when
supplied, did not correspond or similar to one showned as sample. Has the buyer any remedy
against the seller ?
141.Explain the rights of the Surety.
142. Write a short note on 'Rights of Indemnity - holder'.

143. Define Guarantee and explain its features.

144.'B' owes to 'C' a debt guaranteed by 'A'. The debt becomes payable. 'C' does not sue 'B' for a
year after the debt has become payable. Is 'A' discharged from his suretyship ? Decide.
145. Explain the duties of a Bailee.
146. Write a short note on 'Pledge'.
147 Define Lien. What are the Rights of a Bailee in respect of lien ?
148 'A' finds a dog and makes a reasonable efforts to trace the true owner, but could not find him.
Later 'A' sells that dog to 'B', who buys it without knowing that 'A' was merely a finder. Can the true
owner recover the dog from 'B' ? Decide.
149. Explain the different modes of creation of agency.
150. Write a short note on 'Personal liability of agent'.
151. What is Agency ? What are the rights of an agent ?
152. 'P' gives authority to 'A' to sell P's land and to pay himself, out of the proceeds, the debt due to
him from 'P'. Subsequently 'P' revokes the authority given to 'A'. Can he do so ? Advise 'P'.
153. Explain the different modes of dissolution of partnership firm.
154. Write a short note on Implied authority of a partner.
155. Explain the admission and retirement of partners in a partnership firm.
156. A and B, partners of a firm, admit 'M', a minor, as a partner.What are the consequences of this
admission of a minoras a partner ? Decide.
157. Explain implied conditions and warranties provided under the Sale of Goods Act.
158. Write a short note on 'Stoppage in transit'.
160. Define contract of sale and distinguish sale from an agreement to sell.
162. 'A' buys a diamond necklace from 'B' and pays for it, but leaves it in the possession of 'B'. 'B'
sells the same 'necklace to 'C' for a higher price. Does 'C' acquire a better title in the necklace ? Can
'A' institute a suit against 'C' for recovery of the necklace ? Decide.
163. Define contract of indemnity. State the distinctions between contract of indemnity and contract
of guarantee.
164. What is contract of guarantee? Explain the various modes of discharge of surety from his
liability.
165. Write a short note on 'Rights of the Surety.'
166. 'A' guarantees payment to 'B' of the price of five sacks of flour to be delivered by 'B' to 'C' and
to be paid for in a month. 'B' delivers five sacks to 'C'. 'C' pays for them. Afterwards 'B' delivers four
sacks to 'C', which 'C' does not pay for. Is 'A' liable for the same ? Decide.
167. What is Bailment ? Explain its important features with decided cases.
168. Define pledge. Who can make a valid pledge ? Explain.
169. Write a short note on 'Right of Lien.'
170. 'A' hires a carriage of 'B'. The carriage is unsafe, but 'B' is not aware of it. 'A' is injured while
using that carriage. Is 'B' responsible to 'A' for the injury ? Decide.
171. What is agency by ratification ? Explain its essentials.
172. Explain the duties of an agent.
173. Write a short note on 'termination of agency.'
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174. 'A' an agent of 'B', sells the goods to 'C' without making proper enquiry as to the solvency of
'C'. At the time of sale, 'C' was an insolvent. Principal 'B' wants to sue the agent. Advise,the
principal.
175. What is partnership ? State the types of partners.

CONTRACT - II

I. DISCUSS THE POWERS & FUNCTIONS OF

PRESIDENT:
I) Introduction: The President is the Head of the State and the Formal Executive. He is part of the
Central Executive which is headed by the Prime Minister. The Central Executive also consists of the
Council of Ministers.

II) THE PRESIDENT:

Art. 52 provides that there shall be a President of India. Arts. 54, 55 and 56 provide that
he is to be elected by an electoral college in accordance with the system of proportional
representation by means of a single transferable vote by secret ballot and his tenure is for a period of
5 years from the date on which he enters upon his office after taking an oath/affirmation u/Art. 60 of
the Constitution of India to defend the Constitution of India and the law.
The Constitution formally vests many functions in the President but he has no function to
discharge in his discretion or in his individual judgment. He acts on ministerial advice and therefore
the Prime Minister and the Council of Ministers constitute the real and effective executive.
III) POWERS AND FUNCTIONS OF PRESIDENT:
The President of India has been given the following powers and functions:
1. Judicial
2. Legislative
3. Executive
4. Diplomatic powers
5. Military powers

1. Judicial Powers:
1) The Central Executive appoints the Judges of the Supreme Court and the High Courts.
2) Whether a member of a House of Parliament has become subject to a disqualification or not is
decided formally by the President though in effect by the Election Commission.
3) Power of Pardon: Art. 72 empowers the President to grant pardon, reprieve, respite or remission
of punishment, to suspend, remit or commute the sentence of any person convicted of any offence in
all cases –
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a) where the punishment or sentence is by a court martial;

b) where the punishment or sentence is for an offence against a law relating to a matter to
which the Union’s Executive power extends; and
c) of a death sentence
This however does not affect the power conferred by law on any officer of the Union armed
forces to suspend, remit or commute a sentence passed by a court martial as well as the power
exercisable by the State Executive to suspend, remit or commute a death sentence.
 The power to grant pardon may be exercised either before conviction by amnesty to the accused
or under-trial prisoner or after conviction. In doing so, the President does not amend or modify
or supersede the judicial record. The judicial record remains intact and undisturbed. The
President acts under a Constitutional power the nature of which is entirely different from the
judicial power and cannot be regarded as an extension of it.
 The President acts in this matter on the advice of the HM.
Caselaw: UoI vs. Sriharan (2016)
In this case, the Hon'ble Supreme Court has held that the power u/Arts. 72 and 161 is to be
exercised with great care and caution and is subject to judicial review.
 The judicial review can be had on very limited grounds like non-application of mind, mala fides,
arbitrariness like caste or political reasons, irrelevant consideration, etc.
 The Apex Court has held that pardon is an act of grace and therefore it cannot be demanded as a
matter of right in the case of Teher Singh vs. UoI (Assassination of Prime Minister of India,
Indira Gandhi) The President’s pardoning powers does not extend to a punishment for contempt
of Court as the Court derives its power from the Constitution.
 Art. 161 vests a parallel power to grant pardon in the State Governor.

2. Legislative powers (and Financial Powers):

The President in theory has extensive legislative powers and some of them are:
1) The President has the power to summon, prorogue and address the Parliament at the
commencement of the 1st session. He can also summon a joint sitting of both the Houses of the
Parliament to resolve a deadlock. He also has the power to dissolve the Lok Sabha.
2) The President can appoint any member of the Lok Sabha to preside over its proceedings when
both Speaker and Deputy Speaker’s Office fall vacant.
3) The President may send messages to either House of the Parliament in regard to any Bill or any
other matter
4) Without the previous consent of the President, a Bill to create or reorganize a state, a Money Bill,
a Bill involving expenditure from the Consolidated Fund of India cannot be tabled in the
Parliament.
5) No Bill can become an Act without the President’s signature
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6) The President nominates 12 members to the Rajya Sabha from persons having special knowledge
or practical experience in terms of arts, science, literature or social sciences. He also nominates 2
Anglo-Indian members to the Lok Sabha.
7) Ordinance making power u/Art. 123 to promulgate such ordinances as the circumstances appear
to him to require when
a) both Houses of Parliament are not in session and
b) he is satisfied that circumstances exist which render it necessary for him to take immediate
action.
However, if only one House is in session, an ordinance may be promulgated. As the
ordinance can remain in force only for a short duration and has to be laid before each House of
Parliament when it reconvenes it is subject to the control of Parliament. It shall cease to operate at
the expiry of six months from the date of assembly of the Parliament unless a resolution is passed
disapproving it.
3. Executive powers:
 Art. 53 lays down that the executive power of the Union shall be vested in the President and it
shall be exercised by him in accordance with the Constitution either directly or through officers
subordinate to him. Art. 77 provides that all executive action of the Government of India shall be
expressed to be taken in the name of the President.
 Executive power has not been defined in the Constitution. In the case of Ram Jawaya Kapur vs.
S. of Punjab, the Hon'ble Supreme Court has observed that ordinarily executive power connotes
the residue of government functions which remains after the legislative and judicial functions are
taken away.
Executive powers of the President are as follows:
1) The President is ex officio Supreme Commander of the defence forces
2) The President has the power to appoint the PM
3) The President has the power to appoint Governors, Lieutenant Governors, Chief Justices.
4) The President has the power to appoint Union Ministers, Chief Election Commissioner and other
Election Commissioners, Comptroller and Auditor General, Chairman and Members of UPSC,
Members of Finance Commission and Inter-State Council, Commissioner of SC, ST, Backward
Classes & Minorities, etc.
5) The President governs the Union Territories through administrators or Lieutenant Governors. The
above mentioned officials hold the office during the pleasure of the President which means that the
President has the power to remove them from their post.
However, this power is to be exercised subject to the procedure prescribed the bye Constitution.
It is to be noted that he has to exercise his executive powers on the advice of the Council of
Ministers.

4. Diplomatic powers:
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 As the Head of the State, the President sends and receives Ambassadors and other diplomatic
representatives. All treaties and internal agreements are negotiated and concluded in the
name of the President though subject to ratification by Parliament.

5. Military powers:
 As Supreme Commander of the Defence Forces of the Country, the President has powers to
declare war and peace. However, the exercise of these powers by the President is regulated
by law.
 The Parliament is empowered to regulate or control the exercise of the military powers by the
President. Thus, the military power is subordinate to his executive power which is
exercisable by him on the advice of the Cabinet.

6. Emergency provisions:
Part XVIII of the Constitution deals with emergency provisions. When the security of the country is
threatened the President can proclaim a National Emergency u/Art. 352, the President can
promulgate a State Emergency u/Art. 356 and promulgate Financial Emergency u/Art. 360 of the
Constitution.

IV)Conclusion:
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CONTRACT - II

I. CONTRACT OF GAURENTY:
1.RIGHT OF SURIETY:
Introduction: After making a payment and discharging the liability of the principal debtor, the
surety gets various rights. These rights can be studied under three heads:
(i) rights against the ,principal debtors.
(ii) rights against the creditor, and
(iii) rights against the co-sureties.

I) Rights against the Principal Debtor

The surety has the following two rights against the principal debtor.

1) Right of subrogation(sec140):
The surety acquires all the rights which the creditor had against the principal debtor.
Section 140 lays down, where a guaranteed debt has become due, or default of the principal debtor
to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he
is liable for, is invested with all the rights which the creditor had against the principal debtor. This
right of the surety is called 'subrogation'. It means that on payment of the guaranteed debt, or
performance of the guaranteed duty, the surety steps into the shoes of creditor.

Examples : B is indebted to C, and A is surety for the debt. C demands payment from A and, on his
refusal, sues him for the amount, A defends the suit, having reasonable grounds for doing so, but he
is compelled to pay the amount of the debt with costs. He can recover from B the amount paid by
him for costs, as well as the principal debt.

2) Right of Indemnity: Section 145 of the Act vests in the surety another right i.e, right of
indemnity. In every contract of guarantee, there is an implied promise by the principal debtor to
indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum he
has rightfully paid under the guarantee. The surety is not entitled to claim any sums which he has
paid wrongfully.

Examples :A guarantees to C, to the extent of Rs. 2,000, payment for rice to be supplied by C to B.
C supplies to B rice for an amount which is less than Rs. 2,000 but obtains from A payment of the
sum of Rs. 2,000 in respect of the rice supplied. A cannot recover from B more than the rice actually
supplied.
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II)Rights Against the Creditor

1) Right to securities(sec141): When the surety has paid off the liabilities of principal debtor to the
creditor, he becomes entitled to claim all the securities which were given by the principal debtor to
the creditor. Surety has right to all securities whether received before or after the creation of the
guarantee (Section 141). It is also immaterial whether the surety has knowledge of those securities
or not.
Case: State of M.P vs Kaluram (timber case)
For example, on C's guarantee A lent Rs. 5,000 to B. This debt is also secured by an assignment by
deed as security for the debt, the lease of B's house. B defaults in paying the debt and C has to pay
the debt. On paying off B's liabilities, C is entitled to receive the assignment deed in his favour.

2) Right to share reduction:

3)Right to set off: When the creditor sues the surety for payment of principal debtor's liabilities, the
surety can claim set off, or counter claim if any, which the principal debtor had against the, creditor.

III) Rights Against the Co-sureties

1.Effect of release of surety(sec 138): When the repayment of debt to the principal debtor is
guaranteed by more than one person, they are called Co-sureties. The co-sureties are liable to
contribute, as agreed, towards the payment of guaranteed debt. Section 138provided that where
there are co-sureties, the release by the creditor of one of them does not discharge the others, nor
does it free the surety so released from his responsibility to the other sureties. Thus when the
payment of debt or performance of duty is guaranteed by co-sureties and the principal debtor has
defaulted in fulfilling his obligation and thereupon the creditor compels only one or more of the co-
sureties to perform the whole contract, the co-sureties performing the contract are entitled to claim
contribution from the remaining co-sureties.

2.Right to contribution: According to Section 146 and 147, in the absence of any contract to the
contrary, the co-sureties are liable to contribute equally. This principle will apply even when the
liability of co-sureties is joint or several, and whether under the same or different contracts, and
whether with or without the knowledge
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Conclusion:
2. DISCHARGE OF SURETY FROM LIABILITY
Introduction: Under any of the following circumstances a surety is discharged from his liability:
I) by revocation of the contract of guarantee,
II) by the conduct of the creditor, or
III) by the invalidation of the contract of guarantee

I) By revocation of the contract of guarantee

1) Notice by surety(sec 130): You have learnt that a contract of guarantee may be specific or
continuing. A specific guarantee cannot be revoked if the liability has already accrued.
EXAMPLE: if A lends B a certain sum of the guarantee of C, then C cannot revoke the contract of
guarantee. But, if A has not yet given the sum to B, even though the guarantee has been executed by
C, C may revoke the contract by giving notice.
Where the guarantee is a continuing one and extends to a series of transactions, it may
be revoked by the surety as to future transactions by giving notice to the creditor. The Act
contemplates series of distinct and separate transactions to constitute a continuing guarantee which
can be revoked by notice.
Case: Offord v Davis(Bank loan)

2) Death of surety(131): In the absence of a contract to the contrary, a continuing guarantee is

revoked by the death of the surety as to the future transactions, The estate of deceased surety is,
however, liable for those transactions which had already taken place during the lifetime of the
deceased. Surety's estate will not be liable for the transactions taking after the death of surety ‘even
if the creditor had no knowledge of surety's death.

3) Novation: A contract of guarantee is discharged by novation when a fresh contract being entered
into, either between the same parties or between other parties, the consideration being the mutual
discharge of the old contract. The original contract of guarantee comes to an end and so the surety
stands discharged with regard to the old contract.
Case: Bonar v Mandonald Case :M.S.Anirudhan v Thomas bank ltd

II) By Conduct of the Creditor

1) Variance in terms of the contract(Section 133): A surety is discharged by such conduct of the
creditor which has the effect of materially altering the terms ‘of the contract of guarantee (Section
133):.
For example, C contracts to lend B Rs. 2,000 on 1st January. A guarantees repayment, C pays the
amount to B on 30th August, A is discharged from the liability as the contract has been varied. A
surety is liable only for what he has positively undertaken in the guarantee; any alteration made
without the surety's consent, in the terms of contract between the principal debtor and the creditor,
will discharge F the surety as to transactions subsequent to the variation.
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For example, A becomes surety to C for B's conduct as a manager in C's bank. Afterwards B and C
contract, without A's consent, that B's salary shall be raised, and that he shall become liable for one -
fourth of the losses on overdrafts, B allows a customer to overdraw, and the bank loses a sum of
money A is discharged from his suretyship due to the variance made in the terms without his
consent.

2) Release or discharge of the principal debtor (Section 134): A surety is discharged if the
creditor makes a contract with the principal debtor by which the principal debtor is released, or by
any act or omission of the creditor, which results in the discharge of the principal debtor
For example, A supplies goods to B on the guarantee of C. Afterwards B becomes unable to pay
and contracts with A to assign some property to A in consideration of his releasing him from his
demands on the goods supplied. Here, B is released from his debt, and C is also discharged from his
suretyship. Or, to take another

Example, where A contracts with B for a fixed price to build a house for B within a specified time,
B supplying the necessary timber. C guarantees A's performance of the contract. B omits to supply
the timber, A is discharged from performing the contract and C is discharged from his suretyship.
But, where the principal debtor is discharged of his debt by operation of law, say, on insolvency,
this will not operate as a discharge of the surety. Also, where there are co-sureties, a release by the
creditor of one of them does not discharge other co-sureties nor does it frees the surety so released
from his responsibility to other sureties.

3) Arrangement between principal debtor and creditor (Section 135): Where the creditor,
without the-consent of the surety, makes an arrangement with the principal debtor for composition,
or promise to give him time to, or not to sue him, the surety will be discharged. However, when the
contract to allow more time to the principal debtor is made between the creditor and a third party,
and not with the principal debtor, the surety is not discharged (Section 136).

For example, C, the holder of an overdue bill of exchange drawn by A as surety for B, and
accepted by B, contracts with M to give time to B, A is not discharged. Similarly, mere forbearance
by the creditor to sue the principal debtor or to enforce any other remedy against him, in the absence
of any provision in the guarantee to the contrary, does not discharge the surety.

For example, A owes Rs. 10,000 to K. The debt is guaranteed by M. The debt becomes payable but
K does not sue A for six months after ihe debt has become payable. This will not discharge M.

4) By creditor's act or omission impairing sureties eventual remedy (Section 139): 'If the
creditor does any act which is against the right of the surety, or omits. to do any act which his duty
to the surety requires, him to do and the eventual remedy of the surety himself against the principal
debtor is thereby impaired, the surety is discharged (Section 139).

For example, B, a shipbuilder, contract to build a ship for C for a given sum, to be paid by
instalments as the work reaches certain stages (the last instalment not to be paid before the
completion of the ship). A becomes I surety to C for B's due performance of the contract. C, without
the knowledge of A, prepays the last instalment to B. A is discharged by this payment, Take another
example, A puts M as apprentice to B and gives a guarantee to B for M's fidelity. B promises on his
part that he will, at least once a month, see M makes up the cash. B omits to see as promised, and M
embezzles. A is not liable to B on his guarantee. Indemnity and Guarantee
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5) Loss of security: If the creditor parts with or loses any security given to him at the time of the
guarantee, without the consent of the surety, the surety is discharged from liability to the extent of
the value of security (Section 141).

For example, A, as surety for B, makes a bond jointly with 3 to C to secure a loan from C to B.
Later on, C obtains from B a further security for the same debt. Subsequently, C gives up the further
security. A is not discharged.

III) By Invalidation of the Contract

A contract of guarantee, like any other contract, may be avoided if it becomes void or voidable at
the option of the surety. A surety may be discharged from liability in the following cases:
1) Guarantee obtained by misrepresentation: When a misrepresentation is made by the creditor
or with his knowledge or consent, relating to a material fact in the contract of guarantee, the contract
is invalid (Section 142).

2) Guarantee obtained by concealment: When a guarantee is obtained by the creditor by means of

keeping silence regarding some material part of circumstances relating to the contracts, the contract
is invalid. (Section 143).

3) Failure of co-surety to join a surety: When a contract of guarantee provides that a creditor shall
not act on it until another person has joined in it as a co-surety, the guarantee is not valid if that
other person does not join.

Conclusion:
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II. CONTRACT OF BAILMENT:

1.Essentials of bailment and
I) Introduction: Section 148 of the Indian Contract Act reads:
 A bailment is the delivery of goods by one person to another for some purpose, upon a
contract that they shall, when the purpose is accomplished, be returned or otherwise disposed
of according to the directions of the person delivering them. The person delivering the goods
is called the "bailor". The person to whom they are delivered is called the "bailee".
 For example, you deliver some gold to a jeweller B to make bangles for your sister. In this
case you are bailor and B is bailee and by delivering gold to B, a reletionship of bailment is
created between you and the jeweller.

II) Essentials of Valid Bailment

If you analyse the definition of bailment you will find that for creating a relationship of bailrnent the
following features must be present:
i) Agreement (a valid contract)
ii) Delivery of goods
iii)Delivery upon contract
iv) Purpose
v) Return of the specific goods

i) Agreement:
 For creating a bailment the first essential requirement is the existence of an agreement
between the bailor and the Bailee. As you have read just now bailor is the person who bails
the goods and Bailee is the person to whom the goods are bailed.
 The agreement between the bailor and Bailee, may be either express or implied. And all the
essential elements of a valid contract must be present in it. The essential elements such as
offer, consideration, contractual capacity, intention, etc. must be a part of the bailment.
Without the presence of these essential elements , the contract cannot be enforceable in a
court of law. However, out of these, a contract of bailment can be valid without
consideration.
There are two types of bailment.
 Gratuitous Bailment: Bailment without any consideration.
 Non-Gratuitous Bailment: Bailment with consideration.

ii) Delivery of goods

 For bailment, it is necessary that the goods should be delivered to the bailee. It is the essence
of the contract of bailment. It follows that bailment can be of movable goods only. It is
further necessary that the possession of the goods should be voluntarily transferred and is in
accordance with the contract.
 For example, A, a thief enters a house and by showing the revolver, orders the owner of the
house to surrender all ornaments in the house to him. The owner of the house surrenders the
ornaments. In this case although, the possession of goods has been transferred but it does not
create bailment because the delivery of goods is not voluntary.
 Delivery of possession may be actual or constructive. Actual delivery means actual
physical transfer of goods from one person to another. For example, when a person gives his
scooter for repair to workshop, it is actual delivery. When physical possession of goods is not
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actually given but some such act is done which has the effect of putting the goods in the
possession of bailee, or putting the goods in the possession of any other person authorised by
the bailee to hold them on his behalf, it amounts to constructive delivery. Sometimes the
other person may . already be in possession of the goods of the bailor, and subsequently a
contract of bailment is entered into, whereby the other person promises to keep the goods as
bailee. This also amounts to constructive delivery of the goods. A railway receipt is a
document of title to goods, a transfer of the railway receipt effects a constructive delivery of
the goods.

Case law: kaliaperumal pillai vs visalakshmi

Held: the goldsmith was not held liable because the bailment, in this case, ended when the lady
received the jewellery from the goldsmith every night

iii)Delivery upon contract

As mentioned above, the delivery of the goods from the bailor to the bailee must be after a contract
is created between both the parties. The contract should have the details of the transfer of the goods
and its return. However, the contract can either be “expressly signed by the parties” or “implied by
the parties.
Case law: ram gulam vs state of up

Held: the ornaments were not made over to the Government under any contract whatsoever; in fact
the ornaments were not at all handed over by the plaintiffs to the Government. The Government,
therefore, never occupied the position of a bailee and is not liable as such to indemnify the
plaintiffs.

Case law: state of gujarat vs memon mahomed haji hasan

Held:

iii) Purpose:
In a bailment, the goods are delivered for some purpose. The purpose for which the goods are
delivered is usually in the contemplation of both the bailor and the bailee. There must be a specific
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purpose for which the goods are transferred from the bailor to the bailee. As per Section 153 & 154,
the contract of bailment might be terminated if the bailee acts inconsistently or makes unauthorised
use of the goods. Specific purpose is very important and the parties should abide by the contract.
iv) Return of the specific goods
It is important that the goods which form the subject matter of the bailment should be returned to
the bailor or disposed oi according to the directions of bailor, after the accomplishment of purpose
or after the expiry of period of bailment. Where goods are transferred by the owner to another, in
consideration of price, it is a safe. Similarly, where the goods are not to be delivered back in specie
but their price is paid, it not a bailment. Again, where money is deposited by a customer with a bank
in a current, savings or fixed deposit account, and, therefore, there is no obligation to return the
identical money but an equivalent of it, it is no bailment. But what is thus created is a relationship.
of creditor and debtor. ‘But if valuables or even coins or notes in a box are deposited for safe
custody there is a contract of bailment, for these are to be returned as they are, and not their
monetary value.

Other common examples of a contract of bailment are where a watch is given for repairs, or
diamonds are given for being set in a gold ring. In both these cases, the same watch or the same
diamonds, should be returned after the purpose for which they were given, has been fulfilled. A
pledge of a jewel on the security of which money is borrowed, gold jewels delivered to a bank for
safe custody, goods delivered to a railway company for being carried and delivered to the
consignee, are all examples of bailment.

Conclusion:
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2.Duty of bailee
I) Introduction: Section 148 of the Indian Contract Act reads:
 A bailment is the delivery of goods by one person to another for some purpose, upon a
contract that they shall, when the purpose is accomplished, be returned or otherwise disposed
of according to the directions of the person delivering them. The person delivering the goods
is called the "bailor". The person to whom they are delivered is called the "bailee".
 After the accomplishment of the purpose, the Bailee needs to return these goods to the Bailor
or dispose of them according to the directions of the Bailor. Let us now discuss the duties of
bailee .

II) Duties of a Bailee

A bailee has the following duties:
1. Duty to take reasonable care of the goods bailed: Section 151-152
 Section 151 of the Indian Contract Act lays down the degree of care, which a bailee should
take, in respect of goods bailed to him. The bailee is bound to take as much care "f the goods
bailed to him as a man of ordinary prudence would, under similar circumstances, take of his
own goods of the same bulk, quality and value as the goods bailed. The standard of care is
same whether the bailment is gratuitous or for reward. So a bailse is liable when the goods
suffer loss due to the negligence on the part of bailee.
 However, under Section 152 of the Act, the standard of care of ordinary prudent man c$n be
increased by entering into a contract, between the bailor and the bailee. In that situation the
bailee, in order to save himself from any liability, would be bound to take as much care, as
provided by the terms of contract. In the absence of any such contract, if the bailee has taken
care as an ordinary prudent man of the goods bailed, he is not responsible for the loss,
destruction or deterioration of the goods bailed.
Case law: Blount vs war office,
a house was demanded by the War office which belonged to the plaintiff. He was, however,
allowed to keep certain articles in a room of the house which he had locked.

Held: The court held that the War office did not take of the goods as an owner would have
and hence the War office was held liable to pay for the loss incurred.[8]

2) Not to make any unauthorised use of goods(s 154)

 The bailee is under a duty to use the bailed goods in accordance with the terms of bailment.
If bailee does any act with regard to the goods bailed, which is not in accordance with the
terms of bailment, the contract is voidable at the option of the bailor. Besides it, the bailee is
liable to compensate the bailor for any damage caused to the goods. by an inconsistent use of
the goods bailed. If he makes unauthorised use of goods, Bailee would not be saved from his
liability even if he has taken reasonable care of the ordinary prudent man. For example, A
lends his car till B to be taken to Delhi from Hyderabad. The car was to be driven by B
himself. B takes along with him a friend C, who has been driving his car for the .last 10
years. B instead of going to Delhi, goes to Calcutta. The contract becomes voidable at the
option of the bailor. On way to Calcutta, B allows C to drive the car. Inspite of the fact that
C, in accordance with the directions of B, drives the carat a very slow speed, an accident
takes place and the car is damaged. A is entitled to be compensated for the loss.

3) Duty not to mix bailor's goods with his own goods: Sections 155 to 157
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Next duty of the bailee is to keep the goods of the bailor separate from his own. Sections 155 to
157 of the Act lays down this duty in the following ways:
i) If the bailee, with the consent of the bailor, mixes the goods of the bailor with his own goods, the
bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture
thus produced (Section 1-76].

ii) If the bailee, without the consent of the bailor, mixes the goods of the bailor with his goods, and
the goods can be a separated or divided, the property in the goods remains in the parties
respectively; but the bailee is bound to bear
the expense of separation or division, and any damages arising from the mixture (Section 156).
For example, A bails 100 bales of cotton marked with a.particular mark to B. B, without A's
consent, mixes these 100 bales wilh other bales of his own, bearing a different mark, A is entitled to
have his 100 bales returned, and B is bound to bear all expenses incurred in the separation of the
bales, and any other incidental damage.

iii) If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods,
in such a manner that it is impossible to separate the goods bailed from the other goods and deliver
them back, the bailor is entitled to be compensated by the bailee for the loss of the goods (Section
157).
For example A bails a barrel of cape flour worth Rs. 50 to B. B without A's consent mixes the
flour with country flour of his own, worth Rs. 20 a barrel. B must compensate A for the loss of his
flour. Where a bailee mixed his own goods with those of the bailor and when ordered to return the
goods of the bailor he offered to return the goods without sorting them out. It was held that the
bailor was entitled to refuse to take delivery in toto and claim compensation for loss or damage.

4) Duty not to set up adverse title:

The bailee is duty bound not to do any act which is inconsistent which the title of the bailor. He
should not set up his own title or the title of a third party on the goods bailed to him.

5) Duty to return the goods:

It is the duty of the bailee to return or to deliver the goods according to the directions of bailor,
without demand, on the expiry of the time fixed or when the purpose is accomplished. If he does not
return or deliver as directed by the bailor, or tender the goods at the proper time, he becomes liable
to the bailor for any loss, destruction or deterioration of the goods from that time. He is liable even
without his negligence.
For example, a book-binder kept books beyond the time allowed to him for binding, and they were
lost in an accidental fire, the binder is liable. If however, the bailment is gratuitous, then the bailee
will have to return the goods loaned, at any time on demand by the bailor, even though the goods
were lent for a specified time or purpose. But if on the faith of such loan made for a specified time
or purpose, the borrower has acted ip such a manner that the return of the thing lent before the time
agreed upon would cause him loss exceeding the benefit actually derived by him from the loan the
lender must, if he compels the return, indemnify the borrower for the amount in which the loss so
occasioned exceeds the benefit so derived.

6) Duty to return accretions to the goods: In the absence of any contract to the contrary, the
bailee4must deliver to the bailor, or according to his directions, any increase or profit which have
accrued from the goods bailed.
For example, A leaves a cow in the custody of B to be taken care of. The cow has a calf. B is
bound to deliver the calf as well as the cow to A.
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III.Duties of a bailor
Duties of a bailor are as follows:
1. It is the duty of a bailor to disclose all faults. If bailor fails to disclose such faults then he will be
responsible for the damage caused to goods or loss suffered by the bailee.
2. Also, the bailor is under the duty to pay the extraordinary expenses incurred by the bailee for
such bailment.
3. It is the duty of the bailor to accept the goods after the purpose for which such goods were bailed
is accomplished.
4. It is the duty of the bailor to indemnify the bailee for the cost incurred due to the defective title
of goods bailed to the bailee.

IV.Conclusion:
We can understand that Bailment is a legal relationship in which there is transfer of possession of
goods from one party (Bailor) to another (Bailee) for a certain period of time with a specific purpose
upon a contract (either express or implied). The two parties in the entire process are conferred with
certain duties, rights and liabilities as per the Indian Contracts Act, 1872.
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3.Rights of bailee
I) Introduction: Section 148 of the Indian Contract Act reads:
 A bailment is the delivery of goods by one person to another for some purpose, upon a
contract that they shall, when the purpose is accomplished, be returned or otherwise disposed
of according to the directions of the person delivering them. The person delivering the goods
is called the "bailor". The person to whom they are delivered is called the "bailee".
 After the accomplishment of the purpose, the Bailee needs to return these goods to the Bailor
or dispose of them according to the directions of the Bailor. Let us now discuss the Rights of
bailee .

II) Rights of a Bailee

The duties of bailor are the rights of bailee and bailee can enforce his rights against the bailor by
suing him in case of a default. The rights of bailee are as follows.

1) Right to claim damages(Section 150): If the bailor has bailed the goods, without disclosing
the defects in the goods, and the bailee has suffered some loss, the bailee has a right to sue the bailor
for damages. A hires a carriage of B. The carriage is unsafe, though B is cot aware of it, and A is
injured. B is responsible to A for the injury (Section 150).

2) Right to claim reimbursement or expenses or remuneration (Section 158).: In case of

non-gratuitous bailment the bailee has a right to recover from the bailor, all necessary expenses,
which the bailee had incurred for achieving the purpose of bailment. In case of a gratuitous
bailment, bailee has a right to recover from the bailor, all extraordinary expenses, borne by the
bailee lor the purposes of bailment (Section 158).

3) Right to recover losses or compensation (Section 164).: It is a right of bailee to recover

from the bailor, all losses suffered by him by reason of the fact that the bailor was not entitled to
make the bailment of the goods or to receive back the goods, or to give directions regarding them
(Section 164).

4) Right to deliver goads to any one of the joint bailors(Section 165).: If the goods are
owned and bailed by more than one person, the bailee has a right, in the absence of a contrary
contract, to deliver back the goods to ally one of the joint owne:s, or may deliverthe goods back
according to the dircctioris of, one joint owner, without the consent of all. (Section 165).

5) Right to deliver the goods to bailor even if his title is defective(Section 166): If the title
of bailor Is defective and the bailee, in good faith returns the goods to the bailor or according to the
directions of bailor, the bailee is not liable to the true owner in respect of such delivery (Section
166).

6) Right to Sue for Breach of Bailment Contract(Section 180-181).:

Sec180:if bailor is failure one of part of his performance ther is a right to baliee to cliam suc right
through legal action.
If a third person wrongfully deprives the bailee of the use or possession of the goods bailed or
causes them damage, the bailee is entitled to use the same remedies as the owner would have used
in the same case if no bailment had been made, and either the bailor or the bailee may sue a third
person for such deprivation or injury.
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S. 181 − Any relief or compensation obtained in any such suit should be dealt with in accordance
with the bailor's and bailee's respective interests.
7.Right to lien: When the bailee, in accordance with the purpose of agreement has rendered any
service involving the exercise of labour or skill, to the goods bailed, and his lawful payments are not
made by the bailor, the bailee has a right to retain unless there is a contract to the contrary, the
goods bailed, until he received his remuneration for the services rendered by him. This right to
retain goods is known as bailee's lien (Section 170).

The bailee has a right of lien in respect of charges due to him for work of labour done in respect of
goods bailed. As you have already read, the right of lien is a right to detain goods belonging to
another, by a person in possession, until the sum claimed or other demand of the person in
possession is satisfied.
The Indian Contract Act has dealt with the following kinds of lien:
(i) Lien of a finder of goods (Section 168);
(ii) Particular lien of bailee (Section 170);
(iii) General lien of bankers, factors, wharfingers, attroneys and policy brokkrs (Section 171);
(iv) Lien of Pawnees (Sections 173; 174); and
(v) Lien of agents (Section 221),

Possession of goods is necessary to claim the right of lien. the possession must be rightful, not for a
particular purpose and lastly it should be continues

 A lien may be either a particular lien or a general lien.

i.Particular Lien(Section 170: A lien which can be exercised only on goods in respect of which
some payment is due is called particular lien. Where the bailee has, in accordance z with the
purpose of the bailment, rendered any service involving the -exercises of labour or skill in
respect of the goods bailed, he has, in the absence of a contract to the contrary, a right to retain
such goods until he received due remuneration for the services he has rendered in respect of
them (Section 170).

For example, A delivers a rough diamond to B, a jeweller, to be cut and polished, which is
accordingly done. B is entitled to retain the stone till he is paid for the service he has rendered.
Again, A gives cloth to B, a tailor, to make into a coat. B promises A to deliver the coat as soon
as it is finished, and to give a three months' credit for the price. B is not entitled to retain the
coat. As a general rule a bailee is entitled only to particular lien, which means the right to retain
only that particular property in respect of which the charge is due. The right is available subject
to certain important conditions. The foremost among them is that the bailee must have rendered
some service involving the exercise of labour or skill or expenses incurred in respect of the
goods bailed.

Further, a bailee's right of lien arises only where "Labour and skill" have been used so as to
confer an additional value on the article. So, a person who takes an animal for feeding has no
lien, but a veterinary surgeon who has treated the animals has right of lien. Further conditions
are that the contract has been fully in accordance with the contract, and goods, as you already
know, are still in possession of the bailee and there exists no contract for payment of price in
future.

ii)General Lien Section 171: The right of general lien, as provided for in Section 171, means
the . right to hold the goods bailed as security for a general balance of account. Whereas right of
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particular lien entitles a bailee to detain only that particular property in respect of which charges
are due. Right of general lien entitles the bailee to detain any , goods bailed to him for any
amount due to him whether in respect of thdse goods or any other goods.

The right of general lien is privilege and is specially conferred by Section 171 on certain kinds
of bailees only.
They are
1. Bankers,
2. Factors,
3. Wharfingers,
4. Attorneys of a high court, and
5. Policy brokers.
1.Bankers:

2.Factors,

3.Wharfingers,

4.Attorneys of a high court, and

5.Policy brokers

IV.Conclusion:
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Bailment is a formal agreement between a bailor and a bailee in which the bailor gives possession of
his products to the bailee for a clearly defined objective. When that objective is accomplished, the
Bailor delivers his products to the Bailee. Bailor can also tell the Bailee to discard or dispose of the
products in accordance with bailor guidelines. The person who gives another person possession of
his personal possessions is referred to as the Bailor in the bailment.
III. CONTRACT OF PLEDGE:
1. Who may pledge?
I) Introduction:
 Pawn or Pledge is a special kind of bailment where a movable thing is bailed as security for
the repayment of a debt or for the performance of a promise. As per section 172 of the Indian
Contract Act, 1872, a Pledge is a contract where a person deposits an article or good with a
lender of money as security for the repayment of a loan or performance of a promise. Pledge
is also known as a pawn. The depositor or the bailor is the Pawnor and the bailee or the
depositee is the Pawnee.

II) WHO MAY PLEDGE

i) The owner, or his authorised agent:
As you know that normally only the owner of goods can pledge them and that no one can pass a
better title to the goods than what he himself has.

But in order. to facilitate mercantile transactions, the law has recognised certain exceptions. These
exceptions are for bonafide pledges made by those persons who are not the actual owners of the
goods, but in whose possession the goods have been left. You will now read those situations in
which a non-owner too can make a valid pledge of the goods

PLEDGE BY NON-OWNERS
1) Pledge by a mercantile agent:
2) Pledge by person in possession under voidable contract:
3) Pledge where pledger has only a limited interest:
4) Pledge by a co-owner in possession:
5) Pledge by seller or buyer in possession:

1) Pledge by a mercantile agent:

 Where a mercantile agent is, with the consent of . the owner, in possession of goods or, the
documents of title to goods, any pledge made by him, when acting in the ordinary course of
business of a mercantile agent, shall be valid, provided that the pawnee acts in good faith and
has, at the time of pledge, no notice of the fact that the agent has no authority to pledge.
The necessary conditions of validity under the section are as follows:
i) The person pledging the goods must be a mercantile agent,
ii) Mercantile agent must be in possession either of the goods or the documents of title to goods,
iii) Such possession must be with the consent of the owner. If possession has been obtained
dishonestly or by a trick, a valid pledge cannot be effected,
iv) Pledge must have been made by the mercantile agent, when acting in the ordinary course of
business of a mercantile agent,
v) The pledgee must act in good faith; and
vi) The pledgee should have no notice of the pledger's defect of title. If the pledgee knows that the
pledger has a defective title, the pledge will not be valid

2) Pledge by person in possession under voidable contract:

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 You have already read under earlier units that for the formation of a contract, the consent of
parties should be free, i.e., the consent must not have been caused because of coercion,
misrepresentation, fraud, undue influence or mistake or because of any of them. If the
consent is caused because of any of them, such contract is voidable under Section 19 or 19 A
of the Indian Contract Act, at the option of person, where consent was so obtained. Section
178 A of the Contract Act provides that where goods are pledged by a person who has
obtained their possession under a voidable contract, the pledge is valid, provided that the
contract has not been rescinded at the time of the pledge and the pledgee has acted in good
faith and without notice of the pledger's defect of title
Case law: Philps V Brook ltd

.
3) Pledge where pledger has only a limited interest:
 Where the pawner is not the absolute owner of the goods, but has only a limited interest and
he pawns it, the pledge is valid to the extent of that interest. A finder of goods, a mortgagee
or a person who has lien over the goods, may make a valid pledge of such goods, to the
extent of his interest in the goods.

For example, A finds a defective watch lying on the road. He picks it up, gets it repaired and
pays Rs. 50 for the repairs Later on he pledges the watch for Rs. 25. The true owner can
recover the watch only on paying Rs. 50 to the pledgee.

4) Pledge by a co-owner in possession:

Where the goods are owned by many persona and with the consent of other owners, the goods are
left in the possession of one of the co-owners. Such a co-owner may make a valid pledge of the
goods in his possession.

5) Pledge by seller or buyer in possession: A seller, in whose possession, the goods have been
left after sale or a buyer who with the consent of the seller, obtains possession of the goods, before
sale, can make a valid pledge, provided the pawnee acts in good faith and he has no knowledge of
the defect in title of the pawnor.

For example, A buys a cycle from B. But leaves the cycle with the seller. B then pledges the cycle
with C, who does not know of sale to B, and acted in good faith. This is valid pledge.

IV.Conclusion:
As per the above stated fact it clear that the consent given for the goods ownership must be valid.
Second thing is that the whole act must be done in good faith. If the contract is void from the
consent itself than the pledge made out of that contract will also be held void. It won't be considered
as a valid pledge. The party can revoke from the pledge only before the pledge of goods take place.
After the goods are pledge the party cannot revoke itself and say that now they don't want to pledge
the goods.
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Difference Between The Contract Of Bailment And Pledge

A few of the common differences between the bailment contract and the pledge are
discussed below.
Basis Contract of Bailment Contract of pledge

When goods are transferred from When goods are transferred from the
one party to the other for a specific pawnor to the pawnee as a security
Meaning
purpose, this is regarded as a against a debt, this is called a contract of
contract of bailment. pledge.

The main purpose of transferring

The purpose is to create security against a
Purpose the goods is to keep them in safe
claim.
custody and for repairs.

The party who transfers the goods The pawnor is the party who pledges the
Parties is the bailor. The party who goods. The pawnee is the party who
receives the goods is the bailee. receives the goods.

Considerati Consideration is mandatory in the The presence of consideration is

on case of a contract of bailment. mandatory.

The bailee cannot sell the pledged The pawnee has the right to sell the
Right to sell
goods. goods.

The goods can only be used by the

Right to
parties for the purposes mentioned The goods cannot be used by the pawnee.
Use
in the contract.

The Indian Contract Act 1872

Sections 172 to 179 cover the contract of
Sections covers the contract of bailment in
pledge.
sections 148–171.
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LOBOUR LAW
I. REGISTER TRADE UNION:
 Introduction:

 TRADE UNION: s.2(h) of the Trade Unions Act, 1926 defines trade union as - Trade Union
means any combination whether temporary or permanent formed primarily for the purpose of
regulating the relations between workmen and employers or between workmen and workmen or
between employers and employers or for imposing restrictive conditions on the conduct of any
trade or business and includes any federation of two or more trade unions.

 REGISTRATION OF TRADE UNION:

A trade union may be registered or unregistered. Under the Act registration of a Trade
Union is not mandatory and unregistered unions or associations would not in anyway be illegal.
A registered trade union means a trade union registered under the Trade Unions Act, 1926.
According to s.14, registration of a trade union under the Societies Registration Act, the Co-
operative Societies Act, the Companies Act is void. A registered Trade Union will be entitled to
various benefits, protections and immunities envisaged under the Act.

 MODE OF REGISTRATION:
According to s.4 of the Act at least 7 persons are required to form a Trade Union by
subscribing their names to the rules of Trade Union and by otherwise complying with the provisions
of the Act with respect to registration.
However, no Trade Union of workmen shall be registered unless at least 10% or 100 of
the workmen whichever is less engaged or employed in the establishment or industry with which it
is connected are members of such Trade Union on the date of making application for registration.
Under the Act, both employers and workers can get themselves registered.

Caselaw: TTD vs. Commissioner of Labour

In this case, the Hon'ble SC held that any group of employees may be registered as a Trade Union
under the Act for the purpose of regulating the relations between them and their employer or
between themselves.

 APPLICATION FOR REGISTRATION:

According to s.5 of the Act, an application for registration should be made to the
Registrar and it must be accompanied by:
(1) a copy of the rules of the Trade Union
(2) a statement of the following particulars:
a) Names, occupations and addresses of members making the application and in the case of a
Trade Union of workmen the names, occupations and addresses of the place of work of the
members of the Trade Union
b) The name of the Trade Union and address of the HO
c) The titles, names, ages, addresses and occupations of the officers of the Trade Union.
Where a Trade Union has been in existence for a year prior to making the application its application
should be accompanied by a general statement of assets and liabilities and in a case of a Trade
Union whose objects are not confined to 1 State it must be in Form A.
Moreover, every application must be accompanies by a copy of rules. Such rules must comply
with the items mentioned u/s.6 of the Act.
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The Registrar of Trade Union on receipt of the application with the rules of the Trade Union verifies
and undertakes a thorough scrutiny for compliance with the provisions of ss.5 and 6 of the Act and
he is further empowered u/s.7(1) to call for further information and u/s.7(2) he may also direct the
applicant to alter the proposed name of the Trade Union to comply with the provisions of the section
and on satisfaction that the Trade Union is in compliance with all the requirements registers the
Trade Union u/s.8 of the Act by entering in a register the particulars relating to the Trade Union.
On registering the Trade Union u/s.8 of the Act, the Registrar issues a Certificate of
Registration in the prescribed form which acts as conclusive evidence that the Trade Union has been
duly registered.

 Conclusion:
s.10 of the Act deals with this aspect. Certificate of Registration may be withdrawn or
cancelled either on application by Trade Union or Registrar may take suo motu cognizance of the
application for cancellation.
Section 28-G deals with aspect. Where the recognition of a Trade Union has been directed under
Section 28-E, the Registrar or the employer may apply in writing to the Labour Court for
withdrawal of the recognition
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II. DEFINE THE TERM INDUSTRY UNDER

INDUSTRIAL DISPUTES ACT, 1947 WITH THE HELP
OF
DECIDED CASES.
 Introduction:
The concept of social justice is integrally related and reflected in the industrial laws of our
country. As proclaimed in the preamble of the Constitution and given context by the Directive
Principles, the industrial jurisprudence of the country is founded on the basic idea of
socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and
inequalities. The laws particularly the industrial law of the country revolve on this basis
philosophy of the Constitution.

 INDUSTRY:
S.2(j) of The Industrial Disputes Act, 1947 defines industry as - “industry” means
any business, trade, undertaking, manufacture or calling of employers and includes any calling,
service, employment, handicraft, or industrial occupation or avocation of workmen.
An industry exists only when there is relationship between employers and
employees, the former is engaged in business, trade, undertaking, manufacture or calling of
employers and the latter is engaged in the calling, service, employment, handicraft or industrial
occupation and avocation.

 Judiciary Interpretation of term industry by DECIDED CASES:

1) Is Hospital an Industry:
Caselaw: State of Bombay vs. Hospital Mazdoor Sabha(1960)
In this case, the Hospital Mazdoor Sabha was a registered Trade Union of the
employees of hospitals in the State of Bombay. The services of two of its members were
terminated by way of retrenchment by the Government and the Union claimed their
reinstatement through a writ petition. It was urged by the State that the writ application was
misconceived because hospitals did not constitute an industry. The group of hospitals were run
by the State for giving medical relief to citizens and imparting medical education. The Hon’ble
Supreme Court rejected the contention of the State and held the group of hospitals to be industry.

Caselaw: The Management of Safdarjung Hospital, Delhi vs. Kuldip Singh Sethi (1967)
In this case, the Respondent, a lower division clerk in the hospital had filed a petition
u/s.33C(2) of the Industrial Disputes Act, 1947 for computation of salary, etc., due to him in the
pay scale of store keepers and the Tribunal following the decision of the Hon'ble Supreme Court
in the case of State of Bombay vs. Hospital Mazdoor Sabha held that the Hospital is an industry
and awarded him Rs.914/-. However, the Hon'ble Supreme Court observed that the hospital had
not embarked on an economic activity which can be said to be analogous to trade or business,
that there was no evidence that it was more than a place where persons could get treatment, that
the hospital was run as a department of Government and therefore it cannot be said to be an
industry and set aside the order of the Tribunal.

Caselaw: Dhanrajgiri Hospital vs. Workmen( )

In this case, the main activity of the hospital was imparting of training in nursing and the beds in
the hospital were meant for their practical training. The five Judges’ Bench of the Hon'ble
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Supreme Court by observing that since the hospital was not rendering any material service by
bringing in any element of trade or business in its activity held that it was not carrying on any
economic activity in the nature of trade or business and ruled that Dhanrajgiri Hospital was not
an industry.

2) Is Municipal Corporation an Industry:

Caselaw: D N Banerji vs. P R Mukherjee (Budge Budge Municipality case) ( )

In this case, the head clerk and a sanitary inspector of the Budge Budge
Municipality were dismissed on certain charges of negligence, insubordination and indiscipline
by the municipality and its validity was referred by the State of West Bengal to the Industrial
Tribunal for adjudication which directed the reinstatement of those persons. Against this order,
the municipality filed a writ petition under Articles 226 and 227 of the Constitution before the
Calcutta High Court but the same was dismissed. Being aggrieved by this, the municipality filed
an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court rejected the
contention of the municipality that it was not an industry after looking into the first part and
latter part of the definition and observed that the definition was apparently intended to include
within its scope what might not strictly be called a trade or business venture.

Caselaw: Abdul khan vs municipal council octroi dept (1970 )

In this case a dispute between worker and workmen in octori dept(tax collecting dept) regarding
compensation
Court held municipal is not industry.

Caselaw: Workmen of fire brigade vs K I Gosain (1970 )

Held: fire brigade not only a service but also an undertaking so fire brigade is an industry

3) Is legal firm is an industry:

Case law: NSU employee n Industrial tribunal (1962)

Held: nota industry because the capital invested is in form of intellectual skill and educational
skill.

4) Is Educational Institution an Industry:

Case law: University of Delhi vs. Ram Nath

In this case, the Respondent was employed as a driver by University College for women
as was another person. The University found that running the buses for transporting the girl
students had resulted in loss and terminated the services of the drivers. They challenged this
before the Industrial Tribunal on the ground that they were workmen and termination amounted
to retrenchment and also demanded payment of retrenchment compensation under S.25-F of the
Act and the Tribunal decided in favour of the drivers. The University challenged the award by
contending that the activity carried on by the University was not an industry.

The Hon'ble Supreme Court held that the work of imparting education is more a mission and a
vocation than profession or trade or business and therefore University is not an industry.

5) Is club is an Industry:

Case law: Cricket club of India vs. Bombay labour union(1969)

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The Hon'ble Supreme Court held that the main activity is promotion of game is not
carrying any trade or business no profit moto so club is not a industry.
But, this above all case has been overruled by the Hon'ble Supreme Court in Bangalore Water
Supply and Sewerage Board vs. Rajappa and in view of the triple test laid down even a
University would be an industry although such of its employees who are not workmen within the
meaning of Section 2(s) of the Industrial Disputes Act, 1947 may not get the desired benefits to
which a workman in an industry may be entitled to.

 Guidelines for Determination whether an enterprise is an Industry:

Caselaw: Bangalore Water Supply and Sewerage Board vs. Rajappa
In this case, the Board took disciplinary action against its workmen and imposed fines on
them. When the workmen sought relief under the provisions of Industrial Disputes Act, the
Board contended that it being a service institution rendering service to public and not carrying
on any business with profit motive provisions of Industrial Disputes Act, 1947 will not apply.
There being several judgments expressing divergent opinions, the subject matter was referred to
a larger Bench consisting of seven Judges.

The seven Judges’ Bench exhaustively considered the scope of the term industry and laid down
guidelines for determining whether an enterprise is an industry or not and it is called the Triple
Test and is as follows: Where there is –
(i) Systematic activity
(ii) Organised by co-operation between employer and employee (the direct and substantial
element in chimerical) (iii) For the production and/or distribution of goods and services
calculated to satisfy human wants and wishes

Further following point emphasized.

o Industry does not include spiritual or religious but inclusive or material things or services
geared to celestial bliss, i.e., making, on a large scale, Prasad or food), prima facie, there
is an “industry” in that enterprise.

 Conclusion:
The term industry came before the Hon’ble Supreme Court for interpretation for the first
time in D N Banerji vs. P R Mukherjee.
Finally, in Bangalore Water Supply and Sewerage Board vs. A. Rajappa, the Court laid down
the Triple Test and overruled the decisions of the Court in the cases of The Management of
Safdarjung Hospital, Delhi vs. Kuldip Singh Sethi, Dhanrajgiri Hospital vs. Workmen, and
University of Delhi vs. Ram Nath and other rulings whose ratio ran counter to the principles
enunciated in the case and rehabilitated State of Bombay vs. Hospital Mazdoor Sabha. It is pertinent
to note that even though S. 2(j) was amended in 1982, almost 38 years have elapsed since the
amendment came on the statute book and it has not been enforced till date. Due to this, cases arising
under the old definition have to be decided on the basis of conclusion set out in the judgment by
Hon’ble Justice V. R. Krishna Iyer in the case of Bangalore Water Supply and Sewerage Board vs.
A. Rajappa.
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III. INDUSTRIAL DISPUTE:

 Introduction:

 INDUSTRIAL DISPUTE:
s.2(k) of the IDA, 1947 deals with this aspect. It says - industrial dispute means any
dispute or difference between employers and employers or between employers and workmen or
between workmen and workmen which is connected with the employment or nonemployment or the
terms of employment or with conditions of labour of any person..

 The definition can be divided into 4 parts:-

1. Factum of ID:
Demands give rise to industrial disputes. It is implicit in the demand that it should be
made to the employer or employee. A written demand directly on the management is not in all
cases a necessary condition as it can be made even through a conciliation officer. The expression
dispute or difference connotes a real and substantial difference having some element of
persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace
of the undertaking or the community.

2. Parties to the ID:

In order to fall within the definition of an ID, the dispute must be between
i) Employers or
ii) Employers and workmen or
iii) Workmen and workmen

The disputes between employers and employers may arise in respect of wage matters in an area
where labour is scarce or in disputes of similar character. The words workmen and workmen
include disputes between them either directly or through their trade unions. Such a dispute may
be demarcation dispute, inter-union dispute, etc. Further, trade unions as such are not mentioned
in the definition of ID because they act on behalf of the workmen and therefore when a Trade
Union raises a dispute the workmen are deemed to be party to the dispute.

3. Subject Matter of ID:

Generally speaking, the expressions used in the section are of wide amplitude and have been put
in juxtaposition to make the definition thoroughly comprehensive. Thus, the phrase conditions of
labour is wide enough to include terms of employment as well as matter connected with
unemployment. Similarly, the expression terms of employment includes certain matters relating
to employment or non-employment.

The concept of employment involves 3 ingredients of employer, employee and the contract of
employment. The concept of non-employment is the opposite of employment and would mean
disputes of workmen which arise out of service or existing fact of unemployment or a
contemplated unemployment.

4. Origin of the dispute:

It has been held that the words any person for the purpose of raising a dispute does not to include
a person who was offered appointment but could not join because of failure to accept his joining
report, the existence of employer-employee relationship is necessary.
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Caselaw: Assam Chah Karamchari Sanghavs. Dimakuchi Tea Estate

In this case, where a person appointed by the tea estate as an assistant medical officer on
3 months probation was terminated after probation by the management after paying him 1
month’s salary in lieu of notice. The Hon'ble SC held by its majority judgment that the medical
officer was not a workman because he could not be held to have any community of interest with
the other members of the union to justify the ID being raised in regard to his unemployment.

 WHEN INDIVIDUAL DISPUTE BECOMES AN INDUSTRIAL DISPUTE:

The use of plural namely workmen in the definition of ID is very relevant. A dispute between the
employer and individual workman cannot per se be an ID. It is only an individual dispute outside
the purview of the ID Act. s.2A of the Act deals with this aspect.

Caselaw: Newspapers Ltd. vs. Industrial Tribunal, UP

In this case, the Newspapers company dismissed an employee. The UP Working

Journalists Union with which the employee had no connection took up his case. They referred
the dispute to the Tribunal which ordered his reinstatement. The matter reached the Apex Court
finally where the Newspapers contended that the reference to the Tribunal is bad because the
subject matter of the dispute referred was an individual dispute and not an ID.

The Hon'ble SC observed that preponderance of judicial opinion is clearly in favour of

the view that an individual dispute may become an ID if it is taken up by a Trade Union or a
number of workmen.

The remidies for an indual dispute to full within the definition of id act:
1. If the induvial dispute is sponsored by trade union
2. If no trade union it must sponsored by majority of work men
3. Sec 2(A) must be complied
Section 2-A provides that “where any employer discharges, dismisses, retrenches or otherwise
terminated the services of any individual workman, any dispute or difference between that
workman and his employer connected with, or arising out of such discharge, dismissal,
retrenchment or termination shall be deemed to be an industrial dispute, notwithstanding that no
other workman nor any union of workmen, is a party to the dispute.”

 Conclusion:
Still if employer has other problem other than SEC2(A) no remedies is still debatable topic
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IV. COLLECTIVE BARGAINING:

 Introduction:

 COLLECTIVE BARGAINING:
An individual is free to bargain for himself and safeguard his own interest. If an
individual workman seeks employment, he stands in a weaker position before his master who
having command over wealth stands in a better position to dictate his own terms and the individual
has to accept the offer without any reserves for he has to earn something to feed his family
However, the position becomes different if a bargain is made by a body or association
of workmen as they can negotiate and settle their terms with the employer in a better way and secure
better wages, better terms of employment and greater security.

INTERNATIONAL LABOUR ORGANISATION:

According to ILO, collective bargaining means - negotiations about working conditions
and terms of employment between an employer, a group of employers or one or more organisations
of employers on the one hand and one or more representative organisation of workers on the other
with a view to conclude agreement.

 METHODS/FORMS OF COLLECTIVE BARGAINING:

The process of collective agreements normally takes one or the other of the forms namely
–
1) Negotiation
2) Mediation
3) Arbitration, voluntary or compulsory

1) Negotiation: Negotiation is the process of settling the differences by face to face round table
talks between the representatives of the employees and employers.

2) Mediation: In case of failure of the negotiating machinery to resolve the difference by mutual
discussions and understanding, a third-party intervention to secure settlement of labour disputes
by way of mediation is often resorted to. The mediator functions not as a judge but assists the
parties in dispute to reach an agreement by persuading them to resume or continue their
bargaining efforts.

3) Arbitration, voluntary or compulsory: Arbitration is an act of settling labour disputes

through the medium of a neutral third-party.
The parties to a dispute may either agree amongst themselves to submit for
settlement by a third person whose selection entirely rests with the parties to the dispute or abide
by his award or a dispute might be submitted to an arbitrator under the provisions of a statute. In
the former case, it is voluntary arbitration, in the latter it would be compulsory arbitration. The
award is enforceable in a Court of law.
 STAGES OF COLLECTIVE BARGAINING/BARGAINING PROCESS:
Collective bargaining process is a diplomatic endeavour continuously probing into the
strength and weakness of the opposite party and thus skilfully and tactfully handling the issues and
thus stabilize employment relations.
Following are the stages of collective bargaining:
1) Meetings: Long before the collective bargaining conference, the parties hold separate meetings
and discuss elaborately the stand to be taken before the conference table. These meetings are
important because the representatives get the necessary mandate to their commitment and demands
at the collective bargaining time. The problems are discussed by the employees horizontally and
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vertically and the maximum and minimum demands are evolved after deliberations keeping in mind
the capacity of the employer and the socio-economic effects and consequences of their extreme
demands. Similarly, the employers are also expected to adopt a flexible stand with a give and take
spirit.

2) Conference Table: After the meetings discussed above, the representatives come before the
conference table. This is a face-to-face conference. In the bargaining sessions, the issues and
problems are discussed and debated, the representatives express their stand, proposals and counter
proposals are made, adjournments may be availed by representatives for further discussions with
their employers or employees as the case may be and finally the parties come to some settlement
which will drafted into a contract known as the collective bargaining contract.

Conclusion:
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V. Authority Act:
 Introduction: There are various authorities under the act such as the works committee,
conciliation officer, conciliation board, courts of inquiry, labour court, tribunal, national
tribunal.

 Other Authorities provided by the IDA, 1947 are:

1. Works Committee: -
s.3 The institution of Works Committee was introduced in 1947 under the IA, 1947 to
solve problems arising in day-to-day working of the establishment and to ascertain grievances of the
workmen with a view to promote measures for securing and preserving amity and good relations
and create a sense of partnership or comradeship between employers and workmen
The Act empowers the appropriate Government to require an employer having 100 or
more workmen employed on any day in the preceding 12 months to constitute a Works Committee
which shall consist of representatives of employers and workmen engaged in the establishment.

2. Conciliation Authorities:
Section 4 of the Industrial disputes act 1947 talks about the provisions of the conciliation
officer. it states that the appropriate government i.e. the central government, state government or the
local authority will appoint such number of persons to be the conciliation officer as it thinks fit.it is
the duty of the conciliation officer to mediate and promote the settlement of industrial dispute. The
conciliation officer can be appointed either permanently or for some point of time.

Board of Conciliation(Sec 5)
 The board of conciliation are constituted under section 5 by the appropriate government.
 The board of conciliation s constituted in order to promote the settlement of industrial
dispute.
 The board appointed consists of the chairman and two or four other members. under the
board the chairman is the independent person and the other persons appointed in equal
numbers which represents the parties in disputes and the person who represents the party
shall be appointed by the party . the party needs to appoint such representatives within the
time prescribed and if the party fails to appoint the representatives within the time then the
appropriate government can appoint the person to be the representative of the party.

Section 12: Duties of Conciliation Officers

 Conciliation Proceedings and settlement: i.e investigation of report without delay and to
induce the parties to the dispute come to an end in amicable settlement
 Power of Government to make a reference: if dispute settled then send report along with
memorandumof settlement if not send report of reason and recommendation.
 Submission of report by Conciliation Officer: submitting report within 14 days

3. Courts of Inquiry: - s.6 The Court means a Court of Inquiry under the IDA, 1947.
s.6 of the Act deals with this aspect. It lays down that the appropriate Government may as
occasion arises by notification in the Official Gazette constitute a Court of Inquiry. The object with
which the Court is set-up is to enquire into any matter appearing to be connected with or relevant to
an ID. The Court is composed of 1 independent person or of such number of independent persons as
the appropriate Government may think fit. If the Court consists of 2 or more members, 1 of them
must be appointed as a Chairman. The quorum necessary to constitute a sitting of a Court will be 1
where the number of members is not more than 2, it will be 2 where the number is more than 2 but
less than 5 and it will be 3 where the number of members is 5 or more
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4. Section 7: Labor Court

 The proper Government may, by warning in the official journal, add to at least one
industrial councils for the settling of industrial disputes and identifying with any issue,
regardless of whether indicated in the subsequent calendar or the 3rd schedule.
 A court should comprise of just a single individual designated by the appropriate
government.
 An individual will not be equipped for arrangement as the directing official of a council
except if he is, or has been a judge of the high court or has been a vice president labour
commissioner (central) or joint chief of the state work office, having a degree in law.

5.Section 7-A: Tribunals

section 7A deals with the provision of constitution of the one or more tribunal for the adjudication
of dispute relating to the aspects as mentioned in schedule second or third. tribunal to consist of one
person who shall be appointed by appropriate government.

The qualifications of the presiding officer of the tribunal are as follows:-

a) he is, or has been, a Judge of a High Court;
b) he has, for a period of not less than three years, been a District Judge or an Additional District
Judge;
c) he is or has been a Deputy Chief Labor Commissioner (Central) or Joint Commissioner of the
State Labor Department,, having a degree in law and at least seven years' experience in the labor
department including three years of experience as Conciliation Officer:
d) he is an officer of Indian Legal Service in Grade III with three years' experience in the grade.
the appropriate government to appoint two persons as assessors to advise the tribunal.

6.National Tribunal:
section 7B deals with the national tribunal which is appointed by the central government constitute
one or more national tribunal for the adjudication of industrial disputes which in the opinion of the
central government involves questions of national importance or are of such a nature that industrial
establishments situated in more than one state are likely to be interested in or affected by such
disputes. the national tribunal shall be consisted of one person only to be appointed by the central
government. in order to be appointed as the presiding officer of a national tribunal he should be or
has been a judge of a high court. the central government can also appoint two persons as assessors
to advise the national tribunal in the proceeding before it.

7. Voluntary Arbitration: - s.10A s.10A of the IDA, 1947 deals with this aspect. Voluntary
arbitration is one of the effective modes of settlement of an ID, it supplements collective bargaining.
When the negotiation fails, arbitration may prove to be a satisfactory and most enlightened method
of resolving an ID. It has been found that in many arbitration cases in which the parties start out by
being angry at each other they end up being less so. The winning party is satisfied and the losing
party is likely to feel aggrieved not at the other party but at the arbitrator. Further, informal
arbitration offers an opportunity to dissipate hard feeling which the ID may have aroused.
s.10A(1) of the Act authorizes the parties to make reference to the voluntary arbitrator. But, before
the reference may be made to the arbitrator, the following 4 conditions must be satisfied:
(i) The ID must exist or be apprehended:
(ii) The agreement must be in writing:
(iii) Time for making the agreement:
(iv) The name of arbitrator/arbitrators must be specified:
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This kind of arbitration may be regarded as a statutory arbitration and is not governed by the
Arbitration and Conciliation Act, 1996.

Caselaw: Engineering Mazdoor Sabha vs. Hind Cycles Ltd.

In this case, a Justice of the Hon'ble SC has introduced the concept of statutory arbitrator in a loose
sense in India by holding that the arbitrator u/s.10A is clothed with certain powers; his procedure is
regulated by certain rules and the award pronounced by him is given by statutory provisions a
certain validity and a binding character for a specified period.

8. Adjudication System/Machinery: The final stage in the settlement of IDs is where the parties
are unable to settle either through bipartite negotiations or through the good offices of the
conciliation machinery or through voluntary arbitration is compulsory arbitration which envisages
governmental reference to statutory bodies such as labour court, industrial tribunal or national
tribunal.

Disputes are generally referred to adjudication on the recommendation of the conciliation officer
who had dealt with them earlier. However, the appropriate Government has discretion either to
accept or not to accept his recommendation and accordingly to refer or not refer the case for
adjudication

Conclusion:
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PROPERTY LAW
I Immovable Property and notice:
 Introduction: Property is one of the fundamental elements of socio-economic life of an
individual. The word property has gradually been given a wider meaning. Property law is
therefore an important branch of civil law. The Transfer of Property Act, 1882 deals with the
transfer of inter vivos means transfer by act of parties which takes place between two living
persons for eg: The gift or sale is a transfer of property by act of parties because both transferor
and transferee both must be living persons on the date of transfer.
In section 3 of the Transfer of Property Act, there are seven definitions of the terms given

 Definition of Immovable Property

 Section 3 of Transfer of Property Act defines “Immovable Property” does not include standing
timber, growing crops or grass. Taking a reference from this definition, movable property
includes standing timber, growing crops and grass.
 Section 3(26) of the General Clauses Act 1897, “immovable property” shall include land,
benefits to arise out of land and things attached to the earth, or permanently fastened to anything
attached to the earth”
 Section 2(6) of The Registration Act,1908 defines “Immovable Property” as under: “Immovable
Property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries
or any other benefit to arise out of land, and things attached to the earth or permanently fastened
to anything which is attached to the earth but not standing timber, growing crops nor grass.
 Section 3 of the Transfer of Property Act defines ‘things attached to Earth’ as Things with
Earthly Roots:
 This category contains all trees, shrubs, and similar plants, with the exception of standing wood,
growing crops, and grasses.

 Meaning of Immovable Property

Joining all the above definitions, immovable property can be summed as :-
Immovable Property includes:
1.Land,
2.Benefits to arise out of land,
3things attached to the earth, i.e.,
i. Things embedded to the earth,
ii. Things attached to what is so embedded in the earth,
iii. Things rooted in the earth except:
a. Standing timber
b. growing crops
c. growing grass.
1.Land :
land means surface of the earth. It includes everything upon the surface of the land, under the
surface of land and also above the surface of the land. Anything upon the land, so long as it is not
removed from there, shall be part of the land. For example: Soil, mud deposited on the surface of
the earth would be immovable property. The water collected in a pit or accumulated in the pond or
lake is also immovable property because the water is part and parcel of the surface of the earth.
Water flowing in the river gives the impression that it is moveable but its water always remains on
the surface of the earth. Everything under the surface of land is also the part of the land and is
included in the expression immovable property eg., Sub-soil, minerals, coal or gold mines and the
underground streams of water are immovable properties because they flow under the land.
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2. Benefits to arise out of Land:

Besides land, the benefit which a person gets from land, is also an immovable property.
One way get the benefit from the land under some right. Beneficial interest in a property is called
beneficial right or interest of that property, Thus any right which is exercised over the land or any
other immovable property and by the exercise of which a person gets certain profit or gain would be
his intangible immovable property. For example land is used in wider sense it means and includes
everything upon its surface and everything beneath the land. Therefore the right of a tenant to live in
the house of his landlord is an immovable property of the tenant, in the same way right of fishery,
right to catch fish in the pond or lake is an immovable property.
3. Things attached to the earth. The things attached to the earth means
i. Things embedded in the earth: Things embedded in the earth Things which are fixed firmly in
the earth and became part of the land are things embedded in the earth. For eg., houses, buildings ,
wall, electricity polls are immovable property because they are things embedded in the earth. Walls
and polls are not fixtures or not just placed on the surface of the land but they are dug deep and
thereafter the whole structure is fixed permanently. Where are things which placed on the surface of
the earth without any intention to make them part of the land the things may not be immovable
property. For eg., road roller or heavy stone which placed on the land may go two to three feet deep
depending upon the weight, therefore such things are not called as immovable property.
ii. Thing attached what so embedded in the earth : Where a thing is attached to something which
is embedded in the earth for its permanent beneficial enjoyment, the thing so attached would also
become immovable property. For eg., doors, windows and walls of permanent enjoyment of that
house. The things which are attached without any intention making then to be part of the house
would not be immovable property eg., electric bulb, window screen etc.
iii. Thing rooted in the earth: Trees, plants or shrubs which are grown on land are rooted in the
earth with help of their roots, they keep themselves fixed in the earth and become the part of the
land. Until it is cut down, therefore a general rule in respect of all the trees, plants, herbs and shrubs
is that they are immovable properties, however there is an exception to this general rule
a. Standing timber: Standing timber is a moveable property provided its woods are generally used
for timber purposes i.e.making for house hold furnitures.
b. Growing crops.: growing crops and growing grass are also movable property although the crops
say wheat and barley are nothing but collection of plants which are rooted in the earth but every
crop
c. Growing grass: growing crops and growing grass are also movable property although the crops
say wheat and barley are nothing but collection of plants which are rooted in the earth but every
crop
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 Doctrine of Notice:
The literal meaning of term ‘notice’ is knowledge. The doctrine of notice in
reference to Transfer of Property Act, 1882 is used to adjudicate the disputes regarding
rights and claims of the parties, who are involved in unconscionable transaction.
 For example, A father makes a will in the favour of his son and imposes a condition that
he will pay Rs. 5,000/- per month to his mother for her maintenance and till he makes an
alternative arrangement of an equivalent amount for her, he should not sell the property.
 A notice is an information letter that can be expressed or implied for the communication related
to the transfer of properties as per section 3 of the Transfer of Property Act.

 Kinds of Notice:
Notice is of three kinds:
1. Actual notice
2. Constructive or Implied notice
3. Notice to agent or imputed notice

1.Actual notice:
It means actual knowledge. A person is said to have actual notice/express notice of a
fact if he actually knows it. To consider it as binding, one will have to look at the fact that whether
that notice is definite and information given about the thing, in respect of which the notice is issued,
is correct. It must be definite information given to or attained in the course of negotiations by person
interested in the property. A person is not bound to attend vague rumors.
Here a general claim would not be enough to affect the status of a purchaser with
notice of a deed of which he does not appear to have knowledge. If a person knows that another has
claim or interest in the property for which he is negotiating, he is bound to inquire that what is the
interest of that another person, and if he omits to do so, he will be bound to particulars of extent of
such interest.
Also it is important that the notice should have been given in same transaction. A
person is not bound by notice given in a previous transaction which he may have forgotten.

2.Constructive or Implied notice:

It means ‘knowledge imputed by the Court on a person’. It is a notice which treats a person
who ought to have known a fact, as if he actually knows it. A person has constructive notice of all
the facts of which he would have acquired actual notice had he made those inquiries which he ought
reasonably to have made. In other words, a person may claim that he did not know a fact, but if the
circumstances surrounding him are such, that as a reasonable prudent person, he ought to have
known a fact, he will be deemed to know it.
Constructive notice can be applied by the Court in following cases:
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(a) Willful abstention from search which one ought to make

b) Gross Negligence:
Negligence means carelessness or omission to do such act which a man of ordinary
prudence would do. Doctrine of constructive notice applies when a person, but his gross negligence
would have known the fact. Mere negligence is not penalised. It should be high degree of neglect.

In Hudston v. Vincy, (1921) 1 Ch 98, Eve J. said, “Gross negligence does not mean mere
carelessness, but means carelessness of so aggravated a nature as to indicate a attitude of mental
indifference to obvious risk.”

(c) Registration as notice:

• If an instrument is required to be registered, then it amounts to notice. In case a document
does not require to be registered, its registration does not amount to notice.

3.Notice to agent or imputed notice:

a) Notice should obtained by agent
b) As a agent
c) During agency
d) In course of agency
e) In matter material to agency business.

Conclusion:
Section 3 of the Transfer of Property Act talks about the interpretations of the various
terms and definitions which will be used for a better understanding as per section 3 of the Transfer
of Property Act. There are several words and terms which have been defined in it. All these matters
of properties should be taken by a legal consultancy service.
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II.THE GENERAL RULE IS THAT PROPERTY OF ANY KIND MAY BE TRANSFERRED.

EXPLAIN THE STATEMENT WITH EXCEPTIONS.(section 6)
A: GENERAL RULE OF TRANSFERABILITY OF PROPERTY / WHAT MAY BE
TRANSFERRED: The word property includes properties of all description. It includes
movable, immovable, tangible and intangible properties. A property is a bundle of rights.
When a property is transferred, the rights along with the property are transferred too.
However, an arrangement may be made by which some of the rights may be transferred but
not all. The transferability of property is the general rule and non-transferability is an
exception. Transferability of property is based on the maxim alienatio rei prae fertur juri
accrescendi which means to say that alienation is favoured by the law rather than
accumulation. The general policy of law is to promote free alienation and circulation of
property rather than accumulation of it.
EXCEPTIONS / WHAT PROPERTY CANNOT BE TRANSFERRED: S. 6 of TP Act,
1882 says that property of any kind may be transferred excepting the exceptions given in the
Act or by any other law for the time being in force.
The section consists of exceptions in clauses (a) to (i). It is a list of cases wherein a property
is not transferable and they are as follows:
(a) Spes Successionis (b) Right of re-entry (c) Easement (d) Restricted interest (dd) Right to
future maintenance (e) Right to sue (f) Public office (g) Stipends and pensions (h) Nature of
interest, etc (i) Untransferable interests
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III. DEFINE TRANSFER OF PROPERTY. STATE WHETHER PARTITION,

SURRENDER, COMPROMISE AND GIFT AMOUNTS TO TRANSFER UNDER THE
ACT(section 5).
 INTRODUCTION: The right of ownership of property whether movable or immovable
consists of a bundle of four rights which are the right to transfer, the right to possess, the
right of use & enjoyment and the right to destroy. The Transfer of Property Act, 1882 is a
codification of the manner in which an owner of property may exercise his right of
ownership of property. All transfers dealt with under the Act are the transfer of some
combination of some or all the rights of ownership of immovable property.

 TRANSFER OF PROPERTY:
s.5 of the Transfer of Property Act,1882 deals with transfer of property. According to the
section, transfer of property means an act by which a living person conveys the property in
present or in future to one or more other living persons or to himself or to himself and one or
more other living persons and the living person includes a company or association or body of
individuals whether incorporated or not.
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Family law - II

I. THE IFFERENT OURCES OF MUSLIM AW:

I) Introduction: Islam means peace by submission and obedience to the Will and Commandments
of God Allah and those who accept Islam are called Muslims.
There are two ways in which a person can be regarded a Muslim.
1. Muslim by Birth – a. Believes in one God and b. Prophet-hood of Muhammad
2. Muslim by Conversion – a. Converts by profession of Islam. b. Converts by formal ceremony

II) MUSLIM LAW:

Islamic law is a branch of Muslim theology giving practical expression to the faith
which lays down how a Muslim should conduct in accordance with his religion both towards God
and towards other men. It is based on man’s duties or obligations rather than on his rights. It is a
religious law applicable to a person who is a Muslim either by birth or by proselytization.
According to Prophet Mohammad, the Muslim law is commandment of God Allah and the
sovereign in Muslim States and it is a Muslim’s duty to follow it literally.

III) SOURCES OF MUSLIM LAW:

The Islamic law is referred to as “Sharia”. Islam has given the most comprehensive legal
system to mankind. Islam has its own personal, civil, criminal, evidence and international law.
There are 3 types of sources under Muslim law, they are:-
The Muslim Law has been derived from various primary as well as secondary sources and can be
classified into 2 main categories:
1. Primary Sources
2. Secondary Sources

IV. Primary Sources:

Primary sources may be classified into 4 sub-categories:
(i) Quran
(ii) Sunna or Ahadis
(iii) Ijma
(iv) Qiyas

(i) Quran: The word Quran is derived from the Arabic word Qurra and signifies the reading or that
which ought to be read. It is the original or primary source of Islamic law. It is the name of the Holy
Book of Muslims containing the direct revelations from God through the Prophet. It is believed that
Quran is of divine origin and was revealed to Prophet Mohammad for the benefit of mankind. The
1st revelation/wahi came to the Prophet in 609 A.D. with the word Iqra meaning recite. Collections
of all revelations are called The Recital/Al Quran. Each and Messenger in Arabic language in a
semi-poetic manner. These were conveyed to the society by the Prophet thorough his preaching.
The communications were in scattered form and were not systematically revealed. After the
Prophet’s death, the revealed verses were collected, consolidated and systematically written under
the authority of Osman, the 3rd Caliph.

 Salient Features of Quran:-

1. Quran is of divine origin: It is believed in Islam that the words and the verses of this holy book
are made by Allah and not by any human being and the Prophet simply uttered these words on
behalf of God. Since Quran is compilation of the words of God, its words and authority are
unchangeable.
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2. Quran is in the form of verses: Each verse in the Quran is called Ayat. There are 6,237 verses in
Quran which are contained in 114 Chapters divided into 30 parts. Each chapter of Quran is called
Sura and is arranged subject-wise and has specific titles. The 1st Sura of Quran is Surat-ul-Fatiha
which is an introduction to the Holy Book and consists of verses in the praise of Almighty Allah.
Before consolidation, Quran originally consisted of 6,666 Ayats.
3. Quran is a mixture of religion, law and morality: Religion, law and morality are at some places
mixed in such a manner that it is difficult to separate them. The law making Ayats numbering about
200 are scattered in different chapters and they may be regarded as the fundamental source of
Muslim law. Of these 200 verses, only 80 verses deal with personal law. Some of the verses have
removed objectionable and evil customs like child infanticide, unlimited polygamy, gambling, etc.
Thus, only basic principles of Muslim law are given in Quran.
The major portion of the text deals with theological and moral reflections. It distinguishes good
from falsehood. Because of the above mentioned facts, Quran is the primary and supreme source of
law.

(ii) Sunnat or Ahadees:

 Ahadees is what was said by Prophet and Sunnat is his practice and actions. Matters which
formed the subject of manifest revelation by hints from Jibriel or by inspiration or of internal
revelation are known as Ahadees i.e., precepts or traditions.
 According to the Prophet, traditions are the injunctions of Allah. The literal meaning of the
term Sunna is a patch, a procedure, a way of action. It denotes some type of practice or
precedent. So, the Sunna means the traditions of the Prophet. Many of these are recorded in
the volumes of Hadith literature. Whatever the Prophet said or did without reference to God
is treated as his traditions and is the 2nd source of Muslim law as it is believed that even his
own sayings derived inspiration from Allah. Even his silence to a question put before him
was taken as authoritative and became a precedent.that matter. If this narration was found to
be reliable, it became Sunna. Companions of the Prophet, Successors of the Companions and
Successors of the Successors were recognized as Narrators with Ali being the most important
person recording the Ahadees in black and white.
 Some of the important collection of traditions called digests or musannf are contained in
writings of Abu-ibn-Zuhri, Musnad of Ahmed-ibn-Hanbal, in Muwatta, etc. Tradition as a
source of Muslim law consists of –
a) Sunnat-ul-Qaul which means the utterances or the sayings of the Prophet

b) Sunnat-ul-Fail which includes the doings of the Prophet i.e., his behaviour and

c) Sunnat-ul-Taqris which is the silence of the Prophet in answer to a question which was
put before him for his decision which amounted to implied consent/approval of a rule of law.

(iii) Ijma:
 With the death of the Prophet the original law-making process ended. So, those questions which
could not be solved either by the principles of the Quran or the Sunna were decided by Jurists
with the introduction of the institution of Ijma.
 Ijma means the agreement of Muslim Jurists of a particular age on a particular question of law.
In other words, it is the consensus of Jurists opinion. It is termed as a movable element in law as
it is flexible and not rigid like Quran and Sunnat. The jurists/Mujtahids were persons having
knowledge of law.
 This source of Muslim law has played a very important role in the subsequent development of
Muslim law because through Ijma it was possible to lay down new principles in accordance with
the changing needs of the Islamic society.
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 Once a valid Ijma is constituted, it is regarded equal to the Quranic verse and is equally binding
on the people provided it is not contrary to the Quran or the Sunna. The Prophet Muhammad had
once said that his community would never agree on an error.
 Authority of Ijma depended upon the merit of the participator in its formation.
 Types of Ijma: From the point of view of authority and importance, there are 3 kinds of Ijma and
they are –
a) Ijma of the Companions:
o The concurrent opinions of the Companions of the Prophet was taken to be the most
valuable and reliable as they were presumed to be the best persons to act as jurists and
such an Ijmas could not be overruled or modified by an subsequent Ijma.

b) Ijma of the Jurists :

 In the absence of opinions of the Companions of the Prophet, this type of Ijma

c) Ijma of the People or masses Sometimes,

 the general agreement/opinion of a great majority of Muslims was also accepted as law.
This type of Ijma was of little value because of 2 reasons - it was not possible to have
concurrent opinion and every Muslim was not a learned scholar. This could be overruled
or modified by an subsequent Ijma.

(iv) Qiyas (Analogical Deduction):
 The Qiyas is a process of deduction which helps in discovering the law and not to establish a
new law. Its main function is to extend the law of the text to cases which do not fall within the
purview of the text.
 The word Qiyas has been derived from the Hebruic term hiaqish and from an Arabic root which
denotes beat together. In the Arabic language, Qiyas means measurement, accord and equality.
 If there was any problem before the society on which the texts i.e., Quran, Sunnat and Ijma were
silent, then Qiyas was applied to get the law. It was a method of comparing the problem of
society with a similar problem for which solution was given in the texts i.e., analogical
comparison. The Prophet himself approved the use of reason for exercising private judgment
subject to the dictates of the Quran and the guidance of the Sunnat.
 Compared with other three primary sources of Islamic law, the Qiyas is of much lesser
significance.
 Sunni uses Qiyas as the fourth source whereas Shia uses aql/intellect.

V. Secondary Sources:
Secondary sources are those sources which are developments on the foundations laid down by the
primary sources. Secondary sources is classified into 3 sub-categories:
(i) Equity, Justice and Good conscience
(ii) Judicial Decision
(iii) Legislation
(iv) Custom

(i) Equity, Justice and Good conscience (Istihsan, Istislah, Istildlal):

 It is a doctrine of the Hanafis which was reduced to a definite rule by Imam Abu Hanifa, the
founder of the Hanafi School. But, the other schools of Sunni law opposed this doctrine.
 Istislah:
o It is also something similar to the English Doctrine of Equity, Justice and Good
Conscience and is similar to istihsan but is based on the conception of public good or
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common welfare. Hence, the principle of istislah consists in prohibiting an act which
may cause injury to the public interest.
o This doctrine was introduced by Imam Malik, the founder of Maliki School.
 Istidlal: This Doctrine is also similar to the English Doctrine of Equity, Justice and Good
Conscience. The word istidlal means inference of one thing from the other and is distinct
from the Qiyas.

(ii) Judicial Decision (Precedent): Under the principle of precedent, the subordinate court is bound
to follow the law laid down by the superior court i.e., a judicial decision of SC is binding on all HCs
and lower courts and similarly HC’s decision is binding on subordinate courts and the superior
court’s decision become a source of law for the courts subordinate to them on the point decided.

Caselaw: Begum Subanu vs. A.M. Abdul Gafoor

In this case, the Hon’ble Supreme Court held that despite the fact that a Muslim husband has legal
right to contract second marriage, if the first wife lives separately only on the ground of husband’s
second marriage she would still be entitled to get maintenance from husband.

 Fatawas:
o A fatwa is an Islamic religious ruling on a matter of Islamic law and is issued by a
recognized religious authority in Islam such as Judges and Scholars/Muftis who base
their rulings on knowledge and wisdom. A fatwa pronounced by a Mufti had great
authority but the Kazi/Magistrate was not bound by it. A fatwa is not necessarily
binding on the faithful.
o Though not binding in nature, the fatwas have played an important role in the
development of Islamic law and in enriching the legal rules because the Mufti while
searching out the law for a given case used to consult the Quran, the Sunna, the Ijma
and then gave his ruling as to the law applicable to a given case. It may be noted that
the Doctrine of Precedent has taken the form of fatwa nowadays.
o The famous collections of Fatwas are Fatwa-i-Alamgiri compiled in 17th Century
A.D. in Aurangzeb’s time, Fatwa-Abdul-Hayya and Imdad-ul-Fatawa.

(iii) Legislation:
 It is generally believed in Islam that Allah alone is the supreme Legislator and no other
agency or body on earth has authority to make laws. This belief is so deep-rooted that even
today any legislative modification may be treated as an encroachment upon the traditional
Islamic law. However, some important enactments on
 Muslim personal law are given below:
1. The Mussalman Waqf Validation Act, 1913
2. The Child Marriage Restraint Act, 1929
3. The Muslim Personal Law (Shariat) Application Act, 1937
4. The Dissolution of Muslim Marriage Act, 1939
5. The Muslim Women (Protection of Rights on Divorce) Act, 1986
Apart from the above enactments, there are also enactments which regulate the law of pre-
emption and the law of Waqfs. The Family Court Act, 1984 is also applicable to Muslims
which only regulates the procedure.

(iv) Custom (Urf):

 Customs are also known as urf or ta-amul or adat have the force of Ijma though it does not
command any spiritual authority like Ijma. A transaction approved by custom is legally
operative even if it is in violation of a rule of law derived from the Qiyas/analogical
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deductions. They form the midway between primary and secondary source of Islamic law
and is regarded as an important source of Muslim law.
 Before Islam, the Arabs were governed by customary laws and when Islam came into
existence customs found to be evil and bad were totally abolished by the Prophet and were
declared un-Islamic. But, there were certain pre-Islamic customs like dower, talaq, etc.,
which were found to be good and tolerable and continued because the Prophet sanctioned
them by his silent approval.

VI) Sources under Shia Law:

Shia law recognizes the following sources of law – Quran, Traditions which have come from the
Prophet’s family, Ijma which were confirmed by Imams and Aql/intellect/reason. Besides these
sources, sayings and doings i.e., conduct of Imams are also recognized by the Shias.

IV)Conclusion: Muslim law is an integral element of Indian laws and must be understood and
implemented in the similar manner as any other law in the country. Despite the fact that most of it is
uncodified, Muslim personal law has the same legal significance in India as other religions’ codified
personal laws, such as the Hindu Marriage Act of 1955 and the Christian Marriage Act of 1872.
The Hon’ble Supreme Court of India has taken into account that women’s rights are not being
neglected or discriminated against on any grounds by delivering progressive judgments. This has
developed in contribution to Muslim law to have a newer perspective with the landmark cases.
Adding more to this, the judgments have set up a platform of a level playing field and thus, leading
to the formation of an egalitarian society.
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II. DOWER OR MAHR:

I) Introduction: Before the advent of Islam a marriage was generally contracted by purchasing the
girl from the guardian . A man who wanted to marry would approach the guardian and pay him
some money or property to him and use to him, and use to take the girl with him as his wife, the girl
was called 'Sadhiqa', called as female friend .Such marriages was almost the sale of a girl by
guardian, the money of compensation given by the husband to the guardian was the compensation
of the girl or the price of the girl known as 'Maher.
This type of marriage was called Bal Marriage. The other type of marriage was called as
Beena Marriage .

II) DEFINITIONS:
 According to Wilson, dower is a consideration for the surrender of person by the wife. It is
the technical Anglo-Mohammedan term for its equivalent Mahr in Arabia.
 According to Abdur Rahim, Mahr is that sum of money or property which a Muslim wife is
entitled to get from her husband on marriage as a token of respect towards herself.
 Dower is a sum of money or property which becomes payable by the husband to the wife as
an effect of marriage. In Surah Al-Nisa, Verse 4, the Quran says: “And give the women
(on marriage) their dower as a free gift”

III) OBJECT OF DOWER:

1. To impose an obligation on the husband as a mark of respect of the wife.
2. To place a check on the use of divorce on the part of the husband.
3. To provide for her subsistence after the dissolution of her marriage, so that she may not
become helpless after the death of the husband or termination of marriage by divorce.
IV) Mahr amount :
 Differes from one sect to another, Maher can be fixed either in cash or in kind.
 SUNNI
1) Hanafi School:- 10 Dirhams - Persian (silver coin of 2.97 gms)
2) Maliki School:- 3 Dirhams
3) Shafi School:- No minimum fixed
 SHIA: No minimum fixed
 Those Muslim men who are not capacitated to pay dower to his wife. In such cases Prophet
has directed them to teach Quran to his wife in lieu of dower. At present they is no limit the
maximum amount of dower.
V) Types of Dower :
Dower can be classified into two categories
1. Specific dower or Mahr -i-Musamma
2. Customary dower or Mhr-i- Masil
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1.Specific dower:
 When the amount of the dower is specific in marriage it is called as specific dower.
Dower may be paid or settled by the parties to the marriage either before the marriage
or at the time of marriage or even before the marriage.
 If a marriage of a minor or a lunatic boy is contracted by a guardian, such guardian
can fix the amount of dower .Such dower fixed by the guardian is binding on the
minor boy he cannot on attaining the age of puberty take the plea that he was not a
party to it .
 The husband may settle any amount he likes by way of dower upon his wife, though it
may leave nothing to his heirs after the payment of the amount.

 Specific dower may be divided into 2,

i.Prompt and ii. differed dower .
i.Prompt dower :
 It is payable immediately after marriage on demand.
 According to Amer Ali a wife can refuse to enter into the conjugical Domicile of
the husband until the payment of the prompt dower .In such case the husband is
bound to maintain his wife although she is residing apart from him .
 Prompt dower does not become deferred after consummation of marriage and the
wife has the absolute right to sue for recovery of prompt dower even after
consummation .
 It is only on the payment dower that the husband becomes entitled to enforce the
conjugal rights .
 Rights of restitution arises only after the dower is payed.

ii. Deferred dower:

 This type of dower is payed only on the dissolution of marriage either on death or
divorce .
2. Customary dower or proper dower :
 When the amount of dower is not fixed in the marriage contract or even if the marriage
has
been contracted on the condition that she should not claim any dower , the wife is entitled to
proper dower .
 Determinitation of proper dower : Proper dower is regulated with references to the
following factors .
i. Personal qualification of wife, her age, beauty, fortune, understanding and virtue .
ii. Social position of her father's family .
iii. Dower given to her female paternal relations .
iv. Economic conditions of her husband , and
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v. Circumstances of time .

VI. Increase or decrease of dower :

 The Husband may at any time increase the Dower. Likewise, the wife may remit
the Dower wholly or partly.
 The remission of the Mahr by wife is called as Hibatul Mahr or Hiba-I-Mahr.
when a wife was being ignored by husband and thought that only way to win him
back was to waive Mahr, her remission of Mahr was considered without her
consent and was not binding on her.( Shah Bano v. Iftikhar Mohammad 1956
Karachi HC)
VII. Confirmation of dower:
 Hanafi's believe that a wife is entitled for dower –
i. on consummation
ii. on valid retirement
iii. on death of a party
VIII.Remedies of a Muslim woman to recover dower
The right to dower is an inherent right of every Muslim wife. But, unless this right is effectively
enforced, it is of no use to her. Under Muslim law, following means of enforcement of the right to
dower are available to a wife (or widow):

1. Refusal of Conjugal Rights : Before consummation of the marriage, the wife is entitled to deny
cohabitation to the husband till he gives her Prompt Dower on demand. It is to be noted that under
Muslim law a husband has right to cohabit with his wife and she cannot refuse the same without any
reasonable excuse. But non-payment of Prompt Dower before consummation is a lawful
justification for the wife to refuse cohabitation. A Muslim-wife can refuse to live with her husband
and refuse to him the sexual intercourse so long as the Prompt Dower is not paid to her.
In case of Nasra Begam v. Rizwan Ali AIR 1980
Held: right to dower comes into existence before cohabitation and Prompt Dower may be demanded
even before the cohabitation. where the consummation has taken place even once, the wife’s right to
refuse consummation is lost

2. Widows Right of Retention or right to retain her deceased husband property:

 After the death of husband the most effective method of enforcement of dower is the exercise of
right of retention. A widow, whose dower remains unpaid, has a right to retain the properties of
the husband till her dower debt is satisfied.
 Right to retention doesn't include right to transfer that property. In Maina Bibi v. Vakil Ahmad
(1924)52 IA 145 - In 1902
 Effects of Right of retention :
a. Widow is liable to render full account of acquired property
b. She is not having right of alienation
c. No bar to file a suit for recovery of dower possession
 Right of retention is lost when –
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i. from the income of said property, dower is satisfied

ii. wife voluntary handovers the property
iii. when wife alienates property together with possession to alienee, other heirs get
immediate right of possession to property.
3. Dower as a debt-
 Dower is a debt but not a secured debt, only a thing is that wife became first among other
creditors. Wife/divorcee /widow can recover dower from husband or from his estate when he is
dead. In case of her death, her hiers can also inherit the right to recover that dower.
 Period of limitation to recover dower is –
1. 3 years from dissolution of marriage or death of husband
2. in case of right of retention, till the amount is satisfied.
 Suit for recovery of dower amount is maintainable under Sec.3 of the Muslim Women
(Protection on Divorce)Act, 1986 before the Magistrate.

IX)Conclusion: The concept of mahr in Islamic law is beneficial for the woman. It ensures
financial security so that she is not left helpless after the death of the husband or after the
termination of the marriage. It also places a check on the capricious use of divorce by the
husband. It is also believed that the mahr is a pivotal custom in the marriages of Muslims.
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III. "MARRIAGE UNDER MOHAMMEDAN LAW IS A

CIVIL CONTRACT"CRITICALLY EXAMINE THE
STATEMENT.:
I) Introduction:
 After the advent of Prophet Mohammed, the old social structure of Arabian civilisation vanished
and it gave birth to a new series of ideas and conceptions. The marriage among Muslims is
considered as a contract which makes it distinct from Hindu marriage. Owing to this contract,
the woman can enjoy absolute ownership over her individual rights and also can proceed against
her husband in law courts, if necessary.
 The Arabic word nikah literally means the union of the sexes and in law this term means
‘marriage’.[2] It means to unite, and it cannot be affected except by the pillar ruku emanating
from ahl, one who is competent to contract and with reference to mahl, fit subject to marriage. It
is thus defined as Sunnat Muwakiddah.

II) Object of A MUSLIM MARRIAGE contract

 Under the Muslim law marriage is a civil contract for legislation of the intercourse and for
legitimization of the children .
 According to Hedaya ,marriage implies a particular contract used for the purpose of legalising
of the children .It may be legally stated that in the eyes of law a Muslim marriage is a civil
contract
 The object of the marriage -contract is, firstly to provide legal validity to the relationship of
husband and wife, secondly to legalise the children .
 Without valid contract of marriage the relation of man and a women is unlawful , marriage also
legalise also the children born out of the marriage, children born out of such union are legitimate
children.

III) Legally Muslim marriage is a contract:

 Although the elements of contract are also found in the Hindu marriage yet Hindu marriage
is a sacrament in nature , because it involves some religious ceremonies .
 Justice Mahmood defined Muslim Marriages as a civil contract because no religious
formalities are necessary to complete Muslim Marriage .
 But this may be considered only the legal aspects of Muslim Marriage .Beside Muslim
marriage being a civil contract, the marriage in Islam is also a socio and religious institution .
 Legally, a Muslim marriage is considered as a contract because the elements which constitute
a marriage and the manner in which it is completed is almost similar to that of civil contract.

 The contractual nature of Muslim Marriage could be well understood by the following
facts
1. Like contract the parties to the marriage must also be competent .

2. As in contract the marriage is not competent without offer, acceptance, consideration, and
free consent of the parties of their guardians .

3. Like a civil contract, the terms of marriage contract within legal limits , may be settled by
the parties themselves .
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4. Just as there are rules for regulating the rights and duties of the parties upon the breach of a
contract.

 Therefore the concept of Muslim Marriage is same as that of a civil contract .But only on the
bases of the essential elements of a contract it is not correct to conclude that Muslim
marriages are purely civil contract in the eyes of law . In its form or appearance it may look
as a pure contract but it is not so in its essence.

IV) A Muslim Marriage is valid if it is recognised by the courts as lawful.

 Following conditions must be fulfilled in a valid contract ;

1. The parties to the marriage i.e. husband and wife, must be competent .

2. The consent of the parties, or their guardians , must be of free consent .

3. The required formalities are duly completed, and

4. There must not be any prohibition or implement in contracting the marriage .

 At the time of marriage, both the parties i.e. the boy and the girl must be competent to get
into the terms of contract of marriage . The parties are competent, if they have attained the
age of puberty, of sound mind and both the parties should be Muslims .

V)Conclusion: In the ultimate analysis it can be said that the marriage is Islam is neither purely a
civil contract nor as a sacrament. It is devoid of none but the blending of the two. The transition
from the sacramental indissolubility of marriage to the treatment of marriage, as a civil institution, is
a modern idea. It is a logical development of Anglo Muslim law. Marriage is nothing more or less
than the voluntary union of one man and one woman. The definitions that profound the idea of
marriage as a contract only represents one aspect of Muslim marriage. They ignore its ethical
importance and its religious value. They fail to realise the close and intimate relation between
religion and law in Muslim faith.