Sie sind auf Seite 1von 55

1

Constitution of India

The Constitution relates to the governance of the country & this governance is
carried out through institutions.

The institutions are recognized & their places are defined under the rules of the
Constitution.

Governance involves 3 functions


Making of laws.
Execution of laws.
Interpretation of laws & settlement of disputes.

It is not practically feasible to include everything related to the governance of the


country in the Constitution, but those that are included in the Constitution acquire
supremacy.

It is not enough just simply to know the Constitution.

India is the only country the Constitution of which bothers to mention civil
servants.

Ordinary laws like strict laws can be amended but the constitutional law requires
amendment with a large majority.

The institutions are constituted according to & their powers & functions are
contained in the Constitution.

Judges Inquiry Act contains the rules to look into the conduct of judges.

There might be problems of interpretation of the Constitution.

It is possible that the language of the Constitution cant be applied exactly to


situations which could not have been anticipated by the Constitution-makers at
the time of drafting the Constitution.

The rules laid down by the Constitution are flexible & require interpretation.
However, there are certain rules which it is inadvisable to lay down.

Ideas can be inferred by taking into account detailed provisions of the


Constitution.
It is not necessary that every idea should be written.

2
Certain ideas just form the structure of the Constitution & can be gathered
when one reads the Constitution.

JUDICIAL REVIEW

The question that arises is whether the rules of the Constitution can be enforced
by the judiciary.

In the US, in the case of Marlbury v Madison, it was held that the State shall
agree to be judged by the judiciary.
This means that political rulers should agree to submit their laws to
judicial examination.

The idea of judicial review is based on the belief that the rules of the Constitution
are, by & large, rules of law.

The limitations on the power of judicial review are


The judiciary has to judge the validity of a law on pre-existing norms &
cant formulate a norm merely in order to invalidate the particular law
whose constitutional validity has been challenged.
The judges can decide only matters of law & not matters of policy.

CONSTITUTIONALISM

Constitutionalism means the defining and restraining of the governments power.

Limitation on Power1

Denial of Power (Part III of the Constitution)

Direction of Power (Part IV of the Constitution)

Distribution of powers

Accountability

Phrase like Subject to the provisions of this Constitution in Article 245 and in accordance with this
Constitution in Article 53 shows limitation on the power.

This is done through both internal as well as external limitations.

The internal limitations are those within the mode of governance & are procedural
limitations,

The external limitations are those that are outside the governmental hierarchy.

Nowadays, the term constitutionalism is confined only to external limitations.

Note: Julius Stone has also discussed some aspects of Power and mentioned that Law
is Power. He has further mentioned the development of power structure i.e.
Personalized power structure, de-personalized power structure and trans-personalized
power structure.

BASIC FEATURES OF THE CONSTITUTION

The basic features of the Constitution are


1. Parliamentary form of government.
2. Federal nature of the Constitution.
3. Flexibility of the Constitution.
4. Aspirational character of the Constitution.

RULE OF LAW
The rule of law postulates the pervasiveness of the spirit of law throughout the whole
range of government in the sense of excluding arbitrary official action in any sphere.
'Rule of law' is an expression to giver reality to something which is not readily
expressible. That is why Sir Ivor Jennings said that it is an unruly horse.
Rule of law is based upon the liberty of the individual and has as its object, the
harmonizing of the opposing notions of individual liberty and public order. The notion of
justice maintains the balance between the two; and justice has a variable content.

Dicey's Formulation of the Rule of Law

4
1. Absence of arbitrary power, equality before the law or the equal subjection of all
classes to the ordinary law of the land administered by ordinary law courts and
that the Constitution is not the source but the consequence of the rights of
individuals, as defined and enforced by the courts.
2. The second meaning grew out of Dicey's unsound dislike of the French Droit
Administratif which he regarded "as a misfortune inflicted upon the benighted
folk across the Channel". Indeed, so great was his influence on the thought of the
day that as recently as in 1935 Lord Hewart, the Lord Chief Justice of England,
dismissed the term "administrative law" as "continental jargon".
3. The third meaning is hardly apposite in the context of our written Constitution for,
in India, the Constitution is the source of all rights and obligations. We may not
therefore rely wholly on Dicey's exposition of the rule of law but ever since the
second world war, the rule has come to acquire a positive content in all
democratic countries. The International Commission of Jurists, which has a
consultative status under the United Nations, held its Congress in Delhi in 1959
where lawyers, judges and law teachers representing fifty-three countries affirmed
that the rule of law is a dynamic concept which should be employed to safeguard
and advance the political and civil rights of the individual in a free society. One of
the committees of that Congress emphasised that no law should subject any
individual to discriminatory treatment. These principles must vary from country
to country depending upon the provisions of its Constitution and indeed upon
whether there exists a written Constitution. As it has been said in a lighter vein, to
show the supremacy of the Parliament, the charm of the English Constitution is
that "it docs not exist".

As Culp Davis said,

where the law ends, discretion begins and the exercise of


discretion may mean beneficence or tyranny, justice or injustice, either reasonableness or
arbitrariness. There has been no government or legal system in world history which did
not involve both rules and discretion. It is impossible to find a government of laws alone
and not of men in the sense of eliminating all discretionary powers. All governments are
governments of laws and of men. Jerome Frank has said:
This much we can surely say: For Aristotle, from whom Harrington derived the notion of
a government of laws and not of men, that notion was not expressive of hostility to what
today we call administrative discretion. Nor did it have such a meaning for Harrington".
Another definition of rule of law has been given by Friedrich A. Hayek in his books:
"Road of Serfdom" and "Constitution of Liberty". It is much the same as that propounded
by the

Franks Committee in England:


The rule of law stands for the view that decisions should be made by the application of
known principles or laws. In general such decisions will be predictable, and the citizen
will know where he is. On the other hand there is what is arbitrary. A decision may be
made without principle, without any rules. It is therefore unpredictable, the antithesis of a
decision taken in accordance with the rule of law"

Note: this is why all the retrospective law is bad.

When judiciary is laying down some


principle it must apply it from the next case. Laws should apply prospectively and not
retrospectively. A person should never be made to suffer in law (criminal or civil) for an
act which was not unlawful when he committed it. Retrospective legislation destroys the
certainty of law, is arbitrary and is vindictive, (being invariably directed against
identifiable persons or groups). Such laws undermine many characteristics of the rule of
law.
This Court said in Jaisinghani v. Union of India MANU/SC/0361/1967 that the rule
of law from one point of view means that decisions should be made by the application of
known principles and rules, and, in general, such decisions should be predictable and the
citizen should know where he is.
This exposition of the rule of law is only the aspiration for an ideal and it is not based on
any down-to-earth analysis of practical problems with which a modern Government is
confronted. In the world of action, this ideal cannot be worked out and that is the reason
why this exposition has been rejected by all practical men.
If it is contrary to the rule of law that discretionary authority should be given to
government departments or public officers, then there is no rule of law in any modern
State. A judge who passes a sentence has no other guidance except a statute which says
that the person may be sentenced to imprisonment for a term which may extend to, say, a
period of ten years. He must exercise considerable discretion. The High Courts and the
Supreme Court overrule their precedents. What previously announced rules guide them in
laying down the new precedents? A court of law decides a case of first impression; no
statute governs, no precedent is applicable. It is precisely because a judge cannot find a
previously announced rule that he becomes a legislator to a limited extent. All these
would show that it is impossible to enunciate the rule of law which has as its basis that no
decision can be made unless there is a certain rule to govern the decision.
Leaving aside these extravagant versions of rule of law, there is a genuine concept of
rule of law and that concept implies equality before the law or equal subjection of all
classes to the ordinary law. But, if rule of law is to be a basic structure of the
Constitution, one must find specific provisions in the Constitution embodying the
constituent elements of the concept. I cannot conceive of rule of law as a twinkling star

6
up above the Constitution. To be a basic structure, it must be a terrestrial concept having
its habitat within the four corners of the constitution. The provisions of the Constitution
were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a
basic structure, it seems to me that the meaning and the constituent elements of the
concept must be gathered from the enacting provisions of the Constitution. The equality
aspect of the rule of law and of democratic republicanism is provided in Article 14. May
be, the other articles referred to do the same duty.

Note: The judgment of the Supreme Court in Chiranjit Lal Chaudhri v. Union of India
that a single individual may be treated as a class is the violation of Constitution. Our
Constitution exists and must continue to exist. It guarantees equality before law and the
equal protection of laws to everyone. The denial of such equality, as modified by the
judicially evolved theory of classification, is the very negation of rule of law.
Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the
equal protection clause of the Fourteenth Amendment to the American Federal
Constitution Bashshar Nath v, C.T.T., MANU/SC/0064/1958.. In State of Bengal v.
Anwar Ali Sarkar MANU/SC/0033/1952., Patanjali Sastri, C.J. observed that the first part
of the article which has been adopted from the Irish Constitution, is a declaration of
equality of the civil rights of all persons within the territories of India and thus enshrines
what American judges regard as the "basic principle of republicanism" cf. Ward. Flood,
17 Am Rep 405. and that the second part which is a corollary of the first is based on the
last clause of the first section of the Fourteenth Amendment of the American
Constitution. So, the concept of equality which is basic to rule of law and that which is
regarded as the most fundamental postulate of republicanism are both embodied in
Article 14. If, according to the majority in Bharati's case (supra), Article 14 does not
pertain to basic structure of the Constitution, which is the other principle of equality
incorporated in the Constitution which can be a basic structure of the Constitution or an
essential feature of democracy or rule of law?

Clauses {4} and (5) of Article 329A were arbitrary and was calculated to damage or
destroy the rule of law. Imperfections of language hinder a precise definition of the rule
of law as of the .definition of 'law* itself. And the Constitutional Law of 1975 has
undergone many changes since A. V. Dicey, the great expounder of the rule of law,
delivered his lectures as Vinerian Professor of English Law at Oxford, which were
published in 1885 under the title) "Introduction to the Study of the Law of the
Constitution". But so much, I suppose, can be said with reasonable certainty that the rule
of law means that the exercise of powers of government shall be conditioned by law and
that subject to the exceptions to the doctrine of equality, no one shall be exposed to the
arbitrary will of the Government.
ON THE RULE OF LAW: HISTORY, POLITICS, and THEORY: Brian Z.
Tamanaha.

7
This is a valuable work that fills the need for a clearly articulated introduction to this
now widely praised, but often poorly understood, political ideal. Remarkably
comprehensive for such a short work, the contributions of such figures as Plato, Cicero,
Locke, Montesquieu, Madison and Hamilton to the development of the concept of the
rule of law, as well as the refinements made by recent and current thinkers like Joseph
Raz and Ronald Dworkin, are explicated within a well-constructed framework of the
historical, economic, and political forces that have shaped the concept. Tamanahas own
evaluation and conclusions about the rule of law are balanced, yet he does not hesitate to
expand our understanding of the value and shortcomings of the rule of law, especially
when applied to non-western cultures and to the international arena.
Viewing it as a product of western political and legal thought, Tamanaha offers a concise
examination first of how the rule of law emerged from Greek and Roman roots and
survived as an inchoate concept during the medieval period. He then examines the core
set of meanings that became associated with it as a component of liberalism during the
Enlightenment, as well as the various critiques that have more recently been applied
against it, ranging from nineteenth century conservatives (Dicey, Hayek) to twentieth
century American realists and critical legal scholars. From this historical review, the
author derives three main themes that inform our understanding of the rule of law.
The first (and broadest) theme is government limited by law. This focuses not on
individual liberty, but on restraint of government tyranny, and was the dominant version
(preceding the idea of individual liberty) until the advent of liberalism, when the focus
shifted to [*498] formal legality. It means first that government officials must abide by
the currently valid positive law, and second there are restraints on their law-making
power (how they can change the law); imposed by natural law, divine law, customary law,
or more recently human/civil rights.
This restraint in the first sense came in premodern times from affirmation by the monarch
that the law was binding (though not always voluntarily), such as the oath upon taking
office, the Magna Carta, a common understanding (such as from German customary law),
and the routine conduct of officials. Church leaders, merchants, aristocrats, and others
usually cited breaches of law to justify their resistance to arbitrary government actions,
which usually took political (or theological) form, since there were few legal remedies for
violations of law by the sovereign. But it is possible to apply legal sanctions against the
sovereign for violations of the positive law; this usually requires an independent judiciary
capable of holding the other parts of government accountable on legal grounds, and
whose decisions are respected.
Restraint of government tyranny in the second sense is more ambitious. In Islam the
Sharia may serve this purpose, but in modern times there are tensions even in the
Muslim world that result from modernity and pluralism. Ultimately the success of this
theme of the rule of law depends on a pervasive belief in it by the people and by
government officials. While the role of written constitutions is considered at various
points in the book, here the author might have usefully discussed the concept of
constitutionalism and its close relationship to the rule of law.

8
The second theme is formal legality: public, prospective, stable, general laws equally
applicable with a fair hearing within a judicial process. This is the dominant theme
within liberalism and capitalism, and there is a positive correlation between formal
legality and economic development. It emphasizes predictability, deemphasizes the
content of the law, is not incompatible with authoritarian regimes, and foregoes
requirements of distributive equality and justice in individual cases (though it is not
incompatible with these). It may also be inappropriate is some cases, where
compromises or political solutions are preferred, or in communitarian societies where
social values may clash with aspects of formal legality. Finally, there can be rules that
are so numerous and complex that they defeat the purposes of formal legality.
The third theme is rule of law, not man. This avoids the unpredictable predilections of
individual actors. But since laws are not self-interpreting or applying, individuals cannot
be excluded from consideration. The rule of law response has been to identify the
judiciary (legal experts) as the special guardians of the law, and reduce the significance of
the individual as judge at its most extreme in formalism, which values the objective,
mechanical judge. This theme has been supported by the growth of law and lawyers and
their extensive social penetration in liberal societies, and by the separation of powers and
subsequent independence of judges, which was made possible by the professionalization
of law. To prevent the rule of law in this theme from [*499] becoming rule by judges is
important, especially following the decline of legal formalism. It requires careful
selection of judges committed to fidelity to the law, deference to proper authority to make
the law, diverse social background of judges, and qualities of judicial honesty and
integrity, among other factors.
On the international level, an infrastructure of global law (public and private international
law) has been and continues to be laid through rules, acceptance by states, and the
creation of international tribunals, especially in the commercial arena which has been
driven by the global economy. But here an analogy to the rule of law within nation-states
is difficult. International law is characterized by consent-based tribunals, lack of a
legislature and executive agencies, and voluntary rather than compelled acceptance of
(and compliance with) various legal regimes, all of which create rule of law difficulties.
Self-interest and power, and the overall voluntary nature of international adjudication,
counterweigh fidelity to the law. However, this situation is roughly similar to the early
(medieval) period of the state-centered rule of law tradition; there is then potential for
further development of an international rule of law.
Regarding formal legality on the international level, the piecemeal creation of rules and
tribunals, which often overlap, along with varying national interpretations and
applications of rules, all tend to reduce consistency, certainty, and equality in the
application of the law. The creation of international law rules is not always transparent,
and compromise and politics, rather than rule application, more often prevails.
Underlying support for the rule of law in nation-states has been supportive beliefs that the
law is just, made by the people, and/or for the good of the community. This is lacking in
the wide variety of states on the international level, and may be seen as designed to

9
support western power and values. To be successful, an international rule of law must be
perceived to reflect the interests of the entire international community.
Tamanaha concludes his book by asking whether the rule of law is a universal human
good. The first cluster of meaning of the rule of law, that government officials operate
within a legal framework in the two senses of abiding by the law as written and accepting
limits on law-making power, is indeed a universal human good. The state system and
modern government is a recent (seven centuries old) invention of the West, and in
pluralistic societies is not just an extension of the community. Experience shows that
government is capable of abusing power as much as benefiting the communities under it.
But the situation is more complicated when parts of the positive law or limits on the law
(like bills of rights) are transplanted from western (individualistic) societies to nonwestern (communitarian) ones.
Tamanaha believes that a helpful approach would be to start not with identifying zones of
individual autonomy to identify limits on government (a liberal approach), but with the
idea of preventing government tyranny, and to decide what limits are appropriate
consistent with prevailing social-cultural views. The second cluster, formal legality (rule
by rules), is a valuable good but not necessarily a universal human good. It can be
alienating when set in different cultural contexts, such as those with greater emphasis on
communitarian values and the importance of social justice (for example, those within the
Islamic tradition). The third cluster the rule of law, not man follows whenever the
first or second is adopted. Self-restraint to avoid descending into rule by judges is
necessary.
Finally, Tamanaha notes that all of these clusters are open with regard to content. In his
view, justice and the good of the community should be considered in any evaluation of
the value of the rule of law. He notes in this regard that pervasive societal attitudes
about fidelity to the rule of law in each of the three meanings is the mysterious
quality that makes the rule of law work.

10

SEPARATION OF POWERS AND THEORY OF CHECK AND BALANCES


The idea that government powers showed be divided among separate and distinct
authorities has a long history in western constitutionalism. John Lock observed on the
need for separation of powers in as early as 1960. He satisfied to the human refuse to
grasp power and danger of such power vesting absolutely in one person or institution.

The notion behind this was Centralization of power is dangerous. There must be check
on power. In history we find very few Golden periods. In spite of this period there was
no liberty for peoples.
First attempt towards this was Philadelphia Convention.
The doctrine of separation of powers can be traced as far back as the Aristotelian times.
In later centuries, John Locke and James Harrington had advocated this principle. The
credit for a meaningful and concrete concept of separation of powers, however, goes to
the eighteenth century French philosopher Baron de Montesquieu, who wrote in his
Spirit of Laws thus:
When the legislative and executive powers are united in the same person
or in the same Magistrates or body, there can be no liberty. Again, there is
no liberty if the judicial power is not separated from the legislative and
executive powers. Were it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control; for the judge
would then be the legislator. Were it joined with the executive power, the
judge might behave with violence and oppression. There would be an end
of everything were the same man or the same body to exercise these three
powers.
Montesquieus writings considerably influenced the views and thoughts of the framers of
the Constitution of the United States when they gathered to draft the American
Constitution. Thomas Jefferson, one of their founding fathers and the third President of
the US, was an ardent proponent of the doctrine of separation of powers in the context of
Governmental functioning. About 60 years before the American Constitution was drafted,
the British had, introduced in 1688 the Bill of Rights, one of the characteristic features of
which was the separation of powers between the King and the Parliament and the King
and the common Law courts. The makers of the American Constitution adopted the
concept and fitted it into their written Constitution.
Separation of powers means non involvement of branches that do not possess a special
power.

11
Rationale behind doctrine of SOP
Prevention of tyranny.
Efficiency of administration.
1. Water tight Model
In this model only power is divided. But all branches are free to exercise as more by own
willing.
2. Alternate Model :
Powers are divided and mode of exercising of this power and limitations on power,
also provided in the Constitution as India, USA
There are two views about Doctrine of separation of powers (In USA)

Formalistic View:

It demands adherence by each branch meaning thereby as a


command of the Constitutional text. Thus this view expresses strict separation of powers.

Functionalism: Commands fidelity to the purposes of distribution of powers. The


Constitutions distribution of powers is violated only if one branch of federal government
aggrandizes its power at the expense of another branch.
In short functionalist views such SOP as a component of fulfilling the constitutional
goals.
Doctrine of Checks and Balances:
It signifies division and dispersion of a specific power between the branches i.e.
constitutional effort to ensure that the system will be able to guard against usurpation of
authority by any one branch.
Therefore the principle of SOP suggests three autonomous entities, working
independently. While doctrine of CAB suggests overlapping functions in which each
branch is able to introduce on and thereby to check the power of others. The
Constitutional framework is best understood as a scheme that embodies a partial, rather
than the complete separation of powers and that supplements the separation by crating
devices by which one branch.
Purpose
To check the exercise
To maintain the balance

12
To restore back the excess

Indian Constitutional Setup


In the Indian context, the concept of separation of powers and checks and balances is
inherent in the constitutional arrangements. In fact, Separation of Powers has now been
acknowledged as among the basic features of our Constitution. All the three organs of
the State, the Executive, Legislature and the Judiciary are bound by and subject to the
Constitution. None of them has powers beyond the Constitution. Dr. Ambedkar also
pointed out during the debates in the Constituent Assembly that a Constitution is based on
certain tacit assumptions concerning the fundamentals; for example, no Constitution lays
down that the Executive is bound to carry out the laws made by the Legislature. It is
assumed that they will perform that duty. Likewise no Constitution lays down that none
of the organs, including the Judiciary, must exceed its powers.
The Constitution does not contemplate a Super-organ nor confers over-riding authority on
any organ. No organ has any authority to superintend over the exercise of powers and
functions of another, unless the Constitution strictly so permits, otherwise the
Constitutional balance will be greatly disturbed.
The basic foundation of our Constitution is the accountability of the State to the people
who are the real masters. The accountability of the Executive to the people at large is
enforced through their representatives in the House of People. The Legislatures also have
the obligation not to exceed the jurisdictional limits provided in our organic law. The
Constitution and its preamble are the guiding lights so far as the Judiciary is concerned
but there is no scope of enforcing its accountability to the Constitution, except judicial
conscience and rectitude. If any organ of the State arrogates to itself any power, having a
sanction only in terrorem, which under the Constitutional scheme belongs to any other
organ, it will cause a serious imbalance in our Constitutional set-up.
Hence three very important questions can be raised in Indian Constitution Perspective.
1. What are the specific powers and Functions vested in the three branches of
Government?
2. Identify limitation imposed on such powers and functions?
3. What the limitation that can be imposed on such powers and functions by other
two branches i.e. check and balances.

13

Provisions relating
Executive Powers

to Provisions relating
Legislative Powers

Art. 53(1)/ Art 154 (1) Art


123/213. 72/161, 140,
76/165, 263, 260, 352,
356, 360, 365, 124(2), 143,
144, 192, 207.
Art 111/200, 292, 293,
316, 310, 331, 333, 339,
340, 341, 342, 344, 350B

Art 245, 246, Art 61,


Art -114, 117
Art- 124(A)
Art 360
Art -122/212
265, 266, 267, 302,
304, 307, 309, 312A,
320-A, 320-B, 323,
320, 345, 360, 370,
372, 241, 244-1
VII the Schedule

to Provisions relating
Judicial Powers

to

Art 124(1)
Art 214(1)
Art 32/226
Art- 127, 120, 129, 131,
141
303, Art 222, 223
321,
327,
371,

Express Limitations:Check on Legislative power:


Specific
Art 13(2) Internal check
Art -111 Assent of the President Extreme
Art 32, 226 Judicial Review
External check Assent to money Bill
Check on the Executive

Art 324(2), (5) Subject to the law made by the parliament


Art 356 within 30 days put before the parliament otherwise its validity ceases

Art 61 Implement of president


Specific limitation ex. Art - 329
- Art - 122

Art 262(1) & (2) Parliament may be law provide for the adjudication of any dispute or
complaint with respect to use, dist
In Indian system besides from broad separation, there is a functional overlapping i.e.
checks and balances the Supreme Court has the power to declare void the laws passed by

14
the legislative and the action taken by the executive if they violate the provisional of
constitution or law passed by the legislative in case of executive actions. Similarly, it is
open to a legislative to act the basis of the judgment.
The president of India in whom the executive authority of India is vested exercises law,
law-making power in the name of ordinance.

A check of executive is that Council of Minister is responsible for the house of


people. (Art. 75(3)
President may be impeached by president. Art 61/56
Judges can also be impeached as parliament, Art-124(4)
President power to assent the bill Art. (1)

Check on Judiciary

The appointment and removal of the High Court and Supreme Court judges is by
the head of the executive but now in practice this power has been taken over by
the Supreme Court. (Supreme Court Advocates on Record Association v. Union
of India).

The Judges of superior courts may be removed through impeachment by


Parliament on the grounds of incapacity and proved misbehavior.

Article 262 is also a check on the Judiciary.

If we compare our legal system with an American system: in America also these is no
separate chapter in the constitution dealing with the separation of powers.
Article -1, 2 & 3 describes broad framework of the powers and functions of the
government. It is on the basis of this theory of SOP that the Supreme Court of U.S. has
not has given power to decide the political question and also not has power to judicial
review. But now at the case Backer v. Car and Marburry v. Madison these both power
has been usurped by the Court. This is because in the complexity of modern govt., strict
structure a classification of the powers of the Govt. is not possible. Besides this the
president of U.S. interferes with the exercise of the powers by Congress through the
exercise of his veto power. The president also interferes with judiciary by appointing
judges. In the same manner congress interferes with the power of president through vote
on budget, approval of agreements by the senate and the rectification of treaty. Congress
also interferes with the exercise of powers by Courts by passing procedural law creating
special courts:
In its turn, the judiciary interfaces with the power of judicial review. It is correct to say
that the Supreme Court of the U.S. has made more amendments to the American Court
then the congress itself.

15

After analyzing both constitutional provisions we can see that there are almost same
conditions in SOP:

Supreme Court on Separation of Power


1. In Ram Jawaya Kapoor v. State of Punjab
This was the first case where Apex Court of India declared that we have adopted the
British Westminster Model of government and therefore our Constitution does not
contemplate a rigid separation of work.
2. A.K. Roy v. Union of India
Validity of National Security, Ordinance, 1980 and certain provisions of N.S.Act 1980
was challenged. Supreme Court declared that our Constitution does not follow the
American pattern of Strict of SOP
3. In Re Delhi Laws Act
Seven judges bench decided that we accepted the British Model. Hence, there is fusion
of legislative powers.
4. In Chandra Mohans Case in 1987
Supreme Court declares that though Indian constitution does not provide strict SOP but it
provides independent Judiciary.
5. E .T. Sunnup v.C.A.S.S.S Employees Association (2004) SCC 683
It is role of judiciary to act as watch dog and keep check on Executive and Legislature
(who gave this power to judiciary?)
6. Nine Judges bench in Supreme Court Advocates on Record Association Case
Article 50 of the Constitution confines only to lower Judiciary.
7. P. Kannadasan v. St. of Tamilnadu 5 judges (1966) SCC
Doctrine of SOP is not only recognized but incorporated in the constitution.
(How can five judges bench overrule the nine judges bench decision).
Mockery of Doctrine of Separation of Power
The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly
and the Jharkhand Assembly case of 2005, to my mind, point to the deviations from the

16
generally understood constitutional scheme of separation of powers. Many perceived the
concept of composite floor-test introduced by the Supreme Court in the 1998 and 2005
cases, as an avoidable interference with the powers and privileges of the Legislature by
the Judiciary.
I respectfully reiterate that in the Jharkhand Assembly case the Supreme Court gave an
unfortunate non-speaking order which, to my mind, violates Article 212 in several
respects. I pointed out then and I would like to repeat here that if the Assembly had
ignored or flouted the order, the Supreme Court would have been confronted with a most
embarrassing situation in which it would have been unable to secure the enforcement of
its order, thus undermining the authority and prestige of the Court. It may be noticed that
the Order of the Supreme Court could not actually resolve the problem which was
possible only by Executive intervention.
For the Presiding Officers of the Legislatures to be directed by the Court of law to
discharge their functions in a given manner would create a wholly unworkable and
unacceptable situation. How could the Executive authorities like the Chief Secretary of
the State Government or Police officials be able to maintain the order, arrange for the
presence of the legislators and for their coming inside the House? If this was allowed,
they would have been substituting the Presiding Officers in the matter of maintenance of
discipline.
The Interim Order of the Supreme Court in these two cases, to my mind, upset the
delicate constitutional balance between the Judiciary and the Legislature. I feel that these
were instances of unfortunate and serious encroachment by the Supreme Court on welldemarcated areas of powers of the Legislatures. It, in effect, blurred the contours of areas
of supremacy of different constitutional institutions. Articles 122 and 212 of the
Constitution explicitly symbolize the supremacy of the Legislatures within their own
spheres, and these provisions are equally binding on the Speakers as well as on all
Courts.

17

Form of the Government


EXECUTIVE

At both the Centre & State level, the President & the Governor respectively are
vested with executive powers.
The President is elected by the Electoral College, consisting of
o Elected Members of Parliament (MPs).
o Elected Members of Legislative Assemblies (MLAs).
Every vote doesnt have the same value.
o There is equal weightage of between the Centre & the State.
o The weightage of votes is proportional to the population of the
constituency.
If the manner of election of the President is to be changed, it requires
o 2/3 majority in both houses of Parliament.
o Ratification by the State Legislatures.
The requirement for amending the Constitution is less than the requirement for
impeaching the President.
The President has to act in consensus with the recommendations of certain
committees.
The President is given the power to preserve, protect & defend the country.
The difference between a Parliamentary Executive & a Presidential Executive is
as follows.
o Parliamentary Executive is dependent on the legislature.
o Presidential Executive is not dependent on the legislature.
Both the President & the Governor exercise their directory powers thorugh
subordinate officers which include ministers.
Everything is not necessarily done by the President & the Governor but merely in
their name.
There has to be a Council of Ministers (COM) & both the President & the
Governor dont have the option of deciding whether the want to have one or not.
There was a debate on whether the President should act in accordance with the
advice of the COM.
o Those in favour were
The Supreme Court.
Jawaharlal Nehru.
o Those who opposed it were

18

Dr. Rajendra Prasad


K. N. Munshi
Justice P. B. Mukherjee of Calcutta High Court
Chief Justice of India K. Subba Rao
o Finally, it was decided that the President has to act in accordance with the
advice of the COM. (63rd Amendment, 1976)
However, the Governor has no such restriction & can exercise his
discretion.
There was a debate over whether the village should be the unit of governance.
o Those in favour were
Gandhi
o Those opposed to it were
Ambedkar
o Finally, the village was not adopted as the unit of governance but the
individual was.
There was a debate over whether a Parliamentary system should be adopted or a
Presidential system.
o In a Presidential system, there is concentration of power in the hands of
one individual.
o In the Parliamentary system, nothing proposed by the COM becomes legal
until the President agrees.
There is a distinction between the formal executive (President) &
the actual executive (COM).
o Finally, a Parliamentary system was adopted.
The question that arose was whether the British system could be transported to
India.
o It was necessary to create a formal head equivalent to the Queen of
England.
o The Constituent Assembly wanted to do this in the President.
o The controversy is not about the intention of the Constituent Assembly but
about whether their intention was reflected adequately in the language of
the Constitution.
o Therefore, the President is vested with quite a lot of strength & does not
have his functions dictated by the Prime Minister (PM).
o However, the President cant challenge the PM as that would be too much
power.
This is why the Electoral College members are not elected simply
for election of the President but have other functions.
This provides political protection to the President.
However, since the President cant project himself politically, he
doesnt have so much power.
The dissenters to this view raise the following arguments.
o Since the Queen is not elected but the President is, the President cant be
equated with the Queen.

19
o The President is less powerful because he has a limited term of office,
unlike the Queen.
o The President has the command of the army.
o The president can be impeached.
POWERS OF THE PRESIDENT

Presidential powers are of 2 types.


o Power relating to the governance of the country, which is similar to that of
the Queen, for the performance of which he cant be impeached.
Right to be consulted.
Right to encourage.
Right to warn.
o Power relating to the governing institutions for the performance of which
he can be impeached.
Right to appoint PM.
Right to dissolve Parliament.
Right to dismiss government.
The President is the equivalent of a backseat passenger in a car - he cant drive
himself but he can change the driver.
Once the President signs a Bill, it doesnt require a counter-signature (it is
required in Britain).
o Earlier the President needed to be personally satisfied.
o However, this has been overruled by Samsher Singh v State of Punjab &
the President need not be personally satisfied but those acting in his name
need to be.
The President is to be advised by agencies other than the COM.
o However, there are exceptions like the one conferred under Article 217 (3)
of the Constitution.
o In the case of Samsher Singh v State of Punjab, K. Iyer said that it is
correct if decisions regarding Article 217 (3) of the Constitution are passed
through the COM before reaching the President.
o The government is responsible even if the decision is made keeping it
aloof.
Since India has a Parliamentary form of government, power is vested in the hands
of the COM.
However, the President has 3 discretionary powers.
o Right to appoint PM.
o Right to dissolve Parliament.
o Right to dismiss ministry.
The Indian President is more powerful than the Queen because the Indian
Parliament is constrained by the Constitution whereas in Britain, the Parliament is
supreme.

20

The President should not only be non-partisan, he should also appear to be nonpartisan.
The President must be alert to ensure that his office or name is not abused to
violate the Constitution.
Since the powers of the Parliament are constrained by the Constitution, it cant
advise the President to act illegally or unconstitutionally.
The President cant veto a legislation but can raise constitutional objections.
o For example, the objections raised by Dr. Rajendra Prasad to the Hindu
Code Bill.
o In such a case, the Supreme Court resolves the issue.
o However, the Governor cant approach the High Court & has to refer such
a dispute to the President.
The office of the President should not be used for circumventing the Constitution.
o For example, ordinances promulgated for temporary effect & with no
intention of being passed when the Parliament comes into session.
(Wadhwa v State of Bihar)
There are certain powers of the President upon which the SC is encroaching.
o For example, whether tainted ministers should be allowed to hold their
portfolios.
This can be more effectively decided by the President.

DISCRETIONARY POWERS OF THE PRESIDENT:

Power of appointment of PM
o The President can exercise discretion in this regard.
o Some are of the opinion that the outgoing PM should advise the President
on who should be appointed his successor (because the Queen cant be
responsible for her actions).
However, this is only plausible if the successor is from the same
party as the outgoing PM.
Furthermore, since the President can be impeached (unlike the
Queen), it is only fair that he be allowed to exercise his discretion.
In Britain, since the PM is appointed by the Queen & not the
House of Commons (HOC), therefore he need not resign if despite
losing the majority in the HOC, his party is the single largest party.
This is not the case in India.
Also, in Britain, the PM can recommend the dissolution of the
HOC without resigning, & only needs to resign if his party loses
the subsequent polls (if his party wins he need not be reappointed).
The PM has to resign if the Lok Sabha (LS) is dissolved (he
continues only as caretaker PM) & if his party wins the
subsequent polls, he has to be reappointed.

21

Thus, in India, even though the PM is appointed by the


President, his appointment is limited to the duration of the
LS.
Power to prematurely dissolve the LS
o This power consists of 3 issues.
Whether the power to advise premature dissolution is PMs or the
COMs.
In Britain, there is a convention that the power is the PMs
alone even though he may consult his colleagues.
In India, there is no such convention & no PM has ever
exercised such power alone.
Therefore, in India, the power lies with the COM.
Whether the President has to accept the advice of the COM.
Such advice may be tendered in 2 situations.
o When the government loses its majority in LS.
There are 2 competing considerations.
If the government has been disowned
by the LS, then the COM can say
that the LS doesnt represent the
public opinion (prevalent in Britain).
If an alternative government is
possible, then the country should not
be forced to go to polls.
The first argument can only be made when a
party was elected on a particular policy &
has subsequently lost majority due to breakup of a pre-poll alliance as it gives them a
moral right.
However, if this is not so, then the second
argument carries more weight.
o When the government still has majority in the LS
but is being opportunistic.
The President is bound to accept the advice
because if he doesnt, then the COM will
resign & no alternative COM will be able to
have majority in LS.
For example, the NDA government
in 2004.
Whether the President can dissolve the LS without any advice.
It is a purely theoretical distinction whether it is the
Presidents own idea or the COMs because the President
has to always have a COM.
The President can only try & convince the COM to advise
dissolution.

22

However, if the president can find an alternative COM, he


can do so.
There have been two occasions in Britain when this has
happened.
o The first occasion arose when Asquith was the PM
& there was a very radical budget change, which the
House of Lords (HOL) was refusing to pass. King
George V convinced him to dissolve the HOC.
Asquith was re-elected & the budget was passed.
o The second occasion arose when the same
government wanted to pass the First Parliament Act
to curb the powers of the HOL. Again King George
convinced Asquith to dissolve the HOC. Asquith
was re-elected yet again & the First Parliament Act
was passed.
However, in India, such occasion has never arisen at the
Centre but only at the State level.
Power to dismiss the COM
o There are 2 constitutional provisions.
All ministers hold their offices at the pleasure of the President.
Actually it is at the pleasure of the PM.
However, if the President dismisses the PM, then the entire
COM is considered dismissed.
When the ministry loses majority, it is acceptable for the
President to dismiss the COM.
However, when the COM still has majority, it is only in
extraordinary circumstances that the COM can be
dismissed.
o Such an occasion arose in Britain when Asquith
introduced the Irish Home Rule Bill. Several were
of the opinion that if the COM did not agree to a
dissolution, the King should dismiss the COM.
However, World War I started & the matter was
deferred.
When the government is guilty of subverting the
Constitution, the President may dismiss the COM on his
initiative, but he must have an alternative COM.
Ministers may not be a member of either LS or RS for a period of
6 months.

POWERS OF THE GOVERNOR

The powers & functions of the Governor are quite similar to those of the
President.
However, there are certain differences.

23

Since the President is elected by an Electoral College which gives equal


weightage to both State & Centre, he is as much the executive head of the State as
of the Centre.
The Governor has a dual role.
o He is the executive head of the State.
o He is the link between the State & the Centre.
The Governor may be required to be the agent of the Centre but definitely not the
agent of the political party in power at the Centre against the political party in
power in the State.
There are some express provisions in the Constitution that give the Governor
discretionary powers.
o For example, Article 163.
There are also some implied provisions.
o In case of any adverse report against the State government.
For example, reports recommending the imposition of Presidents
rule in the State.
o Reservation of certain Bills for the consideration of the President (though
sometimes, this is in the interest of the State government because that is
the only way that a State law which is in direct conflict with a Central law
can be allowed to exist).
However, the Governor is not really that independent because he can be removed
by the Central government.

24

Centre-State Relationship

R. C. Poudyal v Union of India


o Facts
After the incorporation of the State of Sikkim into the Union of
India, the Lepchas & Bhutias of Sikkim were given more
representation in the Legislative Assembly than should have been
according to the demography of the State.
Furthermore, 1 seat was reserved for a member of the Buddhist
Sangha, which was to be filled by the decision of all the Buddhist
monasteries in the State.
The amendment was challenged by the petitioners.
o It was unanimously held that the basic feature doctrine was applicable in
this case.
It was held (by a majority judgment of 4-1) that the first part of the
amendment providing for disproportionate representation of
Lepchas & Bhutias was valid.
It was held (by a majority judgment of 3-2) that the second part of
the amendment providing for separate electorate on religious
grounds for the seat reserved for a member of the Buddhist Sangha
was valid.
Federalism is part of the basic structure of the Constitution.
State of West Bengal v Union of India
o Facts
A law was passed by Parliament, on a subject in the concurrent list,
by which all the coal mines in West Bengal, both privately owned

25

as well as those owned by the State government, were acquired by


the Central government.
The law was challenged by the State government.
o It was held (by a majority judgment of 4-1) that the law was invalid.
State of Karnataka v Union of India
o Facts
There was a Congress government in the State.
The Janata government at the Centre appointed the Grover
Commission to inquire into allegations of corruption by the State
ministers as well as the CM.
The appointment of the commission was challenged by the State
government.
o It was held (by a majority judgment of 6-1) that the appointment of the
commission was valid as it fell under the residuary powers of the
Parliament.
Rajasthan Automobile Transport Co. v State of Rajasthan
o Facts
The issue was regarding the interpretation of Article 304.
Article 304 expressly states that any law passed by a State which
has the effect of restricting the flow of commerce to other States
should be reasonable & should have the Presidents assent.
o It was held that the interpretation which does not cripple the commerce of
the State should be adopted.

FEDERALISM

Concept of Federalism
o The word federal is derived from the Latin word foedus meaning both
league & covenant.
o Since the first federal Constitution was that of the US, futures
Constitutions were judged in comparison with it to ascertain whether they
are federal or not.
o However, since every Constitution has essential as well as subsidiary
features, even if a Constitution differs from the US Constitution in
subsidiary features, it can still be considered to be federal in nature if its
nature is essentially similar to that of the US Constitution.
o There are 2 conflicting notions about the idea of federalism.
K. C. Wheare provided a strict meaning of the idea of federalism.
However, according to this strict notion, he was unable to
classify even 4 Constitutions as federal.
He therefore drew a distinction between a federal
Constitution & a federal government.
Birch & Elzar provided a more broad meaning of the idea of
federalism.

26

They emphasized that federalism did not imply a stress on


autonomy but on mutual cooperation.
Birch coined the term cooperative federalism.
Elzar said that federalism means a relationship of
cooperation & partnership between the Centre & the State.
In India, there is a 3-tier system of government consisting of the Central
government, State government & Panchayats.
o Therefore, there are 2 sets of relationships.
That between the Panchayats & the State government.
This relationship cannot be classified as a federal one
because it is one that is unilaterally regulated by the State
government through the passage of laws.
That between the State government & the Central government.
This relationship can be classified as a federal one because
it can only be regulated by a Constitutional amendment
which requires ratification by at least half the States.
o Therefore, a federal government is different from a decentralized one.
Decentralization was first brought about by the Government of
India Act, 1919.
Federalism was only brought about by the Government of India
Act, 1935.
Essential Features of Federalism
o Dual Polity
There should be 2 layers of government & both should have
complete administrative paraphernalia.
o Distribution of Powers
This should not necessarily be equitable.
In fact, it is observed that the Centre is always dominant.
o The Distribution of Powers should be authentic
It should be written in the Constitution.
It should be written rigidly, i.e. it should be difficult to amend the
Constitution.
The Constitution should be supreme.
Judicial review should be present.
There should be a Federal Court for resolution of disputes.
o Equality among States.
In the US, all States have the same powers & States that are newly
admitted must necessarily have the same powers.
In India, there is a variety in Centre-State relations.
When is a Federal System Necessary?
o It is necessary when there is a federal society, meaning
It is a plural society, not based on ideology, but on stable diversity,
such as ethnicity, religion, geography, etc.
The pluralism is, by & large, territorially entrenched.

27

In India, pre-independence Partition was done on the basis


of religion.
However, post-independence organization of States was
done on the basis of language.
Advantages & Disadvantages of Federalism
o Advantages
It brings about some kind of unity.
The smaller the level of government, the closer it is to the people,
i.e. the people have more opportunities to participate in the
political process.
It leaves room for experimentation with policies on a smaller scale,
hence minimizing losses.
It assists the growth & enrichment of different cultures.
o Disadvantages (Dicey)
Weak government.
Rigid government (Difficult to change the distribution of powers).
Legalistic (Intervention of Federal Court in case of disputes).
Federal Nature of the Indian Constitution
o All the features of a federal Constitution are present on paper.
o However, it has certain distinguishing features of its own.
It is a constructed federation, i.e. it is not a bringing together of
previously independent entities because the States were created by
the Centre.
The States, having been used to a Central government, are unaware
of the limits of their power, leading to inter-State disputes (for
example, water disputes) as well as intra-State disputes (Telengana,
Vidarbha, etc.)
It is still an evolving federation.
The representatives from a State generally vote on the basis of
their political affiliations rather than on the basis of the State to
which they belong.
o It is not the first Constitution based on cooperative federalism.
However, the others are all so by practice whereas, in India, it is
embodied in the text of the Constitution.
o The Centres administrative & judicial powers depend on the State
machinery for enforcement.
o It tries to do away with the disadvantages of a federal system.
It overcomes the problem of weak government through provisions
for declaration of both general as well as financial emergencies.
Most important economic powers are in the hands of the
Centre.
It has learnt from the experiences of the US.

28
It overcomes the problem of rigid government through provisions
that allow for redistribution of powers (Article 252) without the
need for constitutional amendment.
Courts do not have any interpretive powers in this regard.
Parliament may legislate on any subject in the State list in
order to implement any international treaty.
It overcomes the problem of legalism through allowing for the
settling of disputes between the States & the Centre through nonjudicial means.
The Constitution leaves the financial distribution to the Finance
Commission, which is a non-judicial entity
It allows for flexibility as the Centre may allow a State law to
operate despite it being contrary to a Central law.
Centre has enough say in the State machinery through IAS & IPS
officers.
Centre can supercede the State government if it fails to comply
with its directions.
Centre has the responsibility of bringing the States into existence
(Article 3A).
All resources belong to the Centre.
o Gains form British rule.
A unified common Indian legal system & law.

INTRODUCTION

Article 1 defines India as a Union of States.


Parliament may, by law, admit or establish new States (Article 2).
o Admit means to allow territory that is not part of India to become a State
after joining the Union.
o Establish means to use existing territory to form a new State.
o Parliament may have variety in Centre-State relations.
o In the US, the Courts have taken the view that if a new State is admitted
on special terms & conditions, they will not be recognized because all
States must have the same terms & conditions.
o However, the Courts in Australia & Canada have recognized special terms
& conditions.
Parliament may form new States & alter the areas, boundaries or names of any
existing State (Article 3)
o The recommendation of the affected State(s) is not necessary.
o In Australia, a referendum is required.
Babulal v State of Bombay
o Facts

29
During the reorganization of States, there was talk of splitting the
Bombay Presidency into the States of Gujarat & Maharastra &
keeping Bombay as a Union Territory.
A Bill to this effect was sent by the Parliament to the State
Legislature, which gave its recommendation.
Later, the Bill was modified & a bi-lingual State was created with
Bombay as its capital.
The Act was challenged on the grounds that the Bill sent to the
State legislature was not the same as had been passed.
o It was held that the Constitution does not require that a Bill be referred for
a second time to the State legislature if it is modified because the States
consent for such a Bill is not necessary in the first place.
Laws enacted under Article 2 & Article 3 will be treated as constitutional
amendments but shall not come under Article 368 (Article 4).

TERRITORY

Parliament may make laws for any part of India & the State legislature may make
laws for any part of that State (Article 248).
o Law made by Parliament shall not be deemed to be invalid on the ground
that it would have extra-territorial operations.
o However, the State legislatures do not have the power to pass laws that are
extra-territorial & the SC has followed the doctrine of territorial nexus.
The law may be operating prima facie outside the territory of the
State but if there is a nexus between the State & the person, event
or property involved, it is not extra-territorial.

DOCTRINE OF TERRITORIAL NEXUS

Governor General v Raleigh Investment (1945)


o Facts
The Income Tax Act was passed by the Central Legislature of
India.
Under the Act, the respondents were subject to tax.
The respondents were an English company based in London &
held shares in 9 other companies also based in London.
Those 9 companies did business in India, from the profits of which
they paid dividends to the respondents.
Income tax was levied on these dividends on the basis of territorial
nexus.
o It was held that the tax was permissible & the law was not extra-territorial.
Wallace Brothers v Commissioner of Income Tax (1948)
o Facts

30
The appellant firm was an English firm which had a partnership
with a company which operated in India.
Income tax was imposed on them not only on the income from
India but on their whole income.
o It was held by the Privy Council that the law was valid because there was
a territorial nexus.
o The Privy Council also justified the income tax on the whole income
saying that the bulk of the income was from India.
o Comments
This left the scope open for double taxation because England had
the right to impose its own income tax.
Later. Indian Courts have laid down that the law must restrict itself to the
connection & must be pertinent to the connection.
State of Bombay v United Motors
o Facts
The State of Bombay imposed sales tax on firms that were neither
based in Bombay nor had dealings in Bombay, but were sending
goods into Bombay.
The respondents challenged the law.
o It was held that there was enough territorial nexus to uphold the law.
o Comments
This decision has been overruled by the Central Sales Tax Act &
now only the state where the goods are manufactured is entitled to
impose tax.
Tata Iron & Steel Co. v State of Bihar (1958)
o Facts
The appellants were located in Bihar & goods were manufactured
there.
The Head Office & Sales Office of the appellants was in Calcutta.
Bihar passed a law imposing tax.
o It was held that the law was valid.
State of Bombay v RMDC
o Facts
RMDC office was in Bangalore.
They published a magazine.
Large numbers of the magazine were sold in Bombay.
Bombay taxed the income derived from the sales in the state.
o It was held that the tax was legitimate.
Khyerbari Tea Co. v State of Assam (1963)
o Facts
Tea packets originated in West Bengal & the destination was also
in West Bengal.
However, during transit, it had to pass through a small territory of
Assam.

31
Assam imposed a tax for transit at a flat rate, irrespective of the
distance.
o It was held that the tax was legitimate.
State of Bihar v Smt. Charu Shilla Dassi
o Facts
There was a trust registered in the state.
But part of the trust was located outside the state.
Bihar had a law that regulated the running of trusts.
It was contended by the respondent that this law shouldnt apply &
that the law of the state in which the property was should apply.
o It was held that since the law sought to regulate the conduct of the trust,
the Bihar law was applicable.
o However, the SC also said that in case of conflict of laws regulating
property, the law of the other state would apply.

SUBJECT MATTER

This covered under Article 246.


There are 2 issues.
o Whether the Parliament has the jurisdiction to pass a law or not.
o Whether, in case of overlap of entries, an entry should be in List I, II or III
of Schedule VII.

RULE OF COLOURABLE LEGISLATION

It basically says that what a legislature cannot do directly, it cannot do indirectly


as well.
This doesnt necessarily mean that the motive of the legislature is bad.
It is a question of power & not of motive.
Gajpati Narayan Dev v State of Orissa
o Facts
Orissa was going to pass the Zamindari Abolition Act under which
it was to pay compensation.
There was already a law on agricultural income tax, which was
amended to increase the tax.
The Act was challenged on the allegation that the motive was to
reduce the compensation as the income tax would be adjusted
against the compensation.
o It was held that since Orissa had the power to amend the Agricultural
Income Tax, the Zamindari Abolition Act was valid because the motive
was irrelevant. (B. K. Mukherjee, J.)
Kameshwar v State of Bihar
o Facts

32
One of the clauses of the Bihar Zamindari Abolition Act was that if
there are any arrears by tenants to landlords, then the arrears are
vested in the government & the landlord receives half the arrears
from the government.
This was challenged by the petitioners.
o It was held that the law was invalid because this was not a case of
inadequate compensation but of colourable exercise of power.
Mukul Nair v State of Kerala
o Facts
The Kerala government imposed tax on land at a flat rate,
irrespective of the fertility of the land.
The petitioner owned forest land but he could not fell more than a
certain number of trees determined by the DM of the district.
Therefore, he was paying a lot more tax than he was earning.
o It was held that the law was a colourable legislation as it sought to drive
the petitioner to bankruptcy & thereby allow the government to take
possession of the land.

RULE OF PITH & SUBSTANCE

The rule does not deny any encroachment but merely decides whether the
encroachment is inconsequential or not.
The rule presupposes that the policies of the State & the Centre are not at variance
with each other.
Prafulla Kumar Mukherjee v Bank of Commerce (AIR 1947 PC 60)
o Facts
State passed a law whereby the debt liability of agriculturists had
been reduced.
Agriculture was a State subject, as was money lending.
However, the law also affected promissory notes, which was a
Union subject.
The law was challenged on this ground.
o It was held that the law was valid because the encroachment on the subject
of promissory notes was only incidental.
A. S. Krishna v State of Madras
o Facts
Criminal law & criminal procedure is an entry in the Concurrent
List.
State passed a law under Entry 8 of the State List that imposed
criminal liability for the violation of the provisions of the law.
The law also laid down special rules of trial & investigation that
were different from the Criminal Procedure Code & detrimental to
the accused.

33
The law had not been reserved for the consideration of the
President.
o It was held, applying the rule of pith & substance, that the law was valid
because it was a State law of the State List in conflict with a Central law in
the Concurrent List incidentally.
o The Court also said that Article 254 applies only when there is a conflict
of laws between the Centre & the State in the Concurrent List.
Balsara v State of Bombay
o Facts
The issue involved was that the prohibition law of the state also
affected imported liquor & import-export was a Union subject.
o It was held, applying the rule of pith & substance, that the law was valid.

INTERPRETATION OF LISTS

Powers are to be interpreted broadly.


o Ancillary powers should be tagged along with Entries.
Interpretation should also be progressive.
R. S. Joshi v Ajit Mills (1977) & Mafatlal Industries v Union of India
o Facts
Article 265 says that no tax may be collected except with the
authority of law.
However, if a tax is wrongly imposed, the government said that it
could claim the tax from the dealers because the dealers should not
be allowed to retain undue benefits.
This was challenged saying that it was an instance of colourable
legislation.
o It was held that, due to lack of a better alternative, this was valid.

PRINCIPLE OF HARMONIOUS CONSTRUCTION

As far as possible, legitimate space should be given for both Entries to have
effective scope of functioning.
A specific Entry takes precedence over a general Entry.
Thika Ramji v State of U.P.
o Facts
Sugar industry is a State subject under Entry 24 of the State List.
Centre passed a law regulating the sugar industry under Entry 52
of the Union List.
The question raised was whether the State had any remaining
power to legislate on the sugar industry.
o It was held that the sugar industry consisted of 3 stages pre-manufacture
(raw materials), manufacture & post-manufacture (marketing). Of these,
only manufacture was within the scope of Entry 52 of the Union List &

34

the State still had the power to legislate on the pre-manufacture & postmanufacture stages.
Calcutta Gas Co. v State of West Bengal
o It was held that even though when a law is passed by the Centre under
Entry 52 of the Union List, the State becomes devoid of power, the
specific Entry 25 of the State List prevails over the general Entry 24 of the
State List.

REPUGNANCY

Clause 2 of Article 254 is an exception to Clause 1 of the same Article & is


limited to cases relating to conflicting laws on the same matter in the Concurrent
List.
There is a difference between competence & repugnancy.
o Competency deals with whether a law is within the power of a legislature
or not.
o Repugnancy deals with whether a law passed by an inferior legislature is
in conflict with a law passed by a superior legislature.
Therefore, repugnancy can only arise when there are conflicting laws, i.e. on
matters in the Concurrent List.
However, this should not be taken to mean that a State law on a State subject can
exist even though it is in conflict with a Central law on a Central subject on the
pretext that it falls outside the scope of Article 254.
Repugnancy can be of 2 kinds.
o When both the laws cannot coexist, i.e. literal incompatibility as in the
case of A. S. Krishna v State of Madras.
o When both the laws can be complied with literally but not practically as in
the case of Hoechst Pharmaceuticals v State of Bihar.
Hoechst Pharmaceuticals v State of Bihar
o Facts
The Parliament passed the Essential Commodities Act under Entry
33 of the Concurrent List.
Under the Act, they issued an order fixing the prices but allowing
for local taxes.
The State passed a law imposing Sales Tax under Entry 54 of the
State List.
The law imposed a surcharge of 10% on dealers having a turnover
in excess of 5 lakhs that could not be passed on to the consumers.
o It was held that the State law was valid because it had received the
Presidents assent.
Vijaykumar Sharma v State of Karnataka
o Facts
The President allowed a State law to operate despite being in
conflict with a Central law.

35
Later, a new law was passed by the Parliament that was again in
conflict with the State law.
The petitioners asked that the State law be declared inoperable.
o It was held (1 dissenting) that there was no conflict of laws.
o The Court also said that, for repugnancy, the 2 laws must be on the same
matter in the Concurrent List.

DOCTRINE OF OCCUPIED FIELDS

If the Centre has stated its intention to legislate on a field, the State loses its
power to legislate on the same field.
This doctrine cannot be applied to the Concurrent List in India.
However, it can be applied when there has been so much legislation in a field that
there is no room for any other law.
The mere possibility of a conflict is not enough; the conflict must already exist.
(Thika Ramji v State of U.P.)
Repugnancy cannot have retrospective effect.
Deep Chand v State of U.P.
o Facts
The State enacted a law by which it nationalized bus routes.
The Presidents assent was obtained because it was in conflict with
the Central law.
The Parliament then amended the Central law to overrule such
laws by other States.
o It was held that the State law was now invalid because it was inconsistent
with the Central law.
Zaverbhai v State of Bombay

EFFECT OF REPUGNANCY

The law is null & void. (Karunanidhi case)


However, this creates problems in situations where Presidents assent is given to a
conflicting State law because it implies that the Central law becomes null & void.

CONFLICT BETWEEN ENTRY 25 OF THE CONCURRENT LIST & ENTRY 66


OF THE UNION LIST

Osmania University Teachers Association v State of A.P.


o Facts
The State sought to create a body to function as a subsidiary of the
UGC at the State level.
This was challenged by the petitioners.
o It was held that the function of coordination of institutions of higher
education was the exclusive domain of the Centre under Entry 66 of the

36

Union List & excluded from the domain of the State under Entry 25 of the
Concurrent List.
State of Tamil Nadu v Adhiyaman Educational & Research Institute (1995)
o Facts
Self-financing colleges were being set up in Tamil Nadu.
They were to be affiliated to the universities of Tamil Nadu.
Colleges were subject to the conditions laid down by AICTE.
The State government sought to impose additional conditions.
This was challenged by the petitioners.
o It was held that the State government could not impose any additional
conditions because this was the exclusive domain of the Centre under
Entry 66 of the Union List.
Gujarat University v Krishna (1963)
o Facts
The State made it compulsory for all institutions to adopt either
Hindi or Gujarati as the medium of instruction.
This was challenged by the petitioners.
o It was held that such a move by the State government lowered the
standards of education & was therefore in the exclusive domain of the
Centre under Entry 66 of the Union List.
Chitralekha v State of Mysore (Late 1960s)
o Facts
State government gave some weightage to extra-curricular
activities for admission purposes.
This was challenged on the ground that it lowered the standards of
education.
o It was held that this move by the State government did not amount to the
lowering of standards & was therefore valid.
State of M.P. v Nivedita Jain (1980s or 1990s) (& Ajay Kumar Singh v State of
Bihar)
o Facts
The minimum marks required for admission of reserved category
students were lowered to 0 because the seats could not be filled.
This was challenged by the petitioner.
o It was held that what matters is not admission standards but even standards
& therefore this was within the domain of the State under Entry 25 of the
Concurrent List.
Dr. Preeti Srivastava v State of M.P.
o Facts
The minimum marks for admission at the PG level was 45 for the
general students & 20 for the reserved students.
The rule at the MBBS level was that there would not be a variation
of more than 5% between the 2 categories of students.
However, there was no such rule for the PG level.

37
The petitioner challenged the variation at the PG level saying that
the same standards as the MBBS level should apply under Entry 66
of the Union List.
o It was held that the variation was not correct as it amounted to a lowering
of standards which was in the exclusive domain of the Centre under Entry
66 of the Union List. (Sujata Majumdar, J.)
Dr. Ambesh v Principal, Meerut Medical College
o Facts
There was prescription of minimum requirement of 50% by Indian
Medical Council (IMC).
The State government raised it to 55%.
This was challenged by the petitioner.
o It was held that the IMC only prescribed the minimum requirement & the
State could raise the requirement under Entry 25 of the Concurrent List.

CONFLICT BETWEEN ENTRY 54 OF THE UNION LIST & ENTRY 23 OF THE


STATE LIST

Hingir Rampur Coal Company v State of Orissa (1960s).


o Facts
In 1952, the Orissa government passed a law under Entry 23 of the
State List imposing a fee at the rate of 5% on minerals for welfare
of labour, etc.
This was challenged because, in 1948, this particular power had
been appropriated by the Centre under Entry 54 of the Union List.
o It was held that the State law was valid because the power had been
appropriated before the Constitution came into force.
o However, the Court said that when the Centre appropriates a power in this
manner after the Constitution has come into force then such law by the
State would not be valid.
o The Court also said that it is not necessary for the Centre to actually
legislate; mere statement of intention to legislate is enough to appropriate
the power. (Gajendragadkar, J.)
State of Orissa v Tulloch & Co.
o Facts
The same law was challenged on the basis of a declaration similar
to that of 1948 made by the Centre in 1957.
o It was held that the State law was not valid because Entry 23 of the State
List was subject to Entry 54 of the Union List.

CONFLICT BETWEEN ENTRY 52 OF THE UNION LIST & ENTRY 24 OF THE


STATE LIST

Tika Ramji v State of U.P.


o Facts

38
Sugar industry is a State subject under Entry 24 of the State List.
Centre passed a law regulating the sugar industry under Entry 52
of the Union List.
The question raised was whether the State had any remaining
power to legislate on the sugar industry.
o It was held that the sugar industry consisted of 3 stages pre-manufacture
(raw materials), manufacture & post-manufacture (marketing). Of these,
only manufacture was within the scope of Entry 52 of the Union List &
the State still had the power to legislate on the pre-manufacture & postmanufacture stages.
o Comments
Despite this, the marketing of sugar can still be legislated upon by
the Centre under Entry 33 of the Concurrent List.
Khaitan Sugar Mills v State of U.P.
Harakchand v Union of India
o Facts
The issue was whether gold ornaments were an industry.
It was argued on behalf of the petitioners that gold ornaments
could not be considered an industry under Entry 52 & Entry 7 of
the Union List because it involved works of art.
o It was held that it was an industry.

RESIDUARY POWERS OF LEGISLATION

All residuary powers except taxing powers should be in the Concurrent List.
(Sarkaria Commission)
R. K. Bhargava v Union of India (1966)
o Facts
Under the Finance Act, the Centre imposed a law requiring people
to deposit a certain amount in the Annuity Deposit Scheme.
This was challenged by the petitioners.
o It was held that this valid because it fell under the exercise of residuary
powers of the Centre.
o The concurrent judgment said that the law was valid because it was a mere
variation of income tax, which was a Union subject. (Hidayatullah, J.)
Attorney General v Amritlal Parjivan Das
o Facts
A law against black marketers & stock exchange racketeers was
passed by the Centre.
This was challenged by the respondents.
o It was held that the Centre had the power to legislate about preventive
detention on any subject under its residuary powers.
Union of India v H. S. Dhillon
o Facts

39
Agricultural land was included in wealth tax.
This was challenged on the ground that it violated Entry 86 of the
Union List.
The Punjab & Haryana HC held that the law was invalid.
The Centre appealed against this decision.
It was held, by a judgment of 4-3, that the law was valid.
The majority judgment said that in every governing system, the governing
body must have the power to tax, either at the Centre or at the State, &
since this was not so in this case, the Centre could pass a law under its
residuary powers, i.e. the wealth tax fell partly under Entry 86 of the
Union List & partly under the residuary powers of the Centre. (Sikri, J.)
The concurring judgment said that the meaning of wealth tax has been
misinterpreted & that, in calculating capital assets, liabilities on the assets
needs to be subtracted. Since this is not covered under Entry 86 of the
Union List, therefore it is totally under the residuary powers of the Centre.
(Mittal, J.)
Comments
The reason for such a gap in the Constitution is because the
Constituent Assembly envisaged drastic land reforms to take place
after which it would be difficult for anyone to own so much land
so as to be subject to wealth tax. (Seervai)

o
o

LEGISLATION ON MATTERS IN THE STATE LIST BY THE CENTRE

Article 252.
Article 253.
RMDC v State of Bombay
o Facts
Bombay passed a law regulating prize competitions under Entry 34
of the State List.
The Bombay HC held that this law did not apply to firms from
Bombay operating in other states.
Bombay, along with a few other states, requested the Centre to
pass a common law on this subject.
The Centre did so & Mysore later adopted it.
Mysore then sought to impose a tax on gambling under Entry 62 of
the State List.
This was challenged on the ground that gambling was a prize
competition under the power of the Centre & the State was not
competent to legislate on it.
o It was held that the State law was valid because it was passed under Entry
62 of the State List, which had not been surrendered to the Centre, & not
Entry 34 of the State List, which had been surrendered to the Centre.
Krishna Bhimrao Deshpande v Land Tribunal, Dharwar

40
o It was held that when a power in the State List is surrendered, it doesnt
mean that all aspects of the relevant entry are surrendered; only the
relevant parts are surrendered.
CENTRES CONTROL OVER STATES LEGISLATIVE POWER

Centre can control the exercise of the States legislative power through the
Governor.
The Governor can reserve any State Bill for the consideration of the President.
o If the State does not agree to the Governors recommendations, the
Governor is still bound to give his assent.
o However, if the State does not agree to the Presidents recommendations,
the President is not bound to give his assent.
Articles 31A, 31C, 304B & 254 (2) make it in the States interest to reserve a
State Bill for the consideration of the President.
Article 288 makes it mandatory for a State Bill to be reserved for the
consideration of the President when it seeks to impose a tax on the Central
government or any of its agencies for water & electricity.

ADMINISTRATIVE RELATIONS

Article 73 defines the executive power of the Union.


Article 162 defines the executive power of the State.
Both the Parliament as well as the President can delegate their functions to the
State. (Article 258)
o In case of Parliament, the States consent is not required.
o In case of the President, the States consent is required.
IAS & IPS officers, though belonging to a State cadre, are appointed by the
President.
States are bound to ensure compliance of Central laws. (Article 256)
Centre can also issue directions to the States on certain matters. (Article 257)

WHETHER ARTICLES 256 & 257 HAVE TO BE RESOLVED POLITICALLY OR


CAN BE ENFORCED THROUGH THE COURTS:

ADM, Jabalpur v Shiv Kant Shukla


o It was stated that Articles 256 & 257 relate to disputes between the Centre
& the States at the political level & do not require the intervention of the
Courts. (Y. V. Chandrachud in his obiter dictum)
Jay Engineering Co. v State of West Bengal (Calcutta HC)
o It was held that it is the responsibility of the State to protect citizens
through the police despite instructions from the Labour Minister to seek
the permission of a magistrate before getting involved in any incidents
involving labour.

41

Deputy Accountant General v State of Kerala (Kerala HC)


o It was held that the State cannot withdraw criminal prosecutions en masse.

SCOPE OF ARTICLE 258:

Jayantilal Amritlal v Rana


o It was held that the President can delegate not only executive powers but
also quasi-legislative & quasi-judicial powers.
o It was also held that the President can only delegate the powers of the
Union Executive & not the powers granted specifically to the President,
i.e. a distinction must be drawn between the powers of the President & the
powers of the Union Executive. (J. C. Shah, J.)
Sardari Lal v Union of India
o It was held that the President cannot delegate those powers to secretaries
which he cannot delegate to the States.
Samsher Singh v State of Punjab
o It unanimously (7-0) overruled Sardari Lal v Union of India.
o It was held that the satisfaction of the President meant the satisfaction of
the Council of Ministers or the concerned official.

ARTICLE 298:

If there are business activities being carried on by the Centre, they are subject to
State laws.
Similarly, if a State is carrying on business activities in another State, it is subject
to the laws of that State.

SCOPE OF ARTICLE 355:

Naga Peoples Movement for Human Rights v Union of India


o Facts
In 1958, the Centre enacted the Armed Forces Special Powers Act.
This was challenged on the ground that it interfered with the
federal nature of the Constitution.
o It was held that the law was valid because, at the time it was enacted, it
came partly under Entry 2 of the Union List & partly under the residuary
powers of the Centre. Now, after the 42 nd amendment in 1976, it comes
partly under Entry 2 of the Union List & partly under Entry 2A of the
Union List.
State of Karnataka v Union of India
o Facts
Under the Commission of Enquiry Act, 1952, the Centre set up the
Grover Commission to inquire into allegations of corruption

42

o
o

against the Chief Minister & the Council of Ministers of


Karnataka.
This was challenged.
It was held (6-1) that the Centre was authorized to set up such a
Commission.
The majority judgment stated that the Centre had the power under Article
356 to supercede the State &, since this is done for some real or apparent
reason, it is only fair if it decides to inquire into the matter before
exercising its power, i.e. the power to set up such a Commission is
ancillary to the Centres power under Article 356. (Beg, J.)
The minority judgment stated that the Constitution was silent on the
matter & it was necessary to fill the gap by saying that, since the
Constitution was federal in character, the powers of the Centre in relation
to the States is only that which is expressly provided in the Constitution,
i.e. since the power to set up such a Commission is not expressly granted
by the Constitution, the Centre does not have such power. (Kailashan, J.)
Comments
This decision may be criticized on the following grounds.
The reasoning of the majority judgment is flawed.
The SC judges were so demoralized by the heavily
criticized decision in ADM, Jabalpur v Shiv Kant Shukla
that they were reluctant to oppose any move by the new JP
government at the Centre.

PROCLAMATION OF PRESIDENTS RULE


ARTICLE 356:

Its ancestry lies in the Government of India Act, 1935.


o Section 45 empowered the Governor General to impose Governor
Generals rule with the ratification of the British Parliament through the
Secretary of State for India in England.
o Section 93 gave the same powers to the Provincial Governors with the
additional requirement that the Governor Generals concurrence was
necessary.
o The reasons why such provisions were included in the Government of
India Act, 1935 were as follows.
The British felt that the Indians were incapable of self-government.
The British felt that the Indians would not cooperate with the
British.
The reason why these provisions were incorporated in Article 356 was because
the Constitution makers were of the opinion that the States were untrained in
democracy.

43

SITUATIONS IN WHICH ARTICLE 356 HAS BEEN RESORTED TO:

To settle intra-party problems.


o By Nehru in Punjab in 1951.
o These definitely amount to a misuse.
When the party in power in a State loses a Parliamentary election.
o The justification for this is that the party has lost the peoples mandate.
o By the Janata Party in 1977, who dismissed the Congress governments in
9 states.
o By Indira Gandhi in 1980, who dismissed the Janata Party governments in
9 states.
o By Nehru in Kerala in 1959, who dismissed the Communist government.
When no viable government can be formed due to a hung Assembly.

SAFEGUARDS AGAINST MISUSE:

President can try & dissuade the PM & the Council of Ministers.
o President K. R. Narayanan refused in the Bihar case & succeeded.
o Acting President V. V. Giri tried to refuse when the Congress government
at the Centre dissolved the JP State governments.
The Parliament may refuse to ratify.
o This requirement for approval of Parliament was diluted in the case of
State of Rajasthan v Union of India.
o The biggest of contribution of S. R. Bommai v Union of India was that it
has, at least halfway, ensured that this ratification is made mandatory.
It was said that, in order to dissolve the Assembly, there must be
prior approval of Parliament & the Assembly can only be
suspended.
th
After the 44 amendment, Presidents Rule cannot be extended beyond 1 year.
o In U.P., during the UF government, there was a hung Assembly & Article
356 was imposed. After 1 year, it was extended & this was challenged in
the Allahabad HC on the ground that it was unconstitutional. The Centre
contended that it had not extended it but re-imposed it. The Allahabad HC
held that it was illegal.

JUDICIAL REVIEW:

State of Rajasthan v Union of India


o Facts
Before this case, HCs were invited to look into Article 356 & none
intervened on the ground of the Parliament being there.

44
The first time suit filed in the SC, the LS was dismissed but the
State governments continued to exist.
The JP government at the Centre dismissed these State
governments because they did not have the requisite majority in
the Electoral College so as to gain an upper hand in the
Presidential elections.
They also lacked a majority in the RS & thought that if the 9 State
governments became JP governments, it would help them get their
Bills passed in RS.
Charan Singh advised the 9 CMs to step down because the LS
elections had given the JP a mandate.
Later, the Law Minister said that if friendly advice was not heeded,
Presidents Rule would be imposed.
The petitioning CMs wanted the SC to decide on 2 grounds.
Losing the LS elections is no ground for the imposition of Article
356.
Before Presidents Rule is declared, the Parliaments should
approve it.
The 7-judge bench of the SC heard the arguments & rejected the
contentions of the petitioners, endorsing the actions of the Centre.
Consequences
After the SC order, Presidents Rule was declared, new elections
were held without the approval of the Parliament & new
Assemblies were inducted.
Circumstances
The 1977 elections were a constitutional watershed.
3 out of 7 judges of the bench were part of the ADM, Jabalpur v
Shiv Kant Shukla case.
Beg, C.J.I. was also part of the supersession episode.
Comments
The SC should have said that the matter was premature &
disallowed the petition.
The letter written by the Home Minister could be considered as a
directive which the States had not performed & hence Article 356
was imposed.
The SC was unable to decide very effectively as to what extent the
Courts could intervene judicially & lacked clarity as to the stand
they should take.
The only conclusion that can be drawn is that Courts will not
interfere under ordinary circumstances.
The Courts can intervene on the issue of whether the
government has acted as per the Constitution.
The Courts cannot intervene on the issue of whether the
government has acted incorrectly or correctly.
Positive Aspect

o
o

45
For the first time, the SC allowed that judicial review is possible,
though they were able to define it well.
If powers are given to administrative authority, the one cannot go to the Courts.
o The Courts can only look into whether the administrative authority has
acted within the corners of the law.
Associated Provincial Picture Houses Pvt. Ltd. v. Wednesbury Corporation
o Facts
Under law, Wednesbury Corporation had authority to give license
to movie halls for Sunday screenings as per its conditions.
Wednesbury Coroporation gave licenses subject to the issue that
the hall will not allow entry for children under the age of 15.
This was challenged.
o It was held that the Courts will not look into whether the condition was
justified & will only look intervene in extraordinary circumstances, i.e.
when the decision of the corporation is perverse & opposed to rationality.
o It was said that the Courts will only look into whether Wednesday
Corporation worked as per the law.
After the UK became a member of the EU, the understanding of reasonability is
determined by proportionality.
In the case of S. R. Bommai v Union of India, it was said, 2 dissenting judges
apart, that there must be a difference between ground of scrutiny & standard of
scrutiny.
Civil Service Union v Minister for Civil Services
o The House of Lords said that there are statutory powers & prerogative
powers & that the exercise of the latter is not beyond judicial review.
o On the issue of whether the right to form a union can be taken away, the
House of Lords said that they will draw a line for the exercise of
prerogative powers.
In the US, where Article 4 of their Constitution is similar to Article 356 of our
Constitution, the Courts have always refused to intervene & have left it to
Congress.
S. R. Bommai v Union of India
o 6 states were involved; 3 in each category.
o The 3 States in the first category were U.P., Rajasthan & M.P. & the facts
regarding these States are as follows.
The U.P. CM resigned after the Babri Masjid demolition without
waiting for his dismissal.
The only thing wrong with the first category States was that those
ministers belonged to the BJP, which was also in power in U.P.
It was not the government but the party that was guilty.
Strictly following the law, the BJP should have been outlawed.
o The SC unanimously upheld the dismissal of these governments & did not
scrutinize the grounds for dismissal.

46
o The 3 States in the second category were Karnataka, Meghalaya &
Nagaland.
The only thing common between these States was that defections
had taken place.
The issue was whether the government had ceased to exist or
should the new government which had come into existence be
allowed to continue.
Karnataka
The Janata government was dismissed because a few
MLAs defected.
Meghalaya
There were perpetual defections.
The opposition government suffered.
Nagaland
There were perpetual defections.
The Congress government suffered.
o The SC held that the dismissals were invalid.
o On the issue of the scope of judicial review, all agreed that Courts had the
power to judicial review & that the scope was wider than that laid down in
the case of State of Rajasthan v Union of India.
o The SC also stated that constitutional law & administrative law are
different because the standard of scrutiny in constitutional law under
Article 356 cannot be as strict as the Courts exercised in ordinary cases of
administrative law.
o Comments
The decision regarding Karnataka is technically correct but the
Governor should allow for a floor test before he reaches any
decision.
The decision of the SC as per constitutional law requirements is
wrong, but in the prevailing political situation of India, it has been
largely welcomed by the public.

S R Bommai Guidelines

FINANCIAL RELATIONS

47

JUDICIARY
Independence of the Judiciary: Having regard to the importance and significance
attached to the function performed by the judiciary, the Constitution has consciously
provided for separation of judiciary from the executive. Not only this, the Constitution
discloses a distinct bias in favour of the independence of the judiciary. It is in furtherance
of this objective that several provisions relating to the appointment and removal of
judges, at whatever level they may be, have been enacted. A brief reference to the said
provisions would now be in order.
Justice Bhagwati, who led on behalf of the minority observed in Union of India v.
Sankalchand Himatlal Sheth:2
"...the independence of judiciary is a fighting faith of our Constitution. Fearless
justice is a cardinal creed of our founding document.... Justice, as pointed out
by this Court in Samsher Singh v. State of Punjab [1974 Indlaw SC 127: 1974
Indlaw SC 127: 1974 Indlaw SC 127] can become 'fearless and free only if
institutional immunity and autonomy are guaranteed'."

Appointment of Judges to the Supreme Court


Article 124(2): Clause (2) of Article 124 inter alia says that:
every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme Court and of
the High Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years:
2

1977 Indlaw SC 104 : 1977 Indlaw SC 104 : 1977 Indlaw SC 104. (SCC pp. 236-37, para 50)

48

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted.
Under our constitutional scheme, the President is the constitutional head. In exercise of
the powers vested in him by the Constitution, he acts upon the aid and advice of Union
Council of Ministers. So far as the executive power of the Union is concerned, it is
exercised by the Union Council of Ministers in the name of the President.
Clause (2) of Article 124 speaks of consultation, whether it be with the Chief Justice of
India, Judges of the Supreme Court or with the Judges of the High Court. The expression
is not concurrence. The Constituent Assembly debates show that when it was
suggested by some of the members that the expression should be concurrence and not
consultation, it was not agreed to. Similarly, the suggestion to provide for approval of
Parliament or its upper House - probably inspired by the U.S. Constitution was also not
agreed to by Dr. Ambedkar (see his speech in Constituent Assembly debates Vol.8
p.258).
Practice followed till 1981: A practice had developed over the last several decades
according to which the Chief Justice of India initiated the proposal, very often in
consultation with his senior colleagues and his recommendation was considered by the
President (in the sense explained hereinabove) and, if agreed to, the appointment was
made. By and large, this was the position till 1981.

Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P.


Gupta vs. Union of India (AIR 1982 SC 149), the majority held that consultation
does not mean concurrence and ruled further that the concept of primacy of the Chief
Justice of India is not really to be found in the Constitution. It was held that proposal for
appointment to High Court can emanate from any of the four constitutional functionaries
mentioned in Article 217 and not necessarily from the Chief Justice of the High Court.
This decision had the effect of unsettling the balance till then obtaining between the
executive and judiciary in the matter of appointment. The balance tilted in favour of the
executive.
Not only the office of the Chief Justice of India got diminished in importance, the role of
judiciary as a whole in the matter of appointments became less and less.
In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court
Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) overruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only
overruled S.P. Guptas case but also devised a specific procedure for appointment of
Judges of the Supreme Court in the interest of protecting the integrity and guarding the
independence of the judiciary. For the same reason, the primacy of the Chief Justice of

49
India was held to be essential. It held that the recommendation in that behalf should be
made by the Chief Justice of India in consultation with his two senior-most colleagues
and that such recommendation should normally be given effect to by the executive.
Elaborate reasons were are recorded in support of the proposition that selection of judges
must be in the hands of the judiciary in this country and how the systems prevailing in
other countries are alien to our constitutional system.
One of the judges relied upon Article 50 of the Constitution which speaks of separation of
judiciary and executive and excluded any executive say in the matter of appointment to
safeguard the cherished concept of independence. It held at the same time that it was
open to the executive to ask the Chief Justice of India and his two colleagues to
reconsider the matter, if they have any objection to the name recommended but if, on
such reconsideration, the Chief Justice of India and his two colleagues reiterated the
recommendation, the executive was bound to make the appointment. Reaction to this
judicial assertion of power have not been uniform.
In short, the power of appointment passed into the hands of judiciary and the role of the
executive became merely formal.
The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion
rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the
President under Article 143 of the Constitution [In Re Presidential Reference
Case]. All the basic conclusions of the majority in the 1993 decision were reaffirmed.
There was, however, some variation. It was held that the recommendation should be
made by the Chief Justice of India and his four senior-most colleagues (instead of the
Chief Justice of India and his two senior-most colleagues) and further that Judges of the
Supreme Court hailing from the High Court to which the proposed name comes from
must also be consulted. In fact, the Chief Justice of India and his four senior-most
colleagues are now generally referred to as the Collegium for the purpose of
appointment of Judges to the Supreme Court.
Seniority to be followed in appointment of Chief Justice of India: So far as the
appointment of the Chief Justice of the Supreme Court of India is concerned, both the
1993 decision and the 1998 opinion lay down that the senior-most judge should always
be appointed as the Chief Justice of India.

50

AMENDMENT OF THE CONSTITUTION

There are several portions of organic law that, if changed, would impact certain
Constitutional provisions.

There are 3 different types of Constitutional amendments (Article 368)


Those that can be made simply like ordinary law, without any special
requirements to be met.

They require only a simple majority of the members present &


voting.

Examples of such amendments are

Issues of citizenship.

Changes to the Schedule V or Schedule VI of the


Constitution.

Those that require special requirements to be met.

They require a majority in each House of Parliament.

The majority required is not an ordinary majority but a 2/3


majority.

51

The 2/3 majority must not be less than the ordinary majority of the
total strength of the House.

At least half the State legislatures need to ratify it.

The President does not have any choice but to give his assent to
such an amendment (according to the 24th Amendment).

The question that arises is regarding why the Presidents


assent is required at all.

The probable reason is because there has to be some authentication before


the amendment comes into effect.

Even the Courts cant question such amendments.

JUDICIAL PRONOUNCEMENTS IN THIS REGARD

Sri Sankari Prasad Singh Deo v Union of India & State of Bihar [1952] 1 SCR 89
Facts

The Bihar government passed the Bihar Land Reform Act which
sought to do away with the zamindari system.

The Act affected small landowners who didnt till their own land
but didnt affect large landowners who tilled their own land.

The Act was challenged because the small landowners were given
a higher rate of compensation than large landowners.

The Act was struck down by the Patna High Court as violative of
Article 14 of the Constitution.

The Bihar government appealed against this decision to the SC.

52

However, before the SC could give its decision, the Central


government passed the 1st Amendment to validate the Act.

This amendment was challenged by the petitioners.

Arguments raised by the petitioners & the SCs replies.

The amendment did not comply with the requirements of Article


368.

The SC rejected this argument by saying that Article 368


only applied to those amendments that were specifically
mentioned in the Article.

The amendment was not in compliance with Article 13 (2) of the


Constitution.

The SC rejected this argument by saying that Article 13 (2)


only applies to ordinary laws & not amendments. It also
said that Article 368 overrules Article 13 (2).

The amendment modified the powers of the SC & the HCs to


question amendments & therefore it required ratification by at least
half the State legislatures.

The SC rejected this argument by saying that the


amendment merely reduced the number of occasions that
the Courts would be able to question amendments & did
not modify their powers & hence ratification by the State
legislatures was not necessary.

It was held that the amendment was valid.

Sajjan Singh v State of Rajasthan AIR 1965 SC 845


Facts

The petitioners challenged the constitutional validity of the 17th


amendment.

Arguments advanced & reasons for decision

53

The amendment modified the powers of the SC & the HCs to


question amendments & therefore it required ratification by at least
half the State legislatures.

The SC accepted this argument but said that the matter was
not so drastic as to declare the amendment invalid & ask
for ratification by the State legislatures & therefore only
issued a warning to the Central government.

The Court suo motu brought up the issue of Article 13 (2) & said
that Article 13 (2) did not prevail over Article 368 & that the
Fundamental Rights could be modified.

However, Hidayatullah, J. dissented saying that he refused


to accept that the Fundamental Rights were anything less
than fundamental and cannot be a plaything in the hand of
majority.

Justice Mudholkar too dissented from the majority by


saying that there are certain basic features of the
Constitution which cannot be changed.

It was held by a majority judgment of 3-2 that the amendment was valid.

I. C. Golak Nath v State of Punjab AIR 1967 SC 1643


Facts

Due to the close decision in the case of Sajjan Singh v State of


Rajasthan, and the doubts raised by Justice Hidayatullah and
Mudholkar, the constitutional validity of the 17th amendment was
challenged again by the petitioners.

This time the Court said that the Fundamental Rights could not be
abridged but could only be added to & that if it was absolutely necessarily
to abridge the fundamental rights, then a special assembly would have to
be constituted in order to do so.
It was held by a majority judgment of 6-5 that the amendment was invalid.

54

However, the Court merely said that similar amendments in the


future would be invalid but did not cancel the amendment
retrospectively because it would create practical difficulties.

Therefore, this judgment effectively only asked the Parliament to


exercise restraint.

Kesavananda Bharati v State of Kerala AIR 1973 SC 1461


Facts

Indira Gandhi went to the polls stating that she would bring about
certain amendments if she was elected with the requisite majority
& was so elected.

The 24th amendment amended Article 13 & Article 368 in response


to the objections raised by Subba Rao, J. in I. C. Golak Nath v
State of Punjab.

The 25th amendment removed the Right to Property & amended


Article 31 (c) to say that any law passed in pursuance of the
Directive Principles could amend the Fundamental Rights & such a
law could not be challenged in Court on the ground that the law
was not what it purported to be.

Both the amendments were challenged by the petitioners.

The 24th amendment was unanimously upheld, overruling the decision in


I. C. Golak Nath v State of Punjab.

The SC said that the Parliament could amend even the core
provisions of the Constitution but not the core of the core
provisions.

The first part of the 25th amendment, i.e. the removal of the Right to
Property, was upheld.
The second part of the 25th amendment, i.e. the removal of judicial review,
was held to be invalid as judicial review was a basic feature of the
Constitution by a majority judgment of 7-6. (However, some are of the

55
opinion that it was actually a 6.5-6.5 judgment because Khanna, J. agreed
with both sides on various issues.)
The justifications for the majority judgment were as follows.

Amendments cannot change the identity of the Constitution.

Amendments cannot change the spirit or basic features of the


Constitution.

However, the term basic features was not clearly explained.

Indira Gandhi v Raj Narain


Facts

The 39th amendment introduced Article 329A which prevented the


Courts from deciding election issues.

The amendment had no moral backing.

The misuse of the amendment powers of the Parliament was


visibly demonstrated.

It was unanimously held that the amendment was invalid.


The importance lies in the fact that the judiciary put away their differences
& came together in order to protect the Constitution.

Even though Babar was the first Mughal emperor, it was Akbar
who established the Mughal empire. Similarly, even though the
basic feature doctrine was formulated in Kesavananda Bharati v
State of Kerala, it was Indira Gandhi v Raj Narain that established
it.

Minerva Mills v Union of India


Facts

The 42nd amendment inserted a few clauses in Article 368.


The amendment was challenged by the petitioners.
It was held that the amendment was invalid.
So far, it is observed that only those amendments that have interfered with judicial
review, independence of the judiciary & the powers of the judiciary have been
invalidated.

Das könnte Ihnen auch gefallen