CONSTITUTIONAL L A W - I I

(EXCLUDING POLITICAL A N D
CIVIL RIGHTS)
D. K. Singh'1
Revised by Dr. A. K. Avasthv'*
The present Constitution was adopted by the Constituent Assembly on
26 November 1949,1 in the name of the people of India. Ours is the longest
Constitution of the world. It has 24 parts, 12 Schedules and 445 articles.2 It
came into force on 26 January 1950. It does not merely lay down the basic
principles for the governance of the country, but also provides for matters
such as official language, public service, elections and local selfgovernments, which do not generally form part of other Constitutions.
Fundamental rights, directive principles and fundamental duties3 have been
meticulously drafted drawing a delicate balance between individual liberty,
social interests and constitutional ethos. It makes detailed provisions for (i)
the organisation and structure of the Union and the State executive, (ii) the
composition and functions of Parliament, State Legislatures and local bodies
such as Panchayats and Municipalities; (iii) the legislative, administrative and
financial relations between the Union and the States, (iv) the union judiciary
and the State High Courts, (v) relationship between various organs of
government of the U n i o n and the States, (vi) Inter-state trade and
commerce; (vii) services under the Union and the States, (viii) Emergency
provisions (ix) special provisions relating to certain classes and (x) power
and procedure for amendment of the Constitution.
The framers of the Constitution were faced with many initial difficulties
of a new born state like India which became independent after a long
colonial rule, and in particular, had to face distrust and suspicion among
various communities after the communal riots which took place at the time
of partition of undivided India into India and Pakistan. The size of the
c o u n t r y , vast p o p u l a t i o n , disparity and prejudices among various
communities have also been responsible for the bulk of the Constitution.
*
**
1.
2.

Formerly Dean, Faculty of Law, University of Delhi.

Formerly Professor, Indian Law Institute, New Delhi.
November 26 is observed as the Law Day.
Originally the Constitution had 395 articles, 8 Schedules and 22 parts. Several
additions have been made through various amendments.
3. Fundamental duties were added by the 42nd Constitutional Amendment Act.

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57

For example, a part of the Constitution is devoted to special provisions

relating t o scheduled castes, scheduled tribes and o t h e r b a c k w a r d
communities besides other provisions elsewhere safeguarding their interests
w h e r e v e r it was t h o u g h t to be a p p r o p r i a t e . Some e x t r a - o r d i n a r y
developments 4 also contributed to lengthening of this basic document. 5
Being an infant democracy, the framers of the Constitutions were keen
to preserve the democratic values and aspirations of the people, and,
therefore, incorporated in the Constitution all that was thought necessary to
prevent the spirit of the Constitution from being perverted. An effort was
made to foresee the possible constitutional controversies, and care was
taken to ensure the smooth working of the constitutional machinery. The
Constitution, therefore, became a detailed and comprehensive document
thereby reducing considerably the chances of getting the constitutional
image distorted or becoming subject to abrupt changes in its essential
features through either legislative measures or judicial interpretation.
Sources
The basic structure of the Constitution is similar to the one envisaged in the
Government of India Act, 1935 which provided for the governmental
framework in India before 1947. The Act of 1935 was devised to meet the
requirements of British government with a view to transferring limited
power to Indians while continuing its hold on India; it did not meet the
aspirations and needs of the people. However, for the sake of continuity of
the political structure which was in operation, the Act of 1935 was largely
adopted with necessary modifications. The framers of the Constitution also
drew upon the mature experience of other democratic countries. Part on
Fundamental Rights 6 partly derives its inspiration from the Bill of Rights,
enshrined in the American Constitution and so also Part IV on directive
principles of state Policy 7 from the Irish Constitution. The concept of
fundamental duties has been borrowed from socialist countries. The
principles of cabinet government and the relations between the executive
and legislature have been largely drawn upon from the British experience.
4.

E.g., IX Schedule was added to make land laws and agrarian reforms legislation
immune from judicial review. Similarly, X Schedule has been added to curb the
menace of detection.
5. Constitution is not to be construed as a mere law, but as the machinery by which
laws are made. A constitution is a living and organic thing which, of all instruments
has the greatest claim to be construed broadly and liberally. Goodyear India v. State of
Haryana AIR 1990 SC 781.
6. The Supreme Court has enlarged the ambit and scope of these rights by its various
judgments. The right to free and compulsory education of children between 6 to 14
years has been added by 86,h Constitutional Amendment Act.
7. Several changes including additions have been made in this part through various
amendments.

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INDIAN LEGAL SYSTEM

The structure of the Union government is based to a great extent on the

models of the Canadian and Australian Constitutions. The Union - State
relations find a similarity in the Act of 1935 and also the Canadian
Constitution, though the expanded concurrent list in the Seventh Schedule
has a model in the Australian Constitution. Part XIII dealing with trade,
commerce and intercourse, again appears to derive inspiration from the
Australian Constitution. Some indigenous institutions like 'Pancbayat* have
been specifically encouraged and ideals such as promotion of international
peace and security 9 have been woven into the fabric of the Constitution.
However, certain fundamental departures have been made from the
prevalent theories and practices so as to make suitable adjustments keeping
in view the Indian conditions, such as, coping with emergency 10 during
peace and war, superintendence, direction and control of elections 11 etc.
Services under Union and State Public Service Commissions are also
incorporated into the Indian constitutional structure. 12
Historical and geographical factors have been responsible for the
building of the Constitution. The framers of the Constitution were keen to
preserve the democratic values to which Indians had attached the highest
importance in their struggle for freedom. But they were also keen to make
provisions considered to be necessary in the light of the social and economic
backwardness of certain sections of society. They had also before them the
precedent of the Government of India Act, 1935 whose detailed provisions
were found suitable for adoption in the interests of continuity and certainty.
Some precautions for the constitutional image being distorted or being
impaired in its essential features were also required. All this has contributed
to the length of the Indian Constitution.
The preamble
The preamble to the Constitution declares India t o be a sovereign,
socialist,13 secular,14 democratic republic. 15 India has, therefore, adopted a
8. Par: IX (Panchayats) and Part IX-A (The Municipalities) were added by 73rd and 74th
Amendment Acts, 1992 respectively.
9. Article 51.
10. Part XVIII: Emergency provision.
11. Part XV: Elections.
12. Part XIV: Services under the Union and the States.
13. Democratic socialism aims to end poverty, ignorance, disease and inequality of
opportunity. This socialistic concept ought to be implemented in the true spirit of
the Constitution. G.B Pant University ofAgriculture and Technology v. State of UP AIR
2000 SC 2695.
14. Secularism is a basic feature of the Constitution. See S.R. Bommai v. Union of India
AIR 1994 SC 1918.
15. The Constitution (Forty-Second Amendment) Act, 1976 added the words 'Socialist'
and 'Secular' to the description of the republic in the preamble.

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system of government in which the government is directly responsible to

the people, and the head of the State holds an elected office. The people of
India hold the ultimate power and exercise authority through their elected
representatives who in their turn are accountable to the people. The
Constitution thus establishes a democracy for over one hundred and ten
million people and enshrines democratic values which the people can
cherish following the path of the rule of law. The Constitution confers on all
adults 16 citizenship, the right to vote and choose their representatives and
removes all discrimination based on religion, caste, race or sex.17
The democratic Republic of India is declared to be a sovereign state. N o
attribute of its external sovereignty is outside the constitutional provision,
and the sovereign power is free from external control. As an essential
attribute of sovereignty India can acquire foreign territory and, if necessary,
cede a part of its territory in favour of a foreign state, subject, however, to
constitutional requirements. 18 Internal sovereignty rests with the Union and
the States as delineated in the constitutional provisions. H o w e v e r ,
sovereignty vests in the people as reflected by the words, "we, the people of
India" in the preamble to the Constitution. 19
The preamble spells out the aims and aspirations 20 of the people of
India, that is, to secure to all citizens social, economic and political justice;
liberty of thought, expression, belief, faith and worship; equality of status
and opportunity; and to promote among them all fraternity, assuring dignity
of the individual and the unity of the nation. The Constitution thus
recognizes the basic human values and declares at the very out-set the
formation of a forward-looking state which is wedded to the promotion of
the good and well-being of the people without committing itself to any
particular philosophy or social-order within the framework envisaged in it.
' T h e u n i t y of the n a t i o n ' as a declaration in the p r e a m b l e and its
manifestation throughout the constitutional provisions providing for a
strong central government reflect a resolution to hold together the nation
with diverse linguistic and ethnical entities. The preamble 21 is thus a key to
16. The voting age was reduced from 21 to 18 years by the Constitution (Sixty-First
Amendment) Act, 1988.
17. Article 326.
18. In re Beruban AIR 1960 SC 845, 856 and Maganbhai hwarbhai Patel v. Union ofIndia
(1970) 3 SCC 400
19. State ofRajasthan v. Union ofIndia AIR 1977 SC 1361.
20. The objective specified in the Preamble contain the basic structure of our
Constitution, which cannot be amended in exercise of the power under Article 368
of the Constitution. Keshavanand Bharti v. State ofKerala AIR 1973 SC 1461; Indira
Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 and Minerva Mills v. Union ofIndia AIR
1980 SC 1789.
21. The preamble is a part of the Constitution. See Keshvananda Bharti v. The State ofKerak
(1973) 4 SCC 225.

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INDIAN LEGAL SYSTEM

the understanding of the constitutional provisions.

A secular state
India can rightly be described as the world's most heterogeneous society. It
is a country with a rich heritage. Several races have converged in this
subcontinent. They brought with them their own cultures, languages,
religions and customs. These diversities threw up their own problems but
the early leadership showed wisdom and sagacity in tackling them by
preaching the philosophy of accommodation and tolerance. This is the
message which saints and sufies spread in olden days and which Mahatma
Gandhi and other leaders of modern times advocated to maintain national
unity and integrity. The British policy of divide and rule, aggravated by
separate electorates based on religion, had added a new dimensions of
mixing religion with polities which had to be countered and which could be
countered only if the people realized the need for national unity and
integrity. It was with the weapons of secularism 22 and non-violence that
Mahatma Gandhi fought the battle for independence against the mighty
colonial rulers.
The Constitution stands for a secular State. The state has no official
religion. It is opposed to any kind of communal policy. Notwithstanding the
fact that the words 'socialist' and 'secular' were added in the Preamble of the
Constitution in 1976 by the 42 nd amendment, the concept of secularism was
very much embedded in our constitutional philosophy. The term 'secular'
has advisedly not been defined presumably because it is a very elastic term
not capable of precise definition and perhaps best left undefined. By this
amendment what was implicit was made explicit. However, this concept
pervades its provisions giving full opportunity to all persons to profess,
practice and propagate any religion of their choice.
The Constitution not only guarantees a person's freedom of religion and
conscience but also ensures freedom for one who has no religion, and it
scrupulously restrains the state from making any discrimination on grounds
of religion. Nevertheless, a person's religion will not come in the way of the
state from regulating an individual's behaviour in relation to another's or
dealing with socio-economic reforms, or promoting the basal concepts
delineated in the preamble. A single citizenship is assured to all irrespective
of their religion, caste or colour. Electoral rolls are prepared in disregard of
religious consideration.

22. Secularism (whatever it may mean) is a basic feature of the Constitution. See S.R.
Bommai v. Union ofIndia AIR 1994 SC 1918.

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Fundamental law
The Constitution operates as a fundamental law. The governmental organs
owe their origin, derive their authority and discharge their responsibilities
within the framework of the Constitution. The Union Parliament and the
State legislature are not sovereign, like the British parhament. The vahdity of
a law, whether Union or State, is judged by reference to their respective
jurisdictions defined in the Constitution, and the judiciary is empowered to
declare a law unconstitutional if it is found to have contravened any
provision of the Constitution. The Constitution thus stands as a supreme
law of the land and the function of the judiciary is to act as a watchdog to
prevent any contravention of its provisions. 23 However, judicial review in
India does not assume the character of policy making as is the case in the
United States of America. Rather it makes a balanced compromise between
the judicial supremacy under the American Constitution and the sovereignty
of British Parliament in the British Constitution.
The Indian Union
The Constitution describes India as a Union of States,24 and it implies the
indestructible nature of its unity. The word 'Union' indicates that it was not
the outcome of any agreement amongst the existing constituent units with
the result that no unit constituting the Indian Union can secede from it. 25
The country is divided into several units, 2 6 known as States or Union
Territories 2 7 and the Constitution, like the Canadian Constitution, lays
down not only the structure of the Union Government but also of the State
Governments. It functions as an integral whole under the Constitution, its
people living under a single imperium derived from a single sources.

23. The Supreme Court of India has evolved the Theory of Basic Structure whereby
limitations have been put on Parliament's constituent power to amend the
Constitution of India. See Keshwanand Bharti v. State ofKerala AIR 1973 SC 1461;
Indira Nehru Gandhi v. Rajnarain AIR 1975 SC 2299; Minerva Mills Ltd. v. Union ofIndia
AIR 1986 SC 179; Sanjeev Cake Mfg. Co. v. Bharat Coking Coal Ltd. AIR 1983 SC 239;
L. Chandra Kumar v. Union ofIndia AIR 1997 SC 1125 and T.N. Rangarajan v. Govt. of
Tamil Nadu 2003 (6) SCALE 84.
24. Article 1 of the Constitution states: India, that is Bharat, shall be Union of States. At
present India is the Union of 28 States and 7 Union Territories. Their names are
specified in Schedule 1 of the Constitution.
25. VII Constitution Assembly Debates, p. 43.
26. The territory of Sikkim was admitted into the Indian Union by an act of voluntary
cession by the general consent of its inhabitants expressed through a referendum.
The Constitution (Thirty Sixth) Amendment Act, 1975 was passed to admit Sikkim
into the Union of India. See R.C. Pondyal v. Union ofIndia 1994 Supp. (1) SCC 324.

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INDIAN LEGAL SYSTEM

Federal structure
The Indian Union under the Constitution is neither a league of states like a
confederation nor are the states administrative units of the centre. The
Indian Constitution is basically federal in form like the one in the United
States of America and is marked by the traditional characteristics of a federal
system, namely, supremacy of the Constitution, division of power between
the central and the regional governments, the existence of an independent
judiciary and a comparatively rigid procedure for the amendment of the
Constitution. It establishes a dual policy with clearly defined spheres of
authority between the Union and the States each endowed with sovereign28
powers to be exercised in fields assigned to them respectively. There is an
independent judiciary to determine issues involving constitutional
interpretation and to resolve disputes between the Union and the States or
between one State and the another. An amendment in the respective
jurisdiction of the Union and the States can be brought about by invoking a
special procedure in Parliament and ratification by majority of the states.29
However, there are marked differences between the American federation
and the Indian federation. First, in America, there is duel citizenship,
whereas in India, there is a dual polity with one citizenship; Indian citizens,
wherever they reside, are equal in the eye of the law. Second, the states in
America have a right to make their own Constitutions whereas no such
power is given to the states in India.30 But the Indian Constitution is heavily
biased t o w a r d s the U n i o n with unitary modifications w h i c h were
necessitated by historical reasons and political expediency. The centralising
tendency may be found in several provisions, e.g., the adoption of a long
concurrent list, 31 the power of Parliament to reorganise the political
structure of the country, 32 supremacy of Parliament over state legislatures if
there is a direct conflict between their respective jurisdictions, 33 the vesting
of residuary power in Parliament,34 power of Governors to reserve a Bill for
the consideration of the President 35 of the republic. Further, the Union is

27. The first Schedule of the Constitution enumerates the names and territories
comprising of 28 states and 7 Union territories.
28. The word 'sovereign' means that the State has power to legislate on any subject in
conformity with constitutional limitations. Synthetics & Chemicals Ltd. v. State ofU.P.
(1990) 1 SCC 109.
29. Article 368.
30. The State of Jammu & Kashmir has its own Constitution framed under Article 370
of the Constitution of India.
31. List in the Seventh Schedule read with Article 254.
32. Anide 3.
33. Articles 246, 247 read with the Seventh Schedule.
34. Article 248 and 97th entry of List I of Seventh Schedule.
35. Article 200 and 97th entry of List I of Seventh Schedule.

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empowered to supersede the authority of states in certain circumstances,

such as, emergency 36 or on grounds of national interest. 37
In a federation the central and the regional governments enjoy equal
status and function independently within their respective jurisdictions. 38
However, the pattern of distribution of powers in each federation is
determined by the peculiar conditions under which it came into existence. In
the Indian context, whatever may have been the variations from the familiar
patterns, there is a clear distribution of legislative powers, and also of
executive powers, which is co-extensive with their legislative competence,
between the Union and the states. The framers of the Constitution followed
in substance the pattern of distribution of powers that existed in the
Government of India Act of 1935 which closely resembled the Canadian
pattern and provided for three lists of subjects, central, provincial and
concurrent, leaving the residue for the Governor - General to be assigned in
his discretion either to the centre or to the provinces. However, some
changes in the pattern of the Act of 1935 have been made to meet the social
and economic needs of a modern state and to provide for an effective
constitutional machinery for the preservation of the unity of India
counteracting fissiparous and disintegrating tendencies generated by local
and parochial interests. Though the Constitution remains basically federal,
the functioning of the state government has been made in many spheres
subordinate to the Union Government. For example, the governor of a state
is appointed by the President and hold office during the pleasure of the
President.39 The Governor is likely to act as an agent to the President rather
than as a state functionary in a matter in which he is free to exercise his
discretion in disregard of the advice of the state government or without its
consultation. For instance (1) under Article 200, the Governor is given
discretion to reserve a Bill, which has been passed by the legislature of a
state, for the consideration of the President, who is not bound to give assent
to that Bill; (2) under Article 365, if the government of a state fails to
function in accordance with the provisions of the Constitution, or if the
government of a State fails to carry out the directions given in the exercise
of the executive power of the Union, on receipt of a report from the
Governor or otherwise, the President, whose assessment of the situation is
36. Article 250 read with Articles 352-360.
37. Articles 249, 251, 252 and 253.
38. A division bench of Madras High Court in M. Karunanidhi v. Union ofIndia AIR 1977
Mad. 192 has held "...there may be a federation of independent states as it is in the
case of the USA. As the name itself denotes, it is a union of states, either by treaty
or by legislation of the conserved states. In those cases, the federating units gave
certain powers to the federal government and retained some. To apply the meaning
to the word 'federation' or 'autonomy' used in the context of the American
Constitution, to our Constitution will be totally misleading".
39. Articles 155 and 156.

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INDIAN LEGAL SYSTEM

not justiciable, can assume the governmental functions of that state and run
the administration through the Governor of that State, (3) under Article
258-A, the Governor is empowered to entrust to the Union government
functions in relation to any matter relating to the state executive and this can
be done without the knowledge of the state government. Under Article 3,
Parliament is empowered to restructure the political map of the country, and
in this process an existing state may be completely wiped out even against its
wishes. One may get the impression that the federal principle has been
diluted considerably in India. But that appears to be the trend even in the
traditional federation such as in America, Australia, and Canada which
initially commenced with a weak centre and strong states and later turned
out to be as highly centralised federations either through the process of
judicial interpretation or through conventions or both. The Indian
federation has simply fallen into that pattern with the difference that its
Constitution is elaborate, comprehensive and exhaustive providing expressly
much of what is found in judicial discussion or in conventions in other
federations. As a matter of fact, the Indian trend of constitutionalism has
become a model for many new states in Asia and Africa providing a frame
work for drawing up their Constitutions.
In a sense, therefore, the Indian Union is federal. But, the extent of
federalism in it is largely watered down by the needs of progress and
development of a country which has to be nationally integrated, politically
and economically coordinated and socially, intellectually and spiritually
uphghted. In such a system, the states cannot stand in the way of legitimate
and comprehensively planned development of the country in the manner
directed by the central government.
The territory of India
Under the Constitution the territory of India40 comprises (i) the territory of
the states, (ii) the union territory and (iii) such other territories as may be
acquired.41 Having the attributes of a sovereign state, India can acquire new
territories or cede a part of the territory of India. 42 Acquisition may take
place by methods recognized in international law 43 such as conquest,
occupation etc. Acquisition of a new territory is a sovereign function and no
parliamentary legislation is necessary. But its legal or formal assimilation is
brought about by a parliamentary law by admitting it into the Union or

40. The expression "territory of India", wherever used, means the territory which, for
the time being falls with in Article 1(3). Amar Singh v. State ofRajasthan AIR 1955 SC
504 and Mastan Sahib v. Chief Commr. Pondichery AIR 1962 SC 797.
41. Article 1 (3) (c).
42. In re Indo-Pakistan Agreement AIR 1960 SC 845.
43. JoseDe Costa v. Bas Cora AIR 1975 SC 1843.

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establishing it as a new state on such terms and conditions as Parliament

thinks fit.44 This could also be brought about by merging it into an existing
state or Union territory. 45 Cessation of a part of the territory of India to a
foreign state can be made by invoking the procedure required for the
amendment of the Constitution. 46
Power to diminish the area of a State does not entitle Parliament to
cede a part of the territory of India.47 However, if there is a dispute relating
to adjustment of boundaries between India and a foreign State, no
a m e n d m e n t of the relevant provisions of the C o n s t i t u t i o n , or a
Parliamentary law, is necessary to implement an agreement reached between
the parties or an award given by a tribunal appointed with the consent of the
parties, for this purpose. 48 This could validly be achieved by an executive
act.
Parliament is empowered to re-organise the boundaries of the states or
diminish the area of any state including wiping a state completely out of the
map of India. 49 For this purpose no Bill may be introduced in Parliament
except on the recommendation of the President who has already ascertained
the views of the legislature of the state on the proposal contained in the Bill
affecting the area of that state. 5 0 However, the President is under no
obligation to accept the views expressed by the state legislature. If the views
of the state legislature are not received within the time stipulated by the
President, the state legislature may be taken as having waived its privilege. It
is not necessary to make a fresh reference to ascertain the views of the State
legislature if an amendment to the proposal contained in the Bill is proposed
and accepted in accordance with the procedure of Parliament. 51
44. By article 2, Goa-Daman-Diu, and Sikkim have been made part of India through
annexation. Under Article 2, Parliament has power to admit into the Union or
establish new states on such terms and conditions as it thinks fit. The terms and
conditions must be consistent with the basic structure of the Constitution. The
admission of Sikkim by Constitution (Thirty-Sixth) Amendment Act, 1975 was
unsuccessfully challenged in R.C. Poudyal v. Union ofIndia AIR 1993 SC 1804.
45. Article 3.
46. After receipt of the advisory opinion of the Supreme Court in In re Indo-Pakistan
Agreement AIR 1960 SC 845; the Parliament passed the Constitution (Ninth
Amendment) Act, 1960 to give effect to the Indo-Pak Agreement. The apex court
upheld its constitutionality. See Ramkishore Sen v. Union ofIndia AIR 1966 SC 644.
47. Transfer of Tin Bigha area to Bangla Desh on the basis of a perpetual lease did not
require a constitutional amendment since the impugned action did not involve
cessation of Indian territory. See Union ofIndia v. Sukumar Sengupta AIR 1990 SC
1692.
48. In re Indo-Pakistan Agreement AIR 1960 SC 845 and Maganbbai v. Union ofIndia AIR
1969 SC 583.
49. Article 3.
50. Proviso to article 3.
51. Babuhl Pratev. Sute ofBombay AIR 1960 SC 51.

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INDIAN LEGAL SYSTEM

Since the formation of the Indian union, the political structure of the
country has been re-organised from time to time rationalising the states into
a coherent pattern after taking into account the growing importance of the
regional languages and also financial, economic and administrative
conveniences. 52 A law for this purpose is so far as it seeks to amend first53
and fourth 5 4 schedules of the Constitution, in order to give effect to its
provisions or to make supplemental, incidental or consequential provisions
shall be deemed to be an amendment of the Constitution for all purposes.
The Union executive
The Indian C o n s t i t u t i o n provides for a p a r l i a m e n t a r y form 5 5 of
government. The executive power of the Union vests in the President and
shall be exercised by him either directly or through officers subordinate to
him in accordance with the Constitution, 56 the officer subordinate to him
will include a minister. 57 The President is also invested with the supreme
command of the defence forces, but this power is subject to laws made by
the Parliament. 58 Besides there are several other provisions which mention
specific functions of the President. 59 The President in the exercise of his
functions acts on the advice of the Council of Ministers which is headed by
the Prime Minister.60 The Prime Minister is appointed by the President and
the members of the Council of Ministers are appointed by him on the advice
of the Prime Minister. 61 All executive actions are expressed to be taken in

52. See, The States Reorganization Act, 1956; The Bihar and W.B (Transfer of Territory)
Act, 1956; The Andhra Pradesh Act, 1953; The Andhra Pradesh and Madras
(Alteration of Boundaries) Act, 1959; The Bombay Reorganisation Act 1960; The
State of Nagaland Act, 1962; the Punjab Reorganization Act, 1966; The State of
Himachal Pradesh Act, 1970; The N.E. Areas (Re-organization) Act, 1976, The State
of Mizoram Act, 1986; The State of Arunachal Pradesh ACT, 1986; The Goa-Daman
and Diu Re-organization Act, 1987; The Bihar Re-organization Act, 2000; The
Madhya Pradesh Re-organization Act, 2000 and the Uttar Pradesh Re-organization
Act, 2000.
53. It specifies the States and Union territories.
54. It specifies the allocation of seats to a State and Union territory in the Council of
States.
55. Parliamentary form of government has been held to be one of the basic structures of
the Constitution. See Keshavananda Bharti v. State ofKerala AIR 1973 SC 1461.
56. Article 53 (1).
57. Emperor v. Shibnath AIR 1945 PC 163.
58. Article 53 (2).
59. Articles 72, 77, 155, 124(2), 217, 316, 76(1), 324(2), 148, 324, 280, 339(1), 340,
344(1), 352-360, 123, 242, 244, 111, 85(2), 86,87,112, 117, 200, 286(3), 288 (2), 31(3)
and 304 (Proviso).
60. Ankle 74(1).
61. Article 75(1).

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67

the name of the President, 62 though the council of Minister wields the real
and effective executive power. 63 Even where the Constitution requires the
satisfaction of the President for the exercise by him of any power or
function, the satisfaction required is not the personal satisfaction of the
President but the satisfaction of the President in the constitutional sense.
This is substantiated by other provisions of the Constitution. 64 First, the
C o u n c i l of Minister is collectively responsible, 6 5 and is, therefore,
answerable to parliament for all its functions, decisions and actions; whereas
the President is answerable to none for the acts of the government. It
appears to be anomalous to make the Council of Ministers answerable for
executive acts of the U n i o n unless the Council of Ministers is made
responsible to take decisions in matters of policy and administration of the
Union. Secondly, this is indicative from the fact that the Prime Minister has
to communicate to the President all decisions of the Council of Ministers
relating to the administration of the affairs of the Union and proposals for
legislation,66 and if the President so requires, it submit for consideration of
the Council of Ministers any matter on which a decision has been taken by
a minister but which has not been considered by the council. 67 Thirdly, a
comparison of the position of the President with that of the Governor of a
state who, in some matters under the Constitution, is required to exercise
his function in his discretion, and is therefore, constitutionally competent to
reject the advice of the Council of Ministers, leads to a conclusion that the
President has no option but to accept the advice of the Council of Ministers
and act as a nominal or constitutional head of the government. Fourthly, if
the President in any matter acts against the advice of the Council of
62. Article 77.
63. Executive power is the residue of functions of government, which are not legislative
or judicial. See Madhav Rao v. Union ofIndia AIR 1971 SC 530.
64. Sbamsher Singh v. State ofPunjab (1974) 2 SCC 83. This is now expressly made clear by
Clause 13 of the 42nd Amendment. It is provided that the President shall act in
accordance with the advice of his council of ministers. The Forty-fourth
Amendment, however, has equipped the President to once refer back any such
advice for reconsideration, either generally or otherwise but he shall be obliged to act
according to the advice tendered after such reconsideration.
65. The object of collective responsibility is to make the whole body of persons holding
ministerial office collectively, or, if one may so put it, "vicariously responsible for
such acts of the others as are referable to their collective violation so that, even if an
individual may not be personally responsible for it, yet, he will be deemed to share
the responsibility with those who may have actually committed some wrong". State
ofKamataka v. Union ofIndia AIR 1978 SC 68.
66. Article 78 (a). Resolutions or other deliberations at meetings of cabinet and advice
finally tendered in pursuance of such deliberations are privileged from disclosure in
court. See State ofPunjab v. Sodbi Sukhdeo AIR 1961 SC 493; S. P. Gupta v. Union of
India AIR 1982 SC 149 and Kartar Singh v. State ofPunjab (1994) 3 SCC 569.
67. Article 78 (c).

68

INDIAN LEGAL SYSTEM

Minister, who has the support of the House of the People, chooses to
resign, it may not be possible for the President to find an alternative Council
of Ministers; in other words, the President cannot dispense with the Council
of Ministers which has the support of the House of the People. Fifthly, any
conflict between the President and the Council of Ministers which has the
support of the House of People, may develop into a conflict between the
President and House of the People which in its turn controls the executive
primarily through its authority over the purse, that is, power to levy and
collect taxes. In that event, the President will find it almost impossible to
run the government machinery within the constitutional framework. It is
true that any advice tendered to the President and its rejection by him may
not be questioned in a court of law, 68 any amount incurred by him in
running the governmental machinery without proper authorisation by a
parliamentary law would be unconstitutional, and the President may even be
impeached for violation of the Constitution. 6 9 In the words of B. R.
Ambedkar, Chairman of the Drafting Committee of the Constitution:
H e (The President) is the head of the state but not of the
Executive. He represents the Nation but does not rule the
n a t i o n . He is the symbol of the n a t i o n . His place in the
administration is that of a ceremonial device on a seal by which
the nation's decisions are made known. 70
The structure of the Union executive closely resembles the British
model which provides a constitutional head in the British monarch who in
turn acts on the advice of the cabinet. In England, the relationship between
the monarch, the cabinet and the Parliament is governed by conventions. In
India, however, some of the conventions in this context have been written
into the Constitution 71 and other operates as unwritten practices. 72 This
system differs from that of the United States of America where the
President is the head of the executive. Beyond the identity of the names of
the office of 'President' and a fixed tenure for this office there is nothing in
common between the forms of government prevalent in India and in the
United States of America. F u r t h e r , by introducing the principle of
ministerial responsibility the Constitution of India has departed from the
theory of separation of powers which underlines the American Constitution.
The President of India holds office for a term of five years from the
date on which he enters upon his office.73 He is indirectly elected by an
68.
69.
70.
71.
72.

Article 74 (2).
Ankle 61.
VII Constituent Assembly Debates, p. 32.
E.g., Articles 74 and 75.
Shamsher Singh v. State ofPunjab AIR 1974 SC 212; U. N. Rao v. Indira Ghandhi (1970)
2 SCC 63 and R.C. Cooper v. Union ofIndia (1970) 1 SCC 248.
73. Article 56 (1).

CONSTITUTIONAL LAW-

69

electoral college consisting of the elected members of both the Houses of

Parliament and the legislative assemblies of the states. The election is held in
accordance with the system of proportional representation by means of a
single transferable vote by secret ballot.74 Votes are apportioned to them on
the principle that so far as practicable there is uniformity in the scale of
representation of different states at the election.75 In view of the mandatory
time limit in article 62 for holding the election of President in case of a
vacancy, the election may be completed even though election may not have
taken place, for unforeseen reasons, in some of the State Legislative
Assemblies which constitute the electoral college.76 All doubts and disputes
relating to the election of the President are to be decided by the Supreme
C o u r t whose decision is final but the existence of any vacancy in the
electoral college electing him shall be of no consequence. 77 If any vacancy
occurs in the office of the President by reason of his death, resignation or
removal or otherwise, the Vice-President will act as President until a new
President is elected. 7 8 Elaborate procedure for impeachment of the
President has been provided in article 61 of the Constitution.
The President has hardly any discretion in the matter of appointment of
the Prime Minister, who should be able to enjoy the confidence of the
majority of the members of the House of the People, be it in the form of a
single party or a coalition of two or more parties. Normally, the person to be
appointed Prime Minister is the leader of the majority party in the House of
the People. However, if no single party is able to command the support of
the House of the People, the President may explore the possibilities of
finding a person who could form a coalition government with the help of
two or more parties and command the support of the House of the People.
The British convention that the Prime Minister should be member of either
house, preferably House of Common is not our constitutional scheme since
our Constitution clearly permits a non-member to be appointed as Prime
Minister for a short duration of six months. That is why in such cases when
there is any doubt in the mind of the President, he asks the person
appointed to seek a vote of confidence of the house of people within a few
days of his appointment. 7 9 This perhaps is the only occasion when the
President may exercise his personal discretion in the selection of Prime
Minister under the Constitution.

74.
75.
76.
77.
78.
79.

Article 55. See Charan Lai Sahu v. K.R. Narayanan AIR 1998 SC 1506.
Article 55 (2).
In re Presidential Election AIR 1974 SC 1682.
Article 71 (1). For a general discussion see In re Presidential Poll (1974) 2 SCC 33.
Article 65 (1).
S.P. Anand v. H.D. Deve Gowda AIR 1997 SCW 18.

70

INDIAN LEGAL SYSTEM

The rule of collective responsibility of the Council of Ministers to the

House of the People is expressly provided in the Constitution. 8 0 The
Council of Ministers normally accepts responsibility for all major policy
decisions taken by its members and a motion of censure passed against any
one of them may become the censure of the Council of Ministers. All
members of the Council of Ministers stand or fall together and must be in
agreement with all the decision taken by the government. It is, therefore,
necessary that no person should be appointed a minister except on the
advice of the Prime Minister, 8 1 and no person should be retained as a
minister who is in disagreement with the policies of the government. It is,
therefore, implied in the provision that a minister holds office during the
pleasure of the President but the President in the matter of appointment and
removal acts on the advice of the Prime Minister. 82
The executive power of the Union extends to the matters with respect
to which Parliament has power to make laws and also to the exercise of such
rights, authority and jurisdiction as are exercisable by the Government of
India by virtue of any treaty or agreement.83 Though the executive has no
authority to act against the provisions of a law, it does not mean that in
order to enable the executive to function there must be a law in existence
and that the powers of the executive are limited to the carrying out of these
laws. 84 Executive function comprises both determination of policy and
carrying it into execution, and broadly embraces the direction of general
policy including initiation of legislation, maintenance of order, promotion of
social and economic welfare, and direction of foreign policy.
Parliament
The Constitution provides for Parliament for the Union which consists of
the President and two Houses known as the Council of States (Rajya Sabba)
and the House of the People (Lok Sabha).iS The President does not actively
participate in the deliberations of the two Houses. Yet he is an essential
constituent of Parliament and discharges certain formal functionshe

80.
81.
82.
83.

Article 75 (2).
Article 75 (1).
Article 75 (1) and (2).
Article 73. Treaty making power - The Court relying on the decision of the Supreme
Court in Maganbhai hhwarbhai Patel v. UOI AIR 1969 SC 783 agreed with the
respondent that executive power of entering into any treaty or agreement with
foreign country is not limited to subjects covered under the Union list but can also
extend to state list. See PB Samant v. UOI AIR 1994 Bom. 323.
84. Ramjawaya v. State ofPunjab AIR 1955 SC 549 and Jayantilal Amntlal v. F. N. Rana
AIR 1964 SC 648.
85. Article 79.

CONSTITUTIONAL LAW-

71

summons the Houses, 86 prorogues them 87 and dissolves the House of the
People. 88 H e may give his assent to a Bill or withhold assent there from
after it has been passed by both the Houses and presented to him for his
assent; 89 a Bill takes effect only after the President has given his assent.
Both Houses sit separately and their functions differ in some respects,
particularly in matters of taxation and expenditure of public money. 90 The
House of People is elected directly by the people, unlike the Council of
States which is indirectly elected, and reflects the popular will. It, therefore,
plays a d o m i n a n t role by having a control over the policies of the
government besides having a final say in financial matters. 91 However, the
Council of States has its own usefulness in providing another forum for
giving a calm and mature consideration to government proposals and
programmes. 92
The Council of States is a continuing body, one-third of its members
retiring every two years. 93 Its members are elected by an electoral college
consisting of the members of state legislative assemblies in accordance with
the system of proportional representation by means of a single transferable
vote. 94 There are twelve nominated members having special knowledge or
practical experience in respect of literature, science, art and social service.
Unlike the House of Lords in the United Kingdom which is predominantly
hereditary in character, the Council of States in its composition corresponds
to the Senate of the American Congress in giving representation to the
states. In practice, h o w e v e r , the Council of States does n o t act as
championing the cause of the states in federal matters, and its members do
not vote as instructed delegates of the state. Rather, the pattern of its
deliberations is similar to that of the House of the People. Its sessions are
presided over by the Vice-President who acts as its ex ofjicio Chairman. 95
The House of the People is elected directly by the people on the basis
of adult suffrage. Its term is ordinarily five years but it may be dissolved
earlier by the President or extended by law during a period of emergency. 96
Seats in the House are allotted to each state in such manner that the ratio
86.
87.
88.
89.
90.
91.
92.
93.
94.

Article 85 (1).
Article 85 (2) (a).
Article 85 (2) (b).
Article 111.
Article 112.
Article 112-117.
See VII Constituent Assembly Debates, p. 1198.
Article 83 (1).
Article 83 (4). Representatives of the Union territories shall be chosen in such
manner as Parliament may by law prescribe : Article 83 (5); in this context see Part
IV (A) of the Representation of the People Act, 1950.
95. Article 64(1).
96. Article 83 (1) and (2).

72

INDIAN LEGAL SYSTEM

between the members and the p o p u l a t i o n of the state is, so far as

practicable, the same for all states. 97 For purpose of election, each state is
divided into territorial constituencies in such manner that the ratio between
the population of each constituency and the number of seats allotted to it is,
so far as practicable, the same throughout the state. 98 This House in its
composition corresponds to the House of C o m m o n s in the U n i t e d
Kingdom and to some extent the House of Representatives in the United
States. The House of Commons is elected directly by the people for five
years by adult suffrage in single member constituencies. In the United States
too, the House of Representatives is elected directly by the people for two
years, and the seats are apportioned among the states by Congress on the
basis of population, but the regulation of suffrage is wholly within the
control of the states. The House of Representatives is also not subject to
dissolution.
The Houses of Parliament shall be summoned by the President to meet
at such time as he thinks fit, but six months shall not intervene between its
last meeting in one session and the date appointed for its first sitting in the
next session. 99 If the President refuses to summon Parliament, it may
amount to violation of the constitutional obligation for which he may be
removed from his office by impeachment. 1 0 0 However, he cannot be
impeached unless Parliament is summoned and it can be done only by the
President. Such a stalemate cannot continue for long as the President would
find it almost impossible to run the governmental machinery on his own.
Nevertheless, an alternative provision on the Constitution to meet this
anomaly could have been provided. 101
The President is also given the power to dissolve the House of the
People. Ordinarily, the dissolution will take place on the advice of the Prime
Minister.102 The government may continue in office so long as it enjoys the
support of a majority of the House of the People. However, the Prime
Minister may advise dissolution if there are good reasons to do so, and the
timing of dissolution is entirely in the discretion of the Prime Minister. On
the other hand, if the government is defeated on a question of major policy,
the Prime Minister along with his colleagues should resign or ask for

97.
98.
99.

Article 81 (2) (a).

Article 81 (2) (b).
Article 85 (1). See U.N. Rao v. Indira Gandhi AIR 1971 SC 1002 and Indira Nehru
Gandhi v. Rajnarain AIR 1975 SC 2299.
100. Article 61.
101. .g., see article I, section 4 of the U.S.A. Constitution.
102. In this context, conventions governing the exercise of the royal prerogative to
dissolve Parliament may be examined. See Jennings, Cabinet Government, pp. 387389; Wade, Constitutional Law, 6th ed., p. 79; O. Hood Phillips, Constitutional Law,
2nd ed., pp. 88-91 and Keith, The Brituh Cabinet System, 2nd ed., pp. 299-305.

CONSTITUTIONAL LAW-

73

dissolution. Nevertheless, there may be circumstances in which the

President may dissolve the House of the People without obtaining the
advice of the Prime Minister or refuse to dissolve when advised by the
Prime Minister to do so. Thus, dissolution may be justified if the President
is satisfied that there are good grounds for thinking that the government no
longer enjoys the confidence of the House of the People or, perhaps, of the
people. Similarly, refusal or dissolution may be justified if the President is
satisfied that an existing Parliament is capable of doing its job, or it is
possible to find another person who would act as Prime Minister with a
w o r k i n g majority for a reasonable period, or a general election is
inopportune for reasons of economy or the nation is passing through a
critical period such as war with a foreign country. This is one of the rare
decisions which the President has to take on his own in the interest of the
nation. However, so far such an occasion has not arisen.
A situation may arise during the recess of Parliament in which an
executive action may not be sufficient to meet the exigency and it becomes
necessary to take immediate legislative action. It is, therefore, provided that
if, at any time, when both Houses of Parliament are not in session, the
President is satisfied that circumstances exist which render it necessary to
take i m m e d i a t e action, he may promulgate such ordinances as the
circumstances appear to him to require. Such ordinances shall have the same
force and effect as an Act of Parliament but it must be laid before both
Houses of Parliament and it ceases to operate at the end of six weeks from
the reassembly of Parliament unless resolutions disapproving it are passed
by both Houses before the expiry of that period. It may, of course, be
withdrawn at any time by the President. Such an ordinance is subject to all
those restriction which affect the legislative competency of Parliament under
the Constitution. 103 The satisfaction of the President to issue ordinances is
subjective and is, therefore, not justiciable. This power of the President is an
unusual p o w e r w h i c h has n o c o r r e s p o n d i n g provisions in o t h e r
Constitutions. However, its justification lies, as Ambedkar explained, in that
a situation, which has arisen suddenly and immediately and could not be met
effectively by the ordinary existing law, must be dealt with ex hypothesi.104
But, from the past experience, it could not be said with certainty that the
ordinances have been issued primarily to deal with situations which required
immediate action without waiting for Parliament to be summoned in due
course; in most instances they gave the impression that the government
103. Article 123. An ordinance is law within Article 13(3) of the Constitution and the
fundamental rights can be abridged by an ordinance in the same manner as an Act
of the legislature. See R.K. Anana v. UOI (1981) 4 SCC 675. See also A.K. Roy v.
UOIATR 1982 SC 710, in which the validity of National Security Ordinance 1988
dealing with curtailment of personal liberty by preventive detention law was
upheld.
104. Constituent Assembly Debates, p. 214.

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INDIAN LEGAL SYSTEM

wished to avoid a discussion on issues dealt with in the ordinance. 105 The
apex court in D.C. Wadhva v. State o/Bibar106 has held that repeated
promulgation of the same ordinance(s) is a fraud on the Constitution.
Detailed procedure is laid down in the Constitution for Parliament to
make laws. 107 A legislative proposal may be initiated in either House in the
form of a Bill, and it should be approved by both Houses before it is
presented to the President for his assent. If there is disagreement between
the two Houses, a joint sitting may be summoned for the purpose of
deliberating and voting on the Bill. This procedure gives an upper hand to
the House of the People whose members may form a decisive majority at
the joint sitting. A joint sitting to resolve differences between the two
Houses is a unique feature of the legislative procedure in India. In the
United Kingdom the House of Lords have a limited power of veto under
the Act of 1949 limiting its duration to two sessions and to a period of one
year and one month counting from the second reading of the Bill in the
House of Commons in the first session. In the United States, a convention
has been established to resolve such a difference through a joint conference
of representatives of both Houses of Congress. However, if the report of
this conference is rejected in either House, the proposal is dropped.
In financial matters, the powers of the Council of States are limited to
merely a delaying veto. 108 A money Bill shall be introduced only in the
House of the People. After it has been passed by the House of People, it
shall be transmitted to the Council of States for its recommendation and the
Council of States shall within a period of fourteen days of its receipt return
it to the House of People with its recommendation. If the recommendations
are accepted by the House of the People, it shall be deemed to have been
passed by both Houses. If the recommendations are not accepted, the Bill
will deemed to have been passed by both Houses in the form in which it
was passed by the House of the People. The President has no option but to
give assent to a money Bill, unlike in the case of an ordinary Bill which is
subject to the President's veto. 109 It will thus be seen that the role of the
Council of States in financial matters is to provide a forum for discussion
and, if necessary, make recommendations, and not to take decisions. This
role is similar to that of the House of Lords in the United Kingdom except
that it can make a delay of one month and has no power even to make
recommendations for the considerations of the House of Commons.
In a parliamentary form of government a legislature should be able to
discharge its functions properly, freely and independently. It is therefore,
105.
106.
107.
108.
109.

See J. Minattur, "Government by Ordinance", 1 Academy Law Review, 1977, p. 55.

(1987) 1 SCC 378.
Articles 107-122.
Article 109.
Article 110.

CONSTITUTIONAL LAW-

75

essential that adequate power, privileges and immunities are conferred on

Parliament and its members. This aspect has not escaped the attention of
the framers of the Constitution. 110 It is specifically provided that there shall
be freedom of speech 111 in Parliament and no member of Parliament shall
be liable to any proceedings in any court in respect of anything said or any
vote given by him in Parliament or any committee of it. Thus a member of
Parliament is free to express his views on any matter, and no action, civil or
criminal, will lie against him for the views expressed by him in Parliament or
in its committees. It is further provided that the validity of any proceedings
in Parliament shall not be called in question on the ground of any alleged
irregularity of procedure, and no officer or member of Parliament in whom
powers are vested by or under the Constitution for regulating the procedure
or the conduct of business, or for maintaining order in Parliament shall be
subject to jurisdiction of any court in respect of the exercise by him of those
powers. 112
The freedom of speech as a privilege of Parliament and its members is
made "subject to the provisions of this Constitution and to the rules and
standing orders reguLtingthe procedure ofParliament}1* Thus, the provisions of
the Constitution subject to which freedom of speech in Parliament is
exercised are only such of them as relate to the regulation of the procedure
of Parliament. 114 For example, clause (2) of article 19, which permits the
imposition of certain restrictions on the enjoyment of the right to freedom
of speech and expression of a citizen, does not control the freedom of
speech of a member of Parliament under clause (1) of article 105, 115
whereas, under article 118 Parliament is empowered to make rules for
regulating its procedure and the conduct of its business, and these rules may
provide for matters with respect to which the freedom of speech of a
member of Parliament is restricted. 116 So also by virtue of Article 121, no
discussion is to take place in Parliament with respect to the conduct of a
judge of the Supreme Court or of a High Court in the discharge of his duties
except upon a motion for presenting an address to the President praying for
110. For powers and privileges and immunities of Parliament and its members, see
article 105. A replica of this provision is found in article 194 which deals with state
legislatures and their members. Although the expression 'privileges' occurs in
article 105(3) and article 194(3) and is historically correct, having regard to the
terminology used in England, it should be pointed out that the current opinion in
England is not in favour of retaining the word 'privilege'.
111. The freedom of speech in the Parliament under this clause is absolute and is
independent of article 19. See P. V. Narasimha Rao v. State AIR 1990 SC 2120.
112. Article 122.
113. Opening words of clause (1), article 105.
114. See generally articles 107-121.
115. See M. S. M. Sharma v. 5. K. Sinha AIR 1959 SC 395.
116. See rule 159 of the Rules of Procedure of Parliament.

76

INDIAN LEGAL SYSTEM

the removal of the judge as provided in article 124 (4) and article 217 (1) (b).
However, in terms of clause (2) of article 105 which provides immunity of
action in any court in respect of a speech made by a member, the position
appears to be that though the conduct of a judge in relation to the discharge
of his duties cannot legitimately be made a subject of discussions inside
Parliament, a speech, if made in contravention of article 121, is protected
from action in any court. The only remedy is die power of the House to take
suitable action against a defaulting member under its Rules of Procedure.
Thus, freedom of speech of a member of Parliament inside the House is
literally absolute.117 Clause (2) of article 105 further declares that no person
shall be liable in respect of the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings.
Under the Parliamentary Proceedings (Protection of Publication) Act of
1956, publication of a substantially true report of the proceedings of either
House of Parliament is protected from proceedings, civil or criminal, in a
court of law. In this respect the Indian law follows closely the English
common law.118
In addition, clause (3) of article 105 lays down that in other respects, the
powers, privileges and immunities of each House of Parliament and its
members are the same as those enjoyed by the House of Commons and its
members in England at the commencement of the Constitution. 119 This will
continue to be so until a law is made by Parliament in this regard. Hence it
becomes necessary to refer to privileges enjoyed by the English House of
Commons whenever a question arises as regards the existence and extent of
powers, privileges and immunities enjoyed by each House of Parliament in
India. It may be emphasised that there are certain privileges which cannot be
claimed by the House in India. Thus, for example, the privilege of freedom
of access which is exercised by the House of Commons through its speaker
to have at all times the right to access, counsel or demonstrate with their
sovereign through their chosen representatives and for a favourable
consideration placed on his words, can have no application in India.
Similarly, a general warrant of arrest issued by the House in India cannot
claim immunity from scrutiny by courts in India as it, unlike the English
House of Commons, never discharged any judicial functions and cannot
claim to be regarded as a court of record in any sense. So the court could
117. In re: Article 143, Constitution ofIndia AIR 1965 SC 745 at 761.
118. Eg., Wason v. Walter L.R. 42 B. 73 and the Parliamentary Papers Act of 1840 passed
as consequence of the decision in Stockdale v. Hansard (1839) 19 A & E. 1.
119. After the adoption of the Constitution (Forty Fourth Amendment), Act, 1978 by
virtue of Clause 15, the powers, privileges and immunities of each House, and of
members and committees, shall be those of that House, and of its members and
committees, at the commencement of the Forty Fourth Amendment. In other
words, the existing privileges shall continue, until they are replaced by privileges
defined by law. See State ofKerala v. Sudarshan AIR 1984 Ker 1.

CONSTITUTIONAL LAW-

77

examine the legality of committal under orders of the House in proper

proceedings. 1 2 0 Further, it is likely that conflict may arise between a
privilege of the House under the latter part of clause (3) of article 105 and a
fundamental right guaranteed to a citizen in Part of the Constitution. For
example, Parliament p r o h i b i t s by its resolution publication of its
proceedings by any person. In that event, publication of proceedings in
contravention of the resolution would amount to contempt of Parliament
even though a citizen is given the right to freedom of speech and expression
under article 19 (1) (a). 121 O n the other hand, arrest of a person under
orders of the House would be regarded as bad if he has not been produced
before a magistrate within twenty four hours of his arrest as provided in
article 22(2). 122 So also article 21 would get precedence over clause (3) of
article 105. However, if a law is made defining privileges, etc., of Parliament
in pursuance of the first part of article 105 (3) it is immediately reduced to
the status of a 'law' within the meaning of article 13 (2), and courts will be
competent to examine its constitutionality by reference to the fundamental
rights guaranteed in Part III of the Constitution. 123
The Union judiciary
In a federal state, dispute between the centre and the constituent units are
not uncommon as regards the interpretation of the Constitution and, in
particular, the provision relating to the distribution of powers and functions
between them. Hence, it is essential that there should be a judicial body
which should be able to act impartially and independently. Moreover, the
Constitution guarantees fundamental rights to the citizens and the need for
an impartial and independent judicial body is all the more imperative for
adjudicating m a t t e r arising between the state and its citizens. T h e
Constitution has thus created such a body in the Supreme Court 124 which is
entrusted to act as the interpreter and guardian of the constitutional
provisions. Article 124 vests the power of appointment of the Chief Justice
of India (CJI) and the Judges of the Supreme Court in the President. It is
provided that the President shall by warrant, make the appointment after
consultation with such of the judges of the Supreme Court and the high
court of the States, as he may deem necessary. In the case of appointment of
a judge other than the Chief Justice of India, the CJI shall always be
120. In re: Article 143, Constitution ofIndia AIR 1965 SC 745.
121. M. S. M. Sharma v. Srikrishna Sinha AIR 1959 SC 395.
122. Gunnupati Keshavram Ready v. Nafisul Hasan AIR 1954 SC 636. Also refer to its
discussion in M.S.MSharma v. Sri Krishna Sinha, supra note 115 and In re: Article
143, Constitution ofIndia, supra note 117 at 765.
123. Supra note 115.
124. The present strength of Supreme Court is 25 judges other than the Chief Justice of
India.

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INDIAN LEGAL SYSTEM

consulted. The President, of course, means the Executive, i.e., the President
acting on the advice of Council of Ministers. Thus CJI and other such judges
of the Supreme Court and the high court shall be consulted by the President
as he may deem necessary. The appointment of judges of high courts is also
made by the President and for that he has to consult the CJI, the Governor
of the State and the Chief Justice of the High Court. 125
Prior to 1993, there was a consensus of opinion that 'consultation' does
not mean 'concurrence'. 126 It was held that consultation must be effective
which implied exchange of views after examining the merits of the proposed
candidate. 127 Later on it was held that article 217(1) of the Constitution
placed all the three constitutional functionaries on the same pedestal and
that there is no primacy given to the CJI. 1 2 8 The matter was litigated
further 129 and in July 1998, the President sought the court opinion 130 on
nine issues relating to the appointment of Apex Court judges and transfer of
high court judges which, inter alia, included clarification on certain doubts
over the consultation process to be adopted by the CJI himself. The apex
court in these cases has in effect emphasized upon integrated 'participatory
consultative process for selecting the best and most suitable persons
available for appointment' in which "all the constitutional functionaries
must perform this duty collectively with a view primarily to reach an agreed
decision, sub-serving the constitutional purpose, so that the occasion of
primacy does not arise" in the matter of appointment of judges. However, in
case of disagreement between the President and the CJI, the opinion of the
latter must prevail.
The matter relating to appointment of judges had been debated over a
decade. The Constitution (Sixty-Seventh Amendment) Bill, 1990 was
introduced on 18 th May 1990 providing for the institutional frame work of
National Judicial Commission for recommending the appointment of judges
to the Supreme C o u r t and the various high c o u r t s . T h e N a t i o n a l
Commission for Review of the Working of the Constitution also supported
the view, but the proposal has, it seems, been shelved. A judge may resign
his office by writing under his hand addressed to the President, and he may
be removed from office by an order of the President. However, the
President shall not pass the order of removal unless an address by each
House of Parliament supported by a majority of the total membership of

125.
126.
127.
128.

Article 217.
P.N. Lakhanpal v. AN. Ray AIR 1975 Del. 66.
Union ofIndia v. Sankalchand See AIR 1977 SC 2328.
S..P. Gupta v. Union ofIndia AIR 1982 SC 149 (popularly known as the First judges'
case).
129. Supreme Court Advocates-on-Records Association v. Union ofIndia AIR 1994 SC 268
{Second Judges' Case).
130. In re Special Ref. No. 1 of 1998 AIR 1999 SC 1.

CONSTITUTIONAL LAW-

79

that House and by a majority of not less than two-thirds of the members of
that House present and voting has been presented to him in the same
session for such removal on the ground of proved misbehaviour or
i n c a p a c i t y . The p r o c e d u r e for the investigation and proof of the
misbehaviour or incapacity of a judge is to be regulated by a law made by
Parliament. 131 The judges' privileges, allowances and rights in respect of
leave of absence and pensions are to be determined by law made by
P a r l i a m e n t and shall n o t be varied to his disadvantage after his
appointment. 1 3 2 A person who has held office as a judge of the Supreme
Court is debarred from pleading or acting in any court or before any
a u t h o r i t y w i t h i n the territory of India. 1 3 3 Subject to a law made by
Parliament, the Supreme Court may from time to time, with the approval of
the President, make rules for regulating generally the practice and procedure
of the court. These rules may fix the minimum numbers of judges who are
to sit for any purpose, and may provide for the power of single judges and
Division Benches. However, the minimum number of judges who are to sit
for the purpose of deciding any case involving a substantial question of law
about the interpretation of the Constitution or for the purpose of hearing a
reference for advice made by the President shall be five. If in the course of
hearing any appeal, the Supreme Court is satisfied that the appeal involves a
substantial question of law as to the interpretation of the Constitution the
determination of which is necessary for the disposal of the appeal, such a
question shall be referred for opinion to a court duly constituted for such
purposes and on receipt of the opinion the appeal will be disposed off in
conformity with such opinion. All judgements and opinions of the Supreme
Court are to be delivered in the open court. A judgement or an opinion shall
not be delivered except with the concurrence of the majority of the judges
present at the hearing of the case. A judge who does not concur with the
majority opinion is entitled to deliver a dissenting judgement or opinion. 134
The administrative expenses of the Supreme Court shall be charged upon
the C o n s o l i d a t e d F u n d of India and will n o t be subject t o v o t e in
Parliament. Fees and other money taken by the Supreme Court shall form
part of the Consolidated Fund of India.135 All these provisions are directed
to maintain the dignity of the Supreme Court and create conditions for the
judges to act impartially and independently.
The Supreme Court is the final arbiter on the interpretation of the
Constitution. 1 3 6 It is not merely the interpreter of the law as existing but
131.
132.
133.
134.
135.
136.

Article 124, see the Judges (Inquiry) Act, 1968.

Article 125, see the Supreme Court Judges (Conditions of Service) Act, 1958.
Article 124 (7).
Article 145.
Ankle 146.
P. Kannadasan v. State ofT.N. AIR 1996 SC 2560.

80

INDIAN LEGAL SYSTEM

much beyond that. The court as a wing of the state is by itself a source of
law. The law is what the court says it is.137
The law declared by the Supreme Court shall be binding on all courts
within the territory of India. 1 3 8 Thus in India, as is the case in other
common law jurisdictions, the doctrine of binding precedent is followed,
and the decisions of the Supreme Court are made authoritative. All courts
within the territory of India must take judicial notice of such decisions.
However, there is nothing in the Constitution which prevents the Supreme
Court from departing from its previous decisions if the court is convinced
of its error and its baneful effect on the general interest of the public, 139 or
its inconsistency with the legal philosophy of the Constitution. 1 4 0 For
example, the Supreme Court in Golaknath v. State ofPunjab}*1 overruled its
earlier decisions in ShankriPrasadv.
Union of India1*2 and Sajjan Singh v. State
143
ofRajasthan,
and later overruled Gohknath v. State of Punjab in Kesavananda
Bharati v. State ofKereL.1*4

Under Article 32 (2), the Supreme C o u r t has the power t o issue

directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of fundamental rights. This jurisdiction of
the Supreme Court is itself declared to be fundamental right and it cannot
be taken away or whittled down by legislation.145 Even the existence of an
alternate or adequate legal remedy is not a good and sufficient ground for
rejecting a writ application made under article 32. 146 The Supreme Court
has jurisdiction to enforce the fundamental rights against private bodies and
individuals and can award compensation for violation of the fundamental
rights. It can exercise its jurisdiction suo motto or on the basis of Public
Interest Litigation (PIL).147 Moreover, a petition under article 32 will not be
rejected simply because the proper writ or direction has not been prayed
for.148 However, the jurisdiction can be invoked only for the enforcement
137. Nandkishan v. State of Punjab (1995) 6 SCC 614.
138. Article 141. See Suganthi Suresh Kumar v. Jagdeesham AIR 2002 SC 68 land Bhavnagar
University v. Palitana Sugar Mills Pvt. Ltd. AIR 2003 SC 511.
139. Bengal Immunity Co. Ltd. v. State ofBihar AIR 1955 SC 661.
140. Superintendent and Remembrancer of Legal Affairs v. Corporation ofCalcutta AIR 1967 SC
997.
141. AIR 1967 SC 1643.
142. AIR 1951 SC 458.
143. AIR 1965 SC 845.
144. (1973) 4 SCC 225.
145. A.K. Gopalan v. State of Madras AIR 1950 SC 27 and Prem Cband v. Excise
Commissioner AIR. 1963 SC 996.
146. K.K.Kochunni v. State ofMadras 1959 SCJ 858.
147. Bodhisatwa Gautam v. Shubbra Chakravarty AIR 19% SC 922.
148. Cbaranjit Lai v. Union ofIndia AIR 1951 SC 41.

CONSTITUTIONAL LAW-

81

of the fundamental right and not any other right.149 In M.C. Mehta v. Union
of India150 the Supreme C o u r t has held that it had power t o award
compensation under article 32 petitions in cases of industrial disasters. The
Court has evolved new basis of liability in public law (as distinguished from
private law) where breach of fundamental right is involved.151 Nevertheless,
Parliament may by law confer on the Supreme Court power to exercise this
jurisdiction for any purpose other than the enforcement of fundamental
rights, 152 The Supreme Court may not exercise its jurisdiction under article
32 if a petitioner is found guilty of laches or inordinate delay. 153 Also if a
writ petition has been heard and decided on merits by the high court under
article 226 for the enforcement of a fundamental right, it cannot be heard
afresh by the Supreme Court under article 32 because of res judicata; 154 a
petitioner can choose to make an application either to the high court under
article 226 or to the Supreme Court under article 32. In a petition under
article 32, the petitioner may be directed to approach the high court under
article 226. 155
The Supreme Court has also original jurisdiction in any dispute (a)
between the Union and one or more states; or (b) between the Union and
any one state on one side and one or more other states on the other, or (c)
between two or more states, which involves any question of law or fact on
which the existence or extent of a legal right depends. 156 It has been held
that Article 131 should be attracted only when the dispute arises between or
amongst the state and the Union in their constitutional capacity and not in
their contractual capacity. This jurisdiction does not extend to (i) a dispute
arising out of any treaty, agreement, covenant, engagement, sanad or other
similar instruments, which having been entered, into or executed before the
commencement of the Constitution, continues in operation after such
149. Khyerbari Tea Co. v. State of Assam AIR 1964 SC 925. Whether a petition under
article 32 is maintainable or not raises complex issues, and it sometimes becomes
difficult to comprehend them, e.g., see Ujjambhai v. State ofU.P. AIR 1962 SC 1621.
150. AIR 1987 SC 1086.
151. Rudal Shah v. State of Bihar (1983) 4 SCC 141; Nilabati Beber v. Sute ofOrissa AIR
1993 SC 1960; Union Carbide v. Union ofIndia AIR 1992 SC 248; Bhimsingh v. State of
J&K AIR 1986 SC 494 and Chairman, Railway Board v. ChandrimeDas (2000) 2 SCC
465.
152. Article 139.
153. Trilokchand v. H. B. Munshi (1969) 2 SCR 824.
154. Daryao Singh v. State ofU.P. AIR 1961 SC 1153.
155. KanubhaiBrabmbhattv. State of Gujrat AIR 1987 SC 1159 and P.N. Kumar v. Munkipal
Corporation ofDelhi (1987) 4 SCC 609.
156. Article 131. For the exercise of this jurisdiction, see, StateofW. B. v. Unionoflndia
AIR 1963 SC 1241; State of Bihar v. Union of India AIR 1970 SC 1446; State of
Karnataka v. Union ofIndia AIR 1978 SC 68 and State ofRajasthan v. Union ofIndia
AIR 1977 SC 1361.
157. Article 131 (proviso).

82

INDIAN LEGAL SYSTEM

commencement, or which provides that this jurisdiction shall not extend to

such a dispute, 157 and (ii) any dispute arising out of any provision of treaty,
agreement, covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of the Constitution
by any ruler of an Indian state and to which the G o v e r n m e n t of the
Dominion of India or any of its predecessor governments was a party and
which has or has not continued in operation after such commencement or
in any dispute in respect of any right accruing under or any liability or
obligation arising out of any of the provisions of the Constitution relating to
any such treaty, agreement, covenant, engagement, sanad or some similar
instrument. 158 The jurisdiction of the Supreme Court may also be taken
away by a law made by Parliament in any dispute or complaint with respect
to the use, distribution or control of the waters of any inter-state river or
river valley.159
The Supreme Court has also jurisdiction to hear appeals from any
judgement, decree or final order of a High Court and other tribunals.
Besides having appellate jurisdiction in appeals from a High Court in regard
to civil and criminal matters under articles 133 and 134, an appeal shall lie to
the Supreme Court from any judgment, decree or final order of a High
Court, whether in a civil, criminal or other proceedings, if the High Court
certifies that the case involves a substantial question of law as to the
interpretation of the Constitution. Where the High Court has refused to give
such a certificate, the Supreme Court may grant special leave to appeal from
such judgement, decree or final order if it is satisfied that the case involves
a substantial question of law as to the interpretation of the Constitution. 160
Thus the Supreme Court is given jurisdiction as the final appellate authority
in matters relating to the interpretation of the Constitution irrespective of
the nature of the proceedings in which they may arise, and this jurisdiction
is freed from other limitations imposed under articles 133 and 134.161
By virtue of article 136, the Supreme Court may, in its discretion, 162
grant special leave to appeal from any judgement, decree, determination,
sentence or order in any cause or matter passed or made by any court or
tribunal. This is an omnibus provision for appeals to the Supreme Court by
special leave, and the conditions necessary for the hearing of the appeals by
the Supreme Court under other provisions of the Constitution are not to be
fulfilled in this case. However, the determination, sentence or order which is
a subject-matter of appeal, must have the character of judicial adjudication
158.
159.
160.
161.
162.

Article 303 (1).

Article 262.
Article 132.
See, State of]. & K. v. Ganga Singh AIR 1960 SC 356.
State of Bombay v. Rusy Mistry AIR 1960 SC 391 and Municipal Board v. Mahendra
Singh AIR 1982 SC 1493.

CONSTITUTIONAL LAW-

83

and must have emanated from a court or a tribunal. 163 This jurisdiction will
be exercised by the Supreme Court in exceptional cases where grave and
substantial injustice has been done by disregard of the forms of legal process
or violation of the principles of natural justice or otherwise 164 and the
judgment is tainted with serious legal infirmities, or is founded on a legal
construction which is wrong. 1 6 5 It being an exceptional and overriding
power, naturally it has to be exercised sparingly and with caution and only in
special and extraordinary situations.166 In criminal cases, the Supreme Court
will not grant special leave to appeal unless it is shown that special and
exceptional circumstances exist, that substantial and grave injustice has been
done and the case in question presents features of sufficient gravity to
warrant a review of the decisions appealed against.167 The power to grant
special leave to appeal by the Supreme Court is not limited to orders or
d e t e r m i n a t i o n s of a court of law, but includes within its ambit all
adjudicating bodies commonly known as tribunals, provided they are
c o n s t i t u t e d by t h e state and are invested w i t h judicial, as against
administrative or executive, functions. 168 Thus an arbitrator appointed
under section 10 of the Industrial Disputes Act, 1947 is not a tribunal,
because he lacks the basic, the essential and the fundamental requisite in that
behalf, that is, the state's inherent judicial power. 169 The grounds on which
the Supreme Court would normally interfere with the decisions arrived at by
tribunals are, (i) excess of jurisdiction or failure to exercise a patent
jurisdiction, (ii) error apparent on the face of the decision, (iii) violation of
the principles of natural justice, causing substantial and grave injustice to
parties, and (iv) erroneous application of the well accepted principles of
jurisprudence". 170 The extraordinary power conferred by article 136 cannot
be taken away by any legislation short of constitutional amendment. 1 7 1
Conclusiveness or finality given by a statute to any decision of a court or
tribunal cannot deter the Supreme Court from exercising this jurisdiction.172
163.
164.
165.
166.
167.

168.

169.
170.
171.
172.

Engineering MazdurSabhav. Hind Cycle Ltd AIR 1%3SC875.

Sanwat Singh v. State ofRajasthan AIR 1961 SC 715.
Batkrishna v. Matha (1991) 2 SCC 203.
Dhakeshwari Cotton Mills v. C.I. T, West Bengal AIR 1955 SC 65.
Pritam Singh v. The State AIR 1950 SC 169; Anvaruddin v. Shakoor AIR 1990 SC
1242; Gauri Shanker v. State of UP AIR 1990 SC 709; Mahesh v. State of Delhi AIR
1991 SC 1108; Jumman v. StateofUPMR 1991 SC 345 wd Rajan v. State of Bihar
AIR 1991 SC 1377.
Durga Shankarv. Raghuraj Singh AIR 1954 SC 520; Bharat Bank v. Employees ofBharat
Bank AIR 1950 SC 188, Union of India v. M.P. Singh AIR 1990 SC 1098 and
Medimpex (India) Pvt Ltd v. Drug Controller cum-ChiefLicensing Authority AIR 1990 SC
544.
Supra note 151.
Alembic Chemical Works v. The Workmen AIR 1961 SC 647.
Union Carbide v. Union ofIndia AIR 1992 SC 248.
East India Hotels v. Syndicate Bank (1992) Supp (2) SCC 29.

84

INDIAN LEGAL SYSTEM

It is not restricted even by the appellate provision enumerated under the

Criminal Procedure Code or any other Statute.173
Though the discretionary power vested in the Supreme Court under
article 136 is not subject to any limitation, the Court has imposed certain
limitation upon its own powers. 174 Thus, it has laid down that this power is
to be exercised sparingly and in exceptional cases only. 175 By virtue of this
article, the apex court can grant special leave to appeal in 'any cause or
matter' - civil, criminal or otherwise, and from any court or tribunal in
India. The only uniform standard that can be laid down regarding these
varieties of cases is that the power shall be exercised only where special
circumstances are shown to exist. 1 7 6 Moreover, when an individual
aggrieved by the decision of the high court under article 226 does not get
relief in special leave petition under article 136 and his application for review
has been rejected, he cannot challenge the decision of the Supreme Court by
invoking the Court's jurisdiction under article 132. He can, however, file a
'curative petition' as per procedure indicated by the Court. 177
The Supreme Court has also an advisory or consultative jurisdiction. If
at any time it appears to the President that a question of law has arisen or is
likely to arise, which is of such a nature and of such public importance that
it is expedient to obtain the opinion of the Supreme Court upon it, he may
refer the question to that Court for consideration and the Court may, after
such hearing as it thinks fit, report to the President its opinion thereon. 178
Accordingly, the President may formulate for the advisory opinion of the
Supreme Court questions relating to the validity of the provisions proposed
to be included in the Bills which would come before the legislature or in
respect of any other question of constitutional importance. 179 It is in the
discretion of the President to refer a question to the Supreme Court for its
opinion, and the Supreme Court cannot go beyond the reference and discuss
problems other than those mentioned therein. However, the Supreme C o u n
has discretion to entertain a reference made to it by the President, and may
in a proper case and for good reasons decline to express any opinion on the
question referred to. 180 The advisory opinion of the Supreme Coun, though
entitled to great respect, is not binding on the President. So also it is not
binding on other couns as a precedent as it is not 'law' within the meaning
173. Chandrakant Patil v. State AIR 1998 SC 1165.
174. Kunhayammed v. State ofKerala AIR 2000 SC 2587.
175. Bharat Bank v. Employees ofBharat Bank AIR 1980 SC 188 and Pntam Singh v. State
AIR 1950 SC 169.
176. Arunachalam v. Sethuratnam AIR 1979 SC 1284.
177. Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388.
178. Article 143.
179. In re: Article 143, Constitution ofIndia AIR 1965 SC 745.
180. In re: Kerela Education Bill AIR 1958 SC 956 at 964.

CONSTITUTIONAL LAW-

85

of article 1 4 1 . m This jurisdiction of the Supreme Court is analogous to that

of the Privy Council under the Judicial Committee Act, 1833, and that of the
Canadian Supreme Court under the Canadian Supreme Court Act, 1706. But
the American Supreme Court has refused to pronounce advisory opinions
upon abstract questions of law on the ground that to do so would be
incompatible with its position under the U. S. Constitution. 182
Till now, the President has referred question of the following nature,
namely, the constitutionality of an existing law;183 the constitutionality of a
Bill presented for the Presidential assent; 184 the implementation of an
international agreement, 185 the constitutionality and vires of a draft Bill to
be moved in Parliament, 186 the respective jurisdiction of the legislature and
the superior courts in relation to the power of the former to punish for
contempt, 187 interpretation of constitutional provision relating to election of
the President, 188 Powers of an intre-state water disputes tribunal and power
of a state to legislate in regard to such tribunal, 189 whether a Hindu temple
or religious structure existed at a particular place, 190 and consultation
between Chief Justice of India and his brother judges in the matter of
appointment of Supreme Court and high court judges and the transfers of
the latter etc.191
The states
Generally speaking, the structure of a state government closely resembles
the structure of the Union government. The state executive, like the Union
executive, is of the parliamentary form of government. Article 153 provides
that there shall be a Governor for each state. The executive power of the
state is vested in the Governor and is to be exercised by him either directly
or t h r o u g h officers subordinate t o him in accordance w i t h the
Constitution. 192 The Governor is appointed by the President for a period of
181. In re: Allocation ofLands and Buildings AIR 1943 F.C. 13. However, a contrary view
has been expressed by the Supreme Court in In re Special Courts Bill AIR 1979 SC
478. Thus all courts in the territory of India (except the Supreme Court) are bound
by the opinion of the apex court even though it has been given under advisory
jurisdiction.
182. Mustrat v. U.S. (1911) 56 Law Ed. 246 at 252.
183. In re Delhi Laws Act, 1912 AIR 1951 SC 332.
184. In re Kerala Education Bill AIR 1958 SC 956 and In re Special Courts BUI AIR 1979 SC
478.
185. In re Berubari AIR 1960 SC 845.
186. In re Sea Customs Act 1948 AIR 1963 SC 1760.
187. Kesbav Singh's Case AIR 1965 SC 745.
188. In re Presidential Election AIR 1974 SC 1682.
189. In re Cauvery Water Disputes Tribunal AIR 1992 SC 522.
190. Special Reference No. 1 of 1993 (1993) 1 SCC642.
191. Special Reference No. I of 1998 (1990) 7 SCC 739.
192. Article 154.

86

INDIAN LEGAL SYSTEM

five years, and holds office during the pleasure of the President. 193 He has
powers to grant pardons, reprieves, respites or remissions of punishment or
to suspend, remit or commute the sentence of any person convicted of any
offence against any law relating to a matter to which the executive power of
the state extends.194 The executive power of the state is coextensive with its
legislative competence. 195
The Governor is de jure head of the state, and the defacto power is
wielded by the Council of Ministers. Article 163 provides that there shall be
a Council of Ministers headed by the Chief Minister to aid and advise the
Governor in the discharge of his functions except in the exercise of his
functions or any one of them in his discretion. If any question arises
whether any matter is or is not a matter as respects which the Governor is
by or under the Constitution required to act in his discretion, the decision of
the Governor in his discretion shall be final, and the validity of anything
done by the Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion. This provision may give
an impression that the Governor has unfettered power to act in his
discretion with respect to any matter and take a decision in disregard of the
advice given by the Council of Ministers or without consulting the Council
of Ministers. However, the basis of the state executive is full responsible
government, and the Governor in practise has to accept the advice given by
the Council of Ministers. Nevertheless, the Governor as a representative of
the President in the state has to discharge certain constitutional functions,
such as those envisaged under article 356, and in the discharge of such
functions he may act in his discretion. It is true that the President has power
to act in his discretion under the Constitution, but it does not mean that the
Governor by virtue of power to act in his discretion can act constitutionally
on his own or against the wishes ofthe Council of Ministers.
The legislature of a state consists of the Governor and two Houses
known as the Legislative Assembly and the Legislative Council. 196 Some
states have only one House, that is, the Legislative Assembly. But
Parliament may by law provide for the abolition of the Legislative Council
of a state having such a council or for the creation of such a council in a
state having no such council, if the Legislative Assembly of the State passes
a resolution to that effect by a majority of the total membership of the
Assembly and by a majority of not less than two-thirds of the members of
the Assembly present and voting. 1 9 7 The procedure to be followed in
193.
194.

Articles 155 and 156.

Article 161, for discussion on the scope of this provision see, State of Bombay v. K.
M. Nanavati 62 Bom. L.R. 383.
195. Article 162.
196. Article 168.
197. Article 169.

CONSTITUTIONAL LAW-

87

legislative matters is common to both the Houses. A Bill, other than a

Money Bill, may originate in either House of the legislature and shall be
deemed to have been passed only when it is agreed by both the Houses
either without amendment or with such amendments as are agreed to by
both the Houses. However, if after a Bill has been passed by the Legislative
Assembly of the state and is transmitted to the Legislative Council and the
Bill is rejected by the Council, or more than three months have elapsed from
the date on which the Bill is laid before the Council without the Bill being
passed or the Bill is passed by the Council with amendment to which the
Legislative Assembly does not agree, the Legislative Assembly may pass the
Bill again in the same or subsequent session with or w i t h o u t such
amendments, if any, as have been made, suggested or agreed to by the
Legislative Council and then transmit the Bill so passed to the Legislative
Council. 1 9 8 If after a Bill has been so passed for the second time by the
Legislative Assembly and is transmitted to the Legislative Council, and the
Bill is rejected by the Council, or more than one month has elapsed from
the date on which the Bill is laid before the Council without the Bill being
passed by it, or the Bill is passed by the Council with amendments to which
the Legislative Assembly does not agree, the Bill shall be deemed to have
been passed by the Houses of the legislature of the state in the form in
which it was passed by the Legislative Assembly for the second time with
such amendments, if any, as have been made or suggested by the Legislative
Council and agreed to by the Legislative Assembly. 199 Thus the power of
the two Houses of the legislature in a state are not equal. In effect the
Legislative Council can only make a delay in the passing of the Bill for some
time, and ultimately the Legislative Assembly has a final say in Legislative
matters. As regards a Money Bill, it shall not be introduced in the Legislative
Assembly of a state having a Legislative Council, it shall be transmitted to
the Legislative Council for its recommendations and the legislative Council
shall within a period of fourteen days from the date of its receipt of the Bill
return the Bill to the Legislative Assembly with its recommendations and the
Legislative Assembly may thereupon either accept or reject all or any of the
recommendations of the Legislative Council. If the Legislative Assembly
accepts any of the recommendations of the Legislative Council, the Money
Bill shall be deemed to have been passed by b o t h Houses with the
amendments recommended by the Legislative Council and accepted by the
Legislative assembly. If the Legislative Assembly does not accept any of the
recommendations of the Legislative Council, the Money Bill shall be deemed
to have been passed by both the Houses in the form in which it was passed
by the Legislative Assembly without any of the amendments recommended
by the Legislative Council. If a Money Bill passed by the Legislative
198. Article 196.
199. Article 197.

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INDIAN LEGAL SYSTEM

Assembly and t r a n s m i t t e d to the Legislative C o u n c i l for its

recommendations is not returned to the Legislative Assembly within
fourteen days, it shall be deemed to have been passed by both Houses at the
expiry of the above-mentioned period in the form in which it was passed by
the Legislative Assembly.200 The principle underlying this procedure is that
the proposal for the imposition of tax or the appropriation of money should
originate in a House which represents the people, and that House should
have a final say in money matters. After a Bill has been passed by both the
Houses of the legislature, it must be presented to the Governor. The
Governor shall declare either that he assents to the Bill or that he withholds
assent therefrom or that he reserved the Bill for the consideration f the
President. The Governor may as soon as possible after the presentation to
him of the Bill, except a Money Bill, for assent, return the Bill with a
message for reconsideration or may suggest amendments, and the House or
Houses must reconsider the Bill accordingly. If the Bill is passed again by
the House or Houses with or without amendments and presented to the
Governor for his assent, the Governor shall not withhold his assent. If in
the opinion of the Governor a Bill would, if it became law, so derogate from
the powers of the high court as to endanger the position which the court is
by the Constitution designed to fulfil, he shall not assent to it, but shall
reserve the Bill for the consideration of the President. 201 When a Bill is
reserved for the consideration of the President, he shall declare either that
he assents to it or that he withholds assent therefrom. But if the Bill is not a
money Bill, he may direct the Governor to return it to the House or Houses
of the Legislature with a message for reconsideration, or may suggest
amendments, and the House or Houses must reconsider his suggestions
within a period of six m o n t h s . If it is again passed with or w i t h o u t
a m e n d m e n t s , it shall be presented again to the President for his
consideration. 202 The power to reserve a Bill for the consideration of the
President indicates the upper hand of the Union government in matters of
legislation in a state.
For each state there is a high court. 203 Each high court consists of a
Chief Justice and such other judges as the President may from time to time
deem it necessary to appoint. 204 A judge of a high court is appointed by the
President after consultation with the Chief Justice of India, the Governor of
the state, and, in the case of appointment of a judge other than the Chief
Justice, the Chief Justice of the high court. 205 A judge may resign his office
200.
201.
202.
203.
204.
205.

Article 198.
Article 200.
Article 201.
Article 214.
Article 216.
Article 217.

CONSTITUTIONAL LAW-

89

or may be removed from his office by the President in the same manner as
a judge of the Supreme Court may be removed. The high courts have the
same jurisdiction which they had immediately before the commencement of
the Constitution, subject, however, to the provisions of the Constitution and
to the provisions of any law of the appropriate legislature.206 The high court
did not have original jurisdiction with respect to any matter concerning
revenue or its collection. But this restriction no longer applied under the
Constitution. Article 226 confers a new power on the High Courts to enable
them to issue to any person or authority, including, in appropriate cases, any
government, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorary, for the enforcement of any
of the fundamental rights and for any other purpose. The high courts may
issue orders in the nature of writs to government and authorities outside
their territorial jurisdiction provided the cause of action arises within their
jurisdiction. Thus power conferred upon the high courts is not in derogation
of the power conferred on the Supreme Court by clause (2) of article 32.
Both the Supreme Court and the high courts have power to issue orders in
the nature of writs for the enforcement of fundamental rights. Article 226 is
couched in the widest possible terms and unless there is a clear bar to its
jurisdiction, its power under this article can be exercised when there is any
act which is against any provision of law or violative of the constitutional
provisions and when recourse cannot be had to the provisions of the Act
for the appropriate relief.207 Under article 226, the high court does not sit or
act as an appellate authority over the actions of the subordinate authorities
or tribunals. The jurisdiction is supervisory in nature. 208 It has to confine
itself to correcting any error of jurisdiction by the authorities and cannot
assume suo motu jurisdiction of the appellate court and attempt to correct
every mistake assumed to have been made by the tribunal. 209 It can strike
down an impugned rule and direct the authorities to reframe it but cannot
itself reframe it. 210 The power of judicial review under article 226 is not
directed against the decision but is confined to the decision making process.
Judicial review is not an appeal from a decision but a review of the manner
in which the decision is made. The court sits in the judgement only on the
correctness of the decision making process and not on the correctness of
the decision itself.211 However, the high courts are further empowered to
206.
207.
208.
209.

Article 225.
K. Venkatacham v. A. Swamiokan (1999) 6 SCC 749.
Chandigarh Administration v. Manpreet Singh AIR 1992 SC 435.
Khanna Improvement Trust v. Land Acquisition Tribunal (1995) 2 SCC 557; State ofU.P.
v. Committee ofMgt. (1995) Supp (2) SCC 535 and Municipal Board v. Imperial Tobacco
ofIndia AIR 1999 SC 264.
210. Chandigarh Administration v. Manpreet Singh AIR 1997 SC 435.
211. H.B Gandhi v. Gopinath & Sons (1992) Supp (2) SCC 312 and Style (Dress Land) v.
Union Territory, Chandigarh (1999) 7 SCC 89.

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INDIAN LEGAL SYSTEM

issue orders in the nature of writs for any other purpose, that is, for the
enforcement of any other legal right or duty. This jurisdiction of the high
court is to be exercised in extraordinary cases in which ordinary legal
process is not adequate or an alternative legal remedy is not available. 212
Nevertheless, the writ jurisdiction of the high court is discretionary and the
availability of other legal remedies is not per se a bar to the issue of an order
in the nature of a writ.213 This jurisdiction is conferred on the high courts in
very wide terms and gives discretion of a most extensive nature. But this
wide and extensive nature of the jurisdiction imposes on the high courts the
responsibility to issue orders in the nature of writs with great caution and
circumspection. Thus, this jurisdiction must be in accordance with well
established principles,214 and the writs are intended to enable the high court
to issue them in grave cases where an authority or a tribunal has acted
wholly without jurisdiction or in excess of it or in violation of the principles
of natural justice or refuses to exercise a jurisdiction vested in it or there is
an error apparent on the face of the record, and such act, omission, error or
excess has resulted in manifest injustice.215 The high court while exercising
extraordinary jurisdiction under article 226 cannot direct the State
Legislature to enact a law. 2 1 6 The high courts in the exercise of this
jurisdiction cannot convert themselves into a court of appeal and judge for
themselves the correctness of the decision impugned on merits. 2 1 7 This
jurisdiction may not be invoked if there is inordinate delay in making a
petition to the high court, 218 if the petitioner is guilty of suppression of
material facts,219 or if the writ applied for is not likely to serve any useful
purpose. 220 The law declared by the high court in a case under article 226
would be binding on all inferior courts as well as tribunals with in the
state. 221
Legislative relations
A federation implies distribution of legislative powers between the central
212. Rashid Ahmad v. Municipal Board, Kairana AIR 1950 SC 163 at 165.
213. State ofU.P. v. Mobd. Nooh AIR 1958 SC 86; A.V. Venkateshwaran v. R. S. Wadhani
AIR 1961 SC 1506 and Durga Pd. v. Naveen Chandra (1996) 3 SCC 300.
214. Janardban Ready v. The State ofHyderabad 1951 SCR 344.
215. Veerappa v. Raman AIR 1952 SC 192.
216. State ofHP. v. Parent ofa student of Medical College (1985) 3 SCC 169. See also Union
of India v. Prakash P. Hinduja AIR 2003 SC 2612.
217. Han Vishnu Kamath v. Ishaw Ahmad AIR 1955 SC 233 at 240.
218. Mongey v. Board ofRevenue AIR 1957 All. 47 and Bumstandard Co. v. Dinbandhu
Mazumdar (1995) 4 SCC 172.
219. Abdul Ghafoor v. The State AIR 1968 M. P. 29 and Chancellor v. Bijoyanand Kar AIR
1994 SC 579.
220. Gopi Prasad v. Board ofRevenue AIR 1953 Nag. 121.
221. MA East India Commercial Co. v. Collector of Custom AIR 1962 SC 1893.

CONSTITUTIONAL LAW-II

91

government and the government of the constituent units. Both sets of

g o v e r n m e n t are independent and a u t o n o m o u s in their respective
jurisdictions, and the relations between them are governed by the
fundamental law of the country, that is, the Constitution. So is the case in
India. Article 245 provides that Parliament may make laws for the whole or
any p a n of the territory of India, and the legislature of a state may make
laws for the state or any part thereof. N o law made by Parliament shall be
deemed to be invalid on the ground that it would have extra-territorial
operation. In the absence of any reference to the states, it is implied that the
legislature of a state has no power to make a law having extra-territorial
operation. However, a state law is not invalid so long as there is a sufficient
nexus b e t w e e n the state making the law and the subject m a t t e r of
legislation.222 Article 246 provides for a three-fold distribution of powers as
specified in the Seventh Schedule to the Constitution, and the entire
legislative field has been drawn out elaborately and exhaustively in three
lists. Parliament is empowered to make law exclusively with respect to
matters enumerated in List I-Union List. 223 Similarly, the legislature of a
state is empowered to make law exclusively with respect to a matter
enumerated in List II-State List.224 Both Parliament and the legislature of a
state are empowered to make law with respect to a matter enumerated in
List Ill-Concurrent List.225 For parts of the territory of India not included
in 'State', i.e., the Union territories, Parliament is empowered to make law
with respect to any irrespective of the enumerations in the three lists.226 If
there is a matter which is not found in the three lists, i.e., the residue,
Parliament is empowered to make laws with respect to that matter, 227 entry
97 in List I also reads to the same effect: "Any other matter not enumerated
in List II or List III." Parliament is also empowered to establish additional
courts for the better administration of laws made by Parliament or of any
existing law with respect to a matter enumerated in the Union List.228 This
provision was necessary in order to remove the impression that by virtue of
entry 3 in List , 'Administration of Justice, Constitution and Organisation
of all courts except the Supreme Court and the High Courts,' the state alone
is empowered to set up new courts for the administration of Union laws.
The enumeration in the three lists is not based on any defined principles
except perhaps that matters of national importance but require attention of
Parliament for any reason at a later stage have been provided in the
222. State of Bombay v. R. M. D. C. AIR 1957 SC 699 and State ofBihar v. Charusila Dasi
AIR 1959 SC 1002.
223. Article 246 (1).
224. Article 246 (3).
225. Article 246 (2).
226. Article 246 (4).
227. Article 248. See Union ofIndia v. H. S. Dhillon AIR 1972 SC 1061.
228. Article 247.

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Concurrent list so that Parliament may, on its own initiative, make laws with
respect to such matter as and when necessary. By forty-second amendment
Act, 'education including university education was transferred from state list
to concurrent list. This has gained significance after incorporation of article
21A whereby free and compulsory education to all children of the age six to
fourteen years have been made fundamental right. This p a t t e r n of
distribution of power is indicative of the centralising tendency which is, of
course, the theme running throughout the Constitution.
The enumeration of subject-matters in the three lists resembles to a
great extent the pattern of distribution of power under the Canadian
Constitution except that the Concurrent List in the latter is small. However,
in America and Australia the Constitution gives the central government only
enumerated power and leaves the residue to regional governments.
U n d e r article 246 Parliament and the legislature of a state are
empowered to make a law with respect to a matter falling within the
jurisdictions allotted to them, and in the exercise of its powers one cannot
encroach u p o n the jurisdiction of a n o t h e r . H o w e v e r , there are
circumstances under which Parliament is empowered to make a law with
respect to a matter enumerated in the State List. First, under article 249 if
the Council of States declares by a resolution supported by not less than two
thirds of the members present and voting that it is necessary or expedient in
the national interest that Parliament should make a law with respect to any
matter enumerated in the State List and the matter is specified in the
resolution, it shall be lawful for Parliament to make a law with respect to
that matter while the resolution is in force. Such a resolution may remain in
force up to one year, but it may be extended for another year by another
resolution. The desirability of empowering Parliament in this way can be
justified in the context of a modern state committed to planned economy.
However, this kind of encroachment on the state's authority is not to be
found in o t h e r federal c o n s t i t u t i o n s . Secondly, u n d e r article 250
supplemented by article 353 (b) and article 354, while the proclamation of
emergency is in operation, Parliament is empowered to make a law with
respect to a matter enumerated in the State List and to impose duties upon
the Union government and its officers in the same matter. Such a law will
cease to have effect on the expiration of six months after the proclamation
ceases to have effect. There is every justification for Parliament to have
overriding authority in emergency situations. Thirdly, under article 252, if
legislatures of two or more states desire that any of the matters with respect
to which Parliament has no power to make a law should be regulated in
such states by Parliament by law and if resolutions are passed by the
legislatures of these states, it shall be lawful for Parliament to pass an Act
for regulating that matter accordingly. Once a state has requested to do so,
it cannot, on its own, withdraw subsequently. This provision is justifiable to

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meet a situation in which two or more states have a common concern and
wish to have an identical law. This -provision, it appears, has been borrowed
from the Australian Constitution. Fourthly, under article 253 in disregard of
article 246, Parliament is empowered to make a law for implementing any
treaty or convention with any foreign country or any decision made at any
international conference or association. Though entry 14 of List-I confers
on Parliament power to make law with respect to entering into treaties,
agreements and conventions with foreign countries, it is made clear that this
power enables Parliament to encroach upon the state's jurisdiction
exclusively assigned to it under article 246. This provision is based upon the
difficulties experienced in Canada. In the absence of such a provision in the
Canadian C o n s t i t u t i o n , the Privy Council held that the D o m i n i o n
government having no power to implement an obligation undertaken at an
international conventions could not validly pass such a law as the subjectmatter of the legislation fell within the classes of subjects assigned to the
provinces. 229 In Australia, the Commonwealth power over external affairs
has been interpreted to permit the Commonwealth to encroach upon the
field reserved for the states for this purpose. 230
In the process of allocating matters to Parliament and the legislature of
a state, there is bound to be overlapping of jurisdictions and likelihood of a
conflict arising in between the various entries enumerated in the three lists
of the Seventh Schedule. For resolving such conflicts, non obstinate clause has
been inserted in clauses (1), (2) and (3) of article 246 resulting in an order of
precedence among the three lists. Thus List I has priority over List II.
However, it is not the intention that such a conflict should exist, and it is
only as a last resort that the non obstinate clause should be applied. Initially,
an endeavour should be made by having recourse to the context and scheme
of the Constitution to attempt a reconciliation between the two apparent
conflicting jurisdictions by reading the two entries together and by
interpreting and, if necessary, by modifying the language of one by that of
the other. One way to reconcile the two conflicting entries, a general power
and a particular power in the same field, is to construe by reading the
general power in a more restricted sense than it can theoretically possess so
as to give effect to the particular power in its ordinary and natural meaning;
in other words, the general power ought not to be so construed as to make
a nullity of a particular power. 231 For example, item 11 of List II-education
including universities subject to the provision of item 66 of List I-empowers
the legislature of a state to prescribe the syllabi and courses of study in all
229. A. G. for Canada v. A. G. for Ontario 1937 AC 326.
230. R. v. Burgess 55 C.L.R. 608.
231. The doctrine was explained by Sir Maurice Gwyer in the context of the
Government of India Act, 1935, in re C.P. and BerarAct AIR 1939 F.C. 131, but it
is equally applicable to the corresponding provision in the present Constitution.

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INDIAN LEGAL SYSTEM

institutions including universities and as an incident thereof it has power to

indicate the medium in which instruction must be imparted, whereas item 66
of List I-co-ordination and determination of standards in institutions for
higher education-empowers Parliament to ensure that the syllabi and
courses of study prescribed in institutions of higher education including
universities and that the medium so selected do not impair standards of
education and renders the co-ordination a determination of standards or
even difficult. There is a degree of overlapping between the powers of
Parliament and the legislature of a state, and at any rate medium of
instruction for imparting education in the universities falls within the ambit
of both the entries. The conflict can be removed by reading medium of
instruction as an integral part of item 66 of List I and item 11 of List II, the
former being a particular power taking precedence over the latter being a
general power. 232 It may be noted that the fact that Parliament has not
legislated, or refrained from legislating, does not invest the legislature of a
state with the power to legislate in respect of a matter which is exclusively
assigned to Parliament. The validity of a state law has to be judged having
regard to whether it impinges on the field assigned exclusively to Parliament,
and not upon the existence of some definite Union law directed to achieve
that purpose.
However, if a subject-matter is not to be found in List II or List III, it
should be taken to have been assigned exclusively to Parliament by virtue of
entry 97 of List I read along with article 248any other matter not
enumerated in List II or List including any tax not mentioned in either of
those lists. Thus wealth tax on agricultural land, though expressly excluded
from the purview of entry 86 in List I, is a subject matter with respect to
which Parliament is validly empowered to make law as this subject-matter is
not to be found in List II or List III. 233
In a pattern of distribution of power with mutually exclusive lists,
questions arise about the competence of a legislature with regard to a
particular enactment by reference to the matter enumerated in the lists. A
law which directly encroaches upon the forbidden field is invalid. But, if the
encroachment is only incidental, it may be otherwise. For the purpose of
ascertaining whether the encroachment of a law is incidental or not, the test
of pith and substance is generally applied. If the 'pith and substance' of a
piece of legislation falls within the power expressly conferred upon the
legislature which enacted it, the legislation is not invalid merely because it
incidentally encroaches upon matters assigned exclusively to another
legislature. The degree of encroachment upon the forbidden field is relevant
232. Gujarat University v. Shri Krishna AIR 1963 SC 703. Since 'education' has been
shifted to concurrent list, this example is non illustrative only.
233. Union ofIndia v. H.S. Dhillon (1972) 2 SCC 779.

CONSTITUTIONAL LAW-

95

not for distinguishing between degrees of encroachment, but for the

purpose of determining the 'pith and substance' of the impugned law.
However, the 'pith and substance' of the impugned law is determined by
having regard to the enactment as a whole, to its object and to its scope and
the effect of its provisions. 234
A legislature must confine its activities within the limits of its authority,
and a transgression of those limits would render a piece of legislation
invalid. Such transgression may be patent, manifest or direct, but it may also
be disguised, coloured or indirect, that is, in disguise, pretence or pretext of
doing something, which is within the limits of legislative authority. A
legislature may purport to act within the limits of its authority, yet in
substance and reality it transgresses those limits, transgression being merely
a substance, and not the form or outward appearance, that is material for
unfolding the employment of indirect methods for achieving something
which is denied otherwise. However, an enquiry into the substance may
involve a search for purpose, as distinguished from motive, of the impugned
legislation; motive on the part of a legislature is of no relevance, as the
question involved in such cases relates to the competence of a legislature. In
other words, what cannot be done directly cannot be done indirectly, and
this is known as colourable legislation.235
Clause (1) of article 254 provides that if any provision of a law made by
the legislature of a state is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in the
Concurrent List, then subject to the provisions of clause (2) the law made by
Parliament, whether passed before or after the law made by the legislature
of such state, or, as the case may be, the existing law, shall prevail and the
law made by the legislature of the state shall, to the extent of repugnancy, be
void. The first part of this clause provides that a Union law shall prevail over
a state law if there is repugnancy between them; it is presumed that
Parliament and the legislature of a state are competent to make law with
respect to the subject matter of the law and the law is otherwise valid. This
is a general principle of supremacy which forms an integral part of this
concept of federation. 236
234. See generally Prafulla Kumar v. Bank of Commerce, Khulna AIR 1947 P.C. 60; State of
Bombay v. F N. Balsara AIR 1951 SC 318; D.N. Banerji v. PR. Mukherji AIR 1959
SC 58 and State ofRajasthan v. Chawla AIR 1959 SC 544.
235. G.KDeo v. State ofOrissa AIR 1953 SC 375; Anil Kumarv. Deputy Commissioner AIR
1966 SC 1577; G. Nageshwarv. A.P.S.R.T. Corporation AIR 1958 SC 308 and
Jagannath Baksh Singh v. State ofU.P. AYR 1962 SC 1563.
236. E.g., S. 109 of the Commonwealth of Australia Constitution Act, 1900. The
Canadian Constitution contains no specific provision in this regard, but the Privy
Council interpreted the scheme of the distribution of powers as giving primacy to
Dominion legislation. See A.G.for Qutario v. A.G.

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INDIAN LEGAL SYSTEM

Article 251 incorporates this principle to remove an inconsistency

arising out of a law made by Parliament either under article 249 or article
250. However, there may be other situations such as under article 253 or
article 248, beside a conflict arising between a Union law and a state law in
spite of the use of 'non obstinate' clause in article 246, which requires
application of this principle. The second part of clause (1) provides that an
existing law shall prevail over a state law if there is repugnancy between the
two laws, but the existing law should be with respect to one of the matters
enumerated in the Concurrent List. Nevertheless, by virtue of clause (2)
where a state law with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so
made by the legislature of the state shall, if it has been reserved for the
consideration of the President and has received his assent prevail in that
state 2 3 7 . It is further provided that nothing in clause (2) shall prevent
Parliament from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the legislature of a state. It is necessary that the parliamentary
legislation must deal with a subject-matter which formed the subject-matter
of an earlier legislation and clause (2) will not apply if the former dealt with
other distinct subject-matter though of cognate or allied character. 238
A repugnancy between a Union law and a state law may arise: (1) if
there is a direct conflict between the provisions of the Union law and those
of the state law so that obeying one results in disobeying the other, (2) if
Parliament intends to lay down an exhaustive code in respect of the subjectmatter replacing the state law, and (3) if the Union law and the state law
occupy the same field.239
Administrative relations
The Indian Union being federal in character, the Union and the states have
exclusive, though limited jurisdictions, but the Union being ultimately
responsible for ensuring peace and safety, maintaining law and order and
237. There is, however, another view that the entire clause (1) of article 254 is
concerned with laws made with respect to matters enumerated in the Concurrent
List. See, State of Mysore v. Md. Ismail AIR 1958 Mysore 143; State of Mysore v.
Gampappa AIR 1961 Mysore 257; Shetrataam v. Gift Tax Officer AIR 1960 A.P. 115;
B.K. Vittal v. State ofMysore AIR 1966 Mysore 138; Premnath v. State ofjammu and
Kashmir AIR 1959 S C 749; Deepchand v. State ofU.P. AIR 1959 SC 648 and C /
Gujarat University v. Sbri Krishna Mudholkar AIR 1963 SC 703.
238. Zaverbhai v. State ofBombay AIR 1954 SC 752 and Tika Ramji v. State ofU.P. AIR
1956 SC 676.
239. Deepchand v. State ofU.P. AIR 1959 SC 648. In the Australian context, see Clyde
Engineering Co. v. Cowbum (1926) 37 C.L.R. 466 and State of Victoria v. Commonwealth
(1937) 58 C.L.R. 618.

CONSTITUTIONAL LAW-H

97

providing for the rule of law throughout the country, should have adequate
power of administrative control over the states. Article 256 provides that the
executive power of a state shall be so exercised as to ensure compliance with
the laws of Parliament and existing laws which apply in that state, and that
the U n i o n may give such directions as may appear necessary for that
purpose. Article 257 further authorizes the Union to give direction to the
state in specific matters, namely, (1) the manner in which the executive
power of the state shall be exercised so as not to impede or abridge the
executive p o w e r of the U n i o n , (2) the c o n s t r u c t i o n of means of
communication declared to be of national or military importance, and (3)
measure to be taken for the protection of railways within the states. Any
failure to comply with or give effect to any direction given in the exercise of
the executive power of the Union may amount to constitutional breakdown
in the state and empower the President to issue a proclamation under article
356 thereby assuming to himself governmental functions of that state.
However, there is a departure from the federal principal in article 258 and
258A which permits the U n i o n and the states to delegate executive
functions to each other in certain matters. Article 258 empowers the
President, with the consent of the state government, to entrust to that
government, functions relating to any matter falling within the executive
power of the Union, and empowers Parliament to use the state executive
machinery for the enforcement of Union laws and for that purpose to
confer power, and impose duties upon that state in respect of the matter in
the Union and Concurrent Lists. So also article 258A empowers a state
Governor, with the consent of the Union government, to entrust to the
Union, functions relating to any matter falling within the executive powers
of the states. But an express authorization to the President under the
Constitution, such as under article 123, article 309 and article 360 cannot be
entrusted to the state as they are not powers of the Union.
In a federation conflicts of policy and interests are bound to arise
between the Union and its constituent units or between the constituent
units inter se, and a solution of such conflicts cannot be found for all time.
And yet such conflicts should not be allowed to assume proportions so as to
disrupt the unity of the country or create tensions affecting the harmony
between the Union and constituent units or between the constituent units
inter se. In anticipation the framers of the Constitution provided for the
establishment of an inter-state council, for this purpose. Under article 263,
the President is empowered to establish an inter-state council charged with
the duty of (a) inquiring into and advising upon disputes which may have
arisen between states; (b) investigating and discussing subjects in which the
U n i o n and t h e states have c o m m o n interest; or (c) m a k i n g
r e c o m m e n d a t i o n s u p o n any such subject and, in p a r t i c u l a r
recommendations for the better coordination of policy and action with
respect to that subject. However, the recommendations so made are not

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INDIAN LEGAL SYSTEM

binding on the President, and the inter-state council acts only as an advisory
body. Nevertheless, the Constitution provides a forum as a meeting ground
for the Union and the states to iron out their differences and discuss matters
of common interest. As regards disputes relating to waters of inter-state
rivers or river valleys, Parliament is empowered to create a body for solving
such disputes by virtue of article 262.240
Financial relations
In a federation, the Union and its constituent units should have adequate
finances to perform their governmental functions and, therefore, command
independent resources to meet their respective exclusive demands. Thus
distribution of power and functions should be accompanied by distribution
of resources as well. In a developing country like India with growing
financial requirements due to ever-expanding governmental activities,
financial relations between the Union and the states had to be so devised as
to be flexible to meet the stresses and strains of the growing economy of the
country as a whole. Thus after allocating taxing powers between the Union
and the state, as specified in the Seventh Schedule, the Constitution lays
down in Part XII a scheme giving general principles for the distribution of
resources. This scheme is subject to review by the Finance Commission
periodically, thus providing elasticity in the area of financial relations.
Article 265 provides that no tax shall be levied and collected except by
authority of law. N o tax can be imposed by an executive fiat or even by a
delegated authority under the law unless expressly authorised to do so. The
discretion to impose taxes is absolute and cannot be questioned in a court of
law except on grounds of constitutional prohibitions. 241 The doctrine of
implied prohibitions is available to the extent it is recognised expressly by
articles 285 and 289 which provide for the exemption of property of the
Union from state taxation and, conversely, for the exemption of property
and income of a state from Union taxation. 242
Unlike other major federations where taxing power are concurrent over
a large field, in India there is no provision for concurrent jurisdiction in List
240. The Inter State Water Disputes Act, 1956 is legislation passed under Article 262 of
the Constitution. The Act excludes the jurisdiction of the Supreme Court in
respect of a water dispute referred to the tribunal. The Supreme Court has held
that once the Central Government finds that the dispute referred to in the request
received from the State Government cannot be settled by negotiations, it becomes
mandatory for the Central Government to constitute a tribunal and to refer the
dispute to it for adjudication. See T.N. Cauvery Sangam v. Union ofIndia AIR 1990
SC 1316.
241. Ramjilal v. Income Tax Officer AIR 1951 SC 97 and Chottabhai v. Union ofIndia AIR
1951 SC 1006.
242. In re Sea Customs Act AIR 1957 SC 1760.

CONSTITUTIONAL LAW-

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III which contains no entry relating to taxation. However, List III provides
for the levy of 'fees' which is different from 'tax' when a levy is raised for a
specific purpose and is earmarked for a specific purpose and is taken for
services rendered, the levy is fee and not a tax. But when the levy is
collected as revenue and forms part of public revenue and is spent by the
government for public purposes, it is a tax. 243
For the purpose of securing an effective control over the public
expenditure of the Union and the states, article 266 brings into existence a
Consolidated Fund for the Union and a separate one for each state into
which flow all revenue receipts, all loans raised and all money received in
payment of loans. N o money out of this fund shall be appropriated except
in accordance with law and for the purpose and in the manner provided in
the Constitution. There is also a provision for public account to which all
other public money received by or on behalf of the government are credited;
these amounts are held in trust by the government and paid by the
government without prior authorisation of the legislature. In article 267
there is also a provision for the establishment of a Contingency Fund of
India and a contingency fund for each state in the nature of an imprest to
enable advances to be made out of such fund for the purpose of meeting
unforeseen expenditure pending authorisation by the legislature. For
securing compliance by the executive with the dictates of the legislature in
financial matters and for providing an opportunity to scrutinize the
expenditure incurred by the various ministries with the sanctioned amount,
article 148 provides for the appointment of Comptroller and Auditor
General of India.
A consideration of the taxing power as distributed between the Union
and the states reveal that the states would remain in the deficit with the
resources available at their disposal. Hence, a financial plan had to be
devised for the states either to share in the proceeds or to retain wholly the
yield or certain specified taxes. Keeping this aim in view, under the
Constitution the taxes levied and collected by the Union may be classified as
(i) taxes, such as customs duties, corporation tax, wealth tax, the proceeds of
which are wholly retained by the Union (ii) taxes, such as duty in respect of
succession to property, estate duty, terminal taxes on goods and passengers,
taxes on railway fares and freights, stamp duties, the net proceeds of which
are assigned to the states,244 (iii) taxes, such as income tax, the net proceeds
of which are distributed between the Union and the states245 and (iv) taxes,
such as excise duties other than on medical and toilet preparations, the
proceeds of which are distributed between the Union and the states, if

243. Jaganath v. State ofOmsa AIR 1964 S C 400.

244. Article 269.
245. Article 270.

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Parliament by law so provides. 246 Also to meet the increasing demands of

the Union, Parliament is empowered to impose a surcharge on taxes
classified in (ii) and (iii) for purpose of the Union. 2 4 7 It may thus be seen
that certain taxes, though within the jurisdiction of the Union, are either to
be shared or intended for the benefit of the states. However, taxes intended
for the benefit of the states may either be collected by the Union or in some
cases, be entrusted to the states themselves. In the former case, the net
proceeds are assigned to the states by the President after considering the
recommendation of the Finance Commission (the Finance Commission is
constituted by the President every five years or earlier, if necessary, under
article 280). It is the duty of the Finance C o m m i s s i o n to make
recommendations to the President as to (a) the distribution between the
Union and the states of the net proceeds of taxes which are to be divided
between them and the allocation of the respective shares of such proceeds;
(b) the principles which should govern the grants-in-aid of the revenue of
the states out of the Consolidated Fund of India; or (c) any other matter
referred to the commission by the President in the interests of sound
finance.
Experience of other leading federations such as Canada and Australia
shows that even after provision have been made for distribution of the
proceeds of certain taxes between the union and the constituent units, the
union was still in position to command more financial resources than the
constituent units, and it became necessary to make grants to the latter.
Under the Constitution article 275 thus provides for grants-in-aids being
made to the states in need of assistance, to be determined by Parliament by
law and different sums may be fixed for different states. The principles
which should govern the grants-in-aid of the revenue of the states are
determined by the Finance Commission as recommendations to the
President by virtue of article 280.
Article 282 empowers the Union or a state to make any grant for any
public purpose, notwithstanding that the purpose is not one with respect to
which Parliament or the legislature of a state, as the case may be, may make
laws. This being a miscellaneous provision is apparently intended to meet a
situation not otherwise provided. However, capital grants to the states to
meet commitments under the five year plans have been made under this
provision as falling within the scope of 'public purpose'.
Trade, commerce and intercourse within the territory of India
For a federal state to be effective and stable, the constituent units should
not be allowed to impose customs duties and create trade barriers at their
246. Article 272.
247. Article 271.

CONSTITUTIONAL LAW-

101

borders and any tendency to encourage economic rivalry among the

constituent units should be eliminated. The entire country should operate as
a free common market thereby exploiting, harnessing and pooling the
resources of the various regions to the advantage of all. To a great extent the
preservation of national political unity is dependent upon the preservation
of national economic fabric which transcends the boundaries of the
constituent units and prevent the emergence of regional or local barriers
through economic activity. To achieve these objects, the Constitution
provides a separate part dealing with trade, commerce and intercourse
within the territory of India. 248 The provisions of this part have been
drafted keeping in view the American and Australian experience in this
matter.
Article 301 provides that trade; commerce and intercourse shall be free
throughout the territory of India.249 The freedom so guaranteed is free from
all restriction except those which are provided in Part XIII itself. But the
general trend in the exceptions is to stress the subordination of the state to
the Union or to give predominant position to the Union in this matter. Thus
Parliament is empowered to impose such restriction on the freedom of
trade, commerce and intercourse, between one state and another or within
any part of the territory of India as may be required in public interest. 250
'Public interest' is an expression of wide connotation, and a law made by
Parliament in 'public interest' is prima facie not questionable in a court. On
the other hand, though the legislature of a state is empowered to impose
reasonable restrictions on the freedom of trade, commerce and intercourse
with or within that state as may be required in public interest; such a Bill
should obtain previous sanction of the President before its introduction in
the legislature. 251 Moreover, the restrictions so imposed by the state law
must be 'reasonable' and the 'reasonableness' of the restrictions can be
questioned in a court of law. Further, both Parliament and the legislature of
a state are prohibited from giving, or authorising the giving of, any
preference to one state over another, or making, or authorising the making
of, any discrimination between one state and another, by virtue of any entry
relating to trade and commerce. 252 But this prohibition is lifted only in the
case of Parliament if it is necessary to do so for the purpose of dealing with
a situation arising from scarcity of goods in any part of India.253 Parliament
has also been empowered to appoint an authority for carrying out the
purposes of the above-mentioned provisions and confer on this authority
248.
249.
250.
251.
252.
253.

Part XIII, articles 301-307.

Article 301.
Article 302.
Article 304 (b).
Article 303 (1).
Article 303 (2).

102

INDIAN LEGAL SYSTEM

such powers and duties as may be necessary.254

What is protected by article 301 is the freedom of 'trade, commerce and
intercourse'. The scope of the expression 'trade, commerce and intercourse'
is very wide and comprehends all kinds of trading and commercial activities
and all the instruments by which such activities are conducted. It is not
confined to the movement aspect of an activity but extends to other things
otherwise including commercial and financial transactions. A law prohibiting
forward contracts in a commodity would come within the purview of article
301 -255 However, only those activities are protected which are regarded as
lawful trading activities. Thus betting or gambling would not be regarded as
a trading activity but res extra commercium.2^ But this is not so with an
activity which is opposed to public policy. Dealing in liquor is legitimate
trade. 257 The inclusion of the word 'intercourse' along with 'trading and
commerce' has its own significance and suggests that non-trading or non
commercial dealings for personal use would also be covered by the
expression 'trade, commerce and intercourse'. 258
The freedom guaranteed by article 301 operates as a general limitation
on the legislative power and is applicable to Parliament as well as the
legislature of a state. Article 301 does not exclude within its purview tax laws
which may and do amount to restrictions on the freedom of trade,
commerce and intercourse. Though the power to impose tax is essential for
the very existence of the state, it has to be exercised within the framework
of t h e C o n s t i t u t i o n , and is, therefore, c o n t r o l l e d by the relevant
constitutional provisions including those in Part . Non obstinate clause in
article 304(a) of which taxation forms the subject-matter also lends support
to the same view.
For the purpose of examining the validity of a law by reference to article
301, it has to be considered whether the law imposes a restriction or burden
which interferes with, hampers or impedes trade, commerce and intercourse
directly and immediately. For example, a restriction on a person not to move
goods from one place to another is one which is direct and immediate,
whereas a restriction on a person to prescribe minimum wages to his
employees is one which is indirect and remote; the former is violative of the
guarantee of the freedom of trade, commerce and intercourse, whereas the
latter is indirect and remote. However, even if a law imposes a restriction or
burden which operates on trade, commerce and intercourse directly and
immediately, it may still escape the rigours of article 301 if the restriction is
regulatory or compensatory. A working test for deciding whether the
254.
255.
256.
257.
1~

Article 307.
Koteshwar v. K. R. B. & Co. AIR 1969 SC 504.
State of Bombay v. R.M.D. C. AIR 1957 SC 609.
Krishna Kumar v. State ofjammu and Kashmir AIR 1957 SC 1368.
Chobe v. Palnitkar AIR 19"4 Hyd. 207.

CONSTITUTIONAL LAW-H

103

restriction is regulatory- or compensatory is to enquire whether the measure

facilitates, instead of interfering with, hampering or impeding, the free flow
of trade, commerce and intercourse. For example, measures such as traffic
regulations or licensing of vehicles are imposed so that the traffic on roads
runs smooth and unhampered and, are therefore, regulatory. Similarly,
measures in the form of taxes which are imposed for the purpose of
providing facilities for better conduct of business, e.g., maintenance of roads,
bridges, etc., are compensatory. 259
Though article 302 empowers Parliament to impose restrictions on
freedom of trade, commerce and intercourse in the public interest, article
303 (1) prohibits it from giving preference or making discrimination
between one state and another by virtue of any entry relating to trade and
commerce. It is worth noticing that not all differences in treatment amount
to preferences and discriminations between the states. A union law applied
uniformly may in effect result in differential treatment of the states owing to
differing economic conditions prevailing in them and yet it may not come
within the prohibitions of article 303(1). For example, a law for the purpose
of imposing on inter-state sales a tax which is to be assessed, collected and
retained by the states from which the movement of goods commenced, does
not violate article 303(1) merely because of varying rates of tax prevailing in
the states. This is so because (1) the flow of trade does not depend solely on
differing rates of tax in the states but on several o t h e r factors (2)
d i s c r i m i n a t i o n n o t dependent on natural or business factors is no
discrimination, and (3) by leaving the assessment to the states from which
the movement of goods commenced discrimination is not likely to be
practised. 260
By virtue of article 304(a) the states are empowered to impose on goods
imported from other states any tax to which similar goods manufactured or
produced in that state are subject, so, however, as not to discriminate
between goods so imported and goods so manufactured or produced. 261
T h u s the states are allowed t o impose countervailing tax so that the
economy of one state is not handicapped by the free flow of goods from
another state. In other words, there is a provision for the equalisation of
b u r d e n by imposition of a tax on goods manufactured or produced
irrespective of whether the goods are manufactured or produced in one state
or another. For example, if sales tax imposed on goods imported from
259. See generally, Atiaban Tea Co. v. State ofAssam AIR 1961 SC 232; Automobile
Transport v. State ofRajasthan AIR 1962 SC 1406; State ofKerala, v. A.B. Abdul Khadir
AIR 1970 SC 1912; Good Year India Ltd. v. State ofHaryana AIR 1990 SC 781 and
Maharaja Tourist Service v. State of Gujarat AIR 1991 SC 1650.
260. State ofMadras v. Nataraja Mudaliar AIR 1969 SC 147; State ofRajasthan v. Mangilal
(1969) 2 SCC 710 and Indian Cement v. State ofAP AIR 1988 SC 567.
261. Article 304 (a).

104

INDIAN LEGAL SYSTEM

outside is higher as compared to sales tax on similar goods manufactured or

produced in a states the tax is discriminatory and violative of the concession
given to the state. 262 The imposition of tax will still be bad if the goods
manufactured or produced in the state are not subjected to any tax at all, but
this time it will be violative of the freedom of trade, commerce and
intercourse under the general provisions. 263
C o r r e s p o n d i n g t o article 302 authorising Parliament t o impose
restrictions in the public interest, article 304 (b) authorises the legislature of
a state to impose such reasonable restrictions 264 on the freedom of trade,
commerce and intercourse as may be in public interest provided prior
sanction has been obtained before a Bill is introduced in the legislature for
this purpose. This provision lets a safety valve for a state law which does not
comply with the requirements of President's prior approval of a Bill before
its introduction and is an additional control mechanism which is aimed at
ensuring uniformity of policy in all the states.
Local bodies
The Constitution, 73 r d and 74 th Amendment Acts 1992, have accorded
constitutional status to panchayats and municipalities by adding Parts IX
and IXA in the Constitution. 2 6 5 Prior to these additions, organisation,
election and administration of local bodies were governed and regulated by
respective state legislations. Their functioning was not at all satisfactory and
adhocism was prevalent. In order to strengthen grass-root democracy it was
thought prudent to accord constitutional sanctity to them. Article 40 of the
Constitution too directed states to take steps to organise village panchayats
and endow them with such powers and authority as may be necessary to
enable them to function as units of self-government.
A uniform three-tier system of Panchayats, i.e., at village, intermediate
and district level have been created throughout the country. Their term is
fixed for five years and new elections are to be held before that period
expires. There is reservation for scheduled casts/scheduled tribes and
women for the post of members as well as chairpersons. It is also provided
that all the reserved seats are to be allotted by rotation to different
262. Mehtab Majid v. State ofMadras AIR 1963 SC 928.
263. State ofMadras v. BhaUal Bhai AIR 1964 SC 1006.
264. The test of resonableness for the purpose of clause (b) of article 304 would be the
same as the test adopted for the purpose of article 19(6). See generally Tika Ramji
v. State of UP AIR 1956 SC 676; Kalyani Stores v. State ofOrissa AIR 166 SC 1686; deo
E lutronics v. State ofPunjab AIR 1990 SC 820; State of Tamil Nadu v. Sanjeetha AIR
1993 SC 237; A ndhra Steel Corporation v. Commissioner ofCommercial Tax AIR 1990 SC
1912 and Subodhaya Chit Fund (P) Ltd. v. Director of Chits AIR 1991 SC 998.
265. Anieles 243A to 243ZG (Total 33 articles) and two-schedules namely Schedule XI
and Schedule XII.

CONSTITUTIONAL LAW-

105

constituents in a panchayat. The aim of rotation may be to draw into the

political process members of vulnerable groups in all areas. The state
government is empowered to confer power upon panchayat institution to
implement schemes relating to the twenty six subjects inserted in the
Eleventh Schedule.
Similarly, three kinds of urban local authorities have been recognized by
the seventy-fourth constitutional amendment Act, viz., nagar panchayats,
municipal councils and municipal corporations. Each kind of authority is to
be established in areas termed as transitional area, smaller urban area and
larger urban area respectively. Reservation in favour of scheduled casts/
scheduled tribes and women have been provided and their term has been
fixed for five years. Election of chair-persons have been made direct.
Provision for conferral of powers and responsibilities on municipalities
by the state legislature has been made in article 243-W and the matters
which can be made the special concerns of these local bodies have been
enumerated in the Twelfth Schedule.
Emergency provisions
Under a federal constitution there is division of powers between the central
and regional governments. Any division of authority is a sign of weakness
and this becomes apparent in times of emergency which require immediate
action and mobilization of all the resources available in the country. Under
such circumstances it is likely that neither authority, central or regional,
acting singly, is in a position to meet the situation effectively, and the central
government may have to be vested with extraordinary powers uninhibited
by division of authority under normal conditions. Consequently, a federation
may be transformed into a unitary state, so that obstacles or hindrances in
the way of meeting the exigencies of emergency are removed. In America
and Australia, the emergency arising from the two world wars was met by
giving an expansive interpretation to the war or 'defence' power of the
centre giving it a wider area of operation than its peace time ambit and
enabling the centre to take steps for the effective prosecution of the war.
Similarly in Canada 'the peace, order and good government' clause was so
i n t e r p r e t e d as to confer adequate power on the centre to deal with
e m e r g e n c y such as war, pestilence etc. The framers of the Indian
Constitution did not adopt this course of judicial interpretation for making
necessary adjustments in centre-state power balance in response to an
emergency situation, but rather sought to achieve the same result by
expressly e m p o w e r i n g the U n i o n executive to issue an emergency
proclamation and providing for the necessary incidents flowing there-from.
This approach is in line with the general trend running throughout the
Constitution making detailed provisions best suited to meet the needs of the
c o u n t r y and thereby reducing the scope of judicial law making. The

106

INDIAN LEGAL SYSTEM

Constitution provides for three kinds of emergency:

(1) emergency affecting the security of the whole of India;
(2) emergency due to failure of constitutional machinery in states; and
(3) financial emergency.
Emergency affecting the security of India 266
If the President is satisfied that a grave emergency exists whereby the
security of India or of any part of its territory is threatened, whether by war
or external aggression or armed rebellion, he may, by proclamation make a
declaration to that effect. The President can issue proclamation not only
when there is actual occurrence of war or any such aggression or rebellion
but also when there is an imminent danger thereof. Such proclamation may
be varied or revoked by a subsequent proclamation. After the 44 t h
Amendment of the Constitution, various safeguards have been provided to
check the misuse and abuse of the provision.
The President shall not issue a proclamation or vary it unless the
decision of the Union Cabinet (that is to say the council consisting of the
Prime-Minister and other Ministers of cabinet rank appointed under article
75) that such a proclamation may be issued has been communicated to him
in writing. The proclamation shall cease to operate at the expiration of one
month unless before that period it has been approved by resolutions of both
Houses of Parliament. However, if the House of People is running dissolved
or dissolution takes place within one month of such proclamation, it must
be approved by Council of States and the reconstituted House of People
within one month. The approval of Parliament will give it life of six months.
T h o u g h maximum period has not been provided but it is clear that
Parliament's approval is a must for every renewal and continuance. The
proclamation can be revoked at any time by an executive fiat. It has also
been provided that one-tenth members of House of People can, by serving
a notice in writing to the speaker, if the House is in session, or to the
President, if the House is not in session, demand the special sitting of the
House so that decision may be taken on their intentions of disappointing the
continuance of the emergency.
It is also provided that the power conferred on the President shall
include the power to issue different proclamations on different grounds
being war or external aggression or armed rebellion or imminent danger
thereof whether or not there is a proclamation already issued by the
President is in operation.

266. After the bitter experience of 'emergency' imposed on 25.06.1975, provisions in

Article 356 have been thoroughly amended.

CONSTITUTIONAL LAW-

107

Consequences of proclamation of emergency

When a proclamation of emergency is in operation, various consequences
ensue. First, the executive authority of the Union extends to the giving of
directions to any state as to the manner in which the executive power
thereof is to be exercised. 267 Secondly, the power of Parliament to make
laws is enlarged so as to extend to the matters falling within the jurisdiction
of the states.268 Although the law making power of a state legislature is not
suspended during the continuance of a proclamation, a law made by it is
subject to the overriding power of Parliament. Thirdly, the financial
arrangements between the Union and the States may be altered with a view
to securing adequate revenue to the Union to meet the situations created by
emergency. 269
During the period of emergency, measures may have to be taken
affecting adversely the fundamental rights of citizens guaranteed by the
Constitution. The very existence of these rights depends upon the stability
of the state itself and any sacrifice to meet the crisis is called for. Besides,
these rights may become hindrances in taking measures which become
necessary to deal with the situation effectively. The Constitution thus
provides for the suspension of article 19, during the period of emergency,
and removes fetters on the powers of the state to make any law or to take
any executive action which the state would but for the provisions contained
in that article be competent to make or to take. As soon as emergency is
lifted, article 19 is automatically revived and begins to operate with the result
that the executive action taken or the legislative enactments passed become
inoperative to the extent to which they are inconsistent with the provisions
of article 19.
When the proclamation of emergency is in operation, the President may
by order declare that the right to move any court for the enforcement of
fundamental rights as may be mentioned in the order, and all proceedings
pending in any court for the enforcement of rights so mentioned remained
suspended for the period during which the proclamation is in force, or for a
shorter period, as may be specified in the order. Such an order may extend
to the whole or any part of the territory of India.270 The only effect of this
order is to suspend the enforcement of the right, and not the right itself,
mentioned therein in any court and it applies to proceedings under articles
32 and 226. However, a person can move the court for a writ on the ground

267. Article 353 (1). By virtue of clause 48 of the Forty-second Amendment, where a
proclamation of emergency is operating only in a part of the territory of India, the
executive power of the Union may not necessarily be confined to that part only.
268. Article 358 (2).
269. Article 354.
270. Article 359.

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INDIAN LEGAL SYSTEM

that the authorities have acted mala fide or there has been excessive
delegation. After the emergency is lifted, all things done or laws made in
contravention of the fundamental rights may perhaps be challenged in a
court by appropriate proceedings.
Failure of constitutional machinery in states
In a federal state, authority is divided between the centre and the constituent
units, and they operate independently in their respective jurisdictions.
However, the constituent units should not be permitted to abuse their
authority or subvert the provisions of the Constitution. It is, therefore,
essential that the centre should be sufficiently equipped with power to
o v e r c o m e such situations. The President is e m p o w e r e d t o issue a
proclamation on receipt of a report from the G o v e r n o r of a state or
otherwise, (1) to assume to himself all or any of the executive functions of
the government in that state, and (2) to declare that the powers of the
legislature of that state be vested in Parliament, if he is satisfied that the
government of the state cannot be carried on in accordance with the
provisions of the Constitution. 271 Such a proclamation operates for a period
of two months unless approved by Parliament before the expiration of that
period. Its maximum life is three years subject to approving its continuance
by Parliament every six months. 272 Though the proclamation may remain
effective for a period of three years by virtue of Parliament's approval but
such resolution shall not be passed by it beyond the expiration of one year
unless a proclamation of Emergency under article 352 is in operation at the
time of passing of such resolution, and the Election Commission certifies
that the continuance is necessary on account of difficulties in holding
general elections to the legislative assembly of the state concerned. 273 With
the issue of a proclamation the state legislature does not stand dissolved
immediately. It may be suspended and allowed to continue to exist so that it
comes to life as soon as the proclamation is revoked or ceases to operate.
The presidential proclamation under article 356 had been outside the
purview of judicial review till the decision in State ofRajasthan v. Union of
India,27* wherein the Supreme Court while recognising that the satisfaction
of the President was a subjective one which could be guided by political
factors, still stressed that the political colour of the question would not
coarse the court to declare a 'judicial hands-off. If the satisfaction was mala
fide or was based on wholly extraneous and irrelevant grounds the Court
would have jurisdiction to examine it. The scope of judicial review which
271.
272.
273.
274.

Article 356 (1).

Article 356 (3).
Article 356 (5).
(1977) 3SCC 592: AIR 1977 SC 1361.

CONSTITUTIONAL LAW-

109

was narrowly construed in State ofRajastban275 case has been expanded in

S.R. Bommai v. Union ofIndia.276 The nine judge-bench has unanimously held
that the Presidential power under article 356 is amenable to judicial review.
The apex court has pointed out that the power under article 356 though
based on subjective satisfaction is only conditional and not absolute. The
President can be satisfied only when a situation as laid down in the above
mentioned article exists. The President was under an obligation to consider
the advisability and necessity of the action. The court also emphasised that
in recognition of the extra-ordinary nature of the power it should not be
resorted to lightly.
Ramaswamy, J., without aiming to exhaustively catalogue diverse
situations of constitutional breakdown held that such breakdown could be
inferred from: - (i) large scale breakdown of the law and order situation, (ii)
gross mismanagement of the affairs, (iii) corruption or abuse of power, (iv)
danger of national integration, and (v) subversion of the Constitution while
professing to work under it.
Elaborating on the federal nature of the political system, the court
opined that the Constitution had created a federation but with a bias in
favour of the Centre. The predominance accorded to the centre did not
mean that the states were mere administrative units. The states were
constitutional units in their own right. The power under article 356, the
Court felt, should be so interpreted that the delicately crafted constitutional
balance is not upset. It is submitted that after this judgment there is sharp
decline in the imposition of presidential rule in states.
Financial emergency
If the President is satisfied that a situation has arisen whereby the financial
stability or credit of India or any part thereof is threatened, he may by
proclamation declare a financial emergency. 2 7 7 During the period of
proclamation of this emergency, the existing financial arrangements between
the Centre and the states may be altered by the President. Besides, the
executive authority of the Union extends to the giving of directions to any
state to observe such canons of financial propriety as may be specified in the
directions, and to the giving of such other directions as the President may
deem it necessary for maintaining financial stability and credit of the state.
Such directions may include reduction of salaries and allowances of public
servants of the state or of the Union, including judges of the Supreme Court
and the high courts and reservation of all financial and money Bills for the
consideration of the President after they are passed by the legislature of a
state. 278
275.
276.
277.
278.

Ibid
(1994) 3 SCC 1: AIR 1994 SC 1918.
Article 360.
Article 360.

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INDIAN LEGAL SYSTEM

Some independent and autonomous agencies

Our Constitution has devised certain independent and autonomous agencies
to deal with particular matters. Thus it has provided for Public Service
Commission 2 7 9 both for the Union and for the states and placed such
commissions on an independent footing so that they may discharge their
duties without being influenced by the executive. One of the things against
which we have to guard is that there should be no room as far as it is
humanly possible for jobbery, nepotism and favouritism. The main job of
these service commissions is to recommend names for appointments to
various civil posts under union as well as state governments.
The Chairman and other members of the Public Service Commission
are appointed by the President in case of Union Public Service Commission
and in case of State Public Service Commission, they are appointed by
Governor of that state. 280 The President and the Governors, as the case
may be, have power to make regulations as to their number, conditions of
service of the staff eic.2S1
We have yet another important authority, i.e., the Election Commission
whose function will be to conduct and supervise the elections to legislatures
and to take all other necessary action in connection therewith. 282 Elections
to the House of the People and to the Legislative Assemblies of states are
made on the basis of adult suffrage283 and a person shall not be ineligible
for inclusion in or to claim to be included in a special, electoral role on
grounds of religion, race, caste or sex.284
Another important authority is the Comptroller and Auditor General
(CAG) of India who will watch over finances and see to it that no part of
the revenue of India or any of the states is used for purposes and on items
without due authority and whose duty it will be otherwise to keep our
accounts in order. The CAG is the guardian of public purse and is called the
Fourth Pillar of Indian Constitution. His term is six years or upto the age of
65 years. He guides the Public Accounts Committee of Parliament. The
CAG is appointed by the President under his own hand and seal. 285 He
submits his report to the President of India and Governor of the states to be
caused t h e m to be laid before b o t h houses of Parliament and state
legislatures respectively.286
279.
280.
281.
282.

283.
284.
285.
286.

Article 315.
Article 316.
Article 318.
The superintendence, direction and control of the preparation of the electoral roles
for the conduct of all elections to Parliament and State Legislatures and for the
office of President and Vice-President are vested in the Election Commission of
India (Article 324).
Article 326.
Article 325.
Article 148.
Articles 149, 150 and 151.

CONSTITUTIONAL LAW-

111

Special provisions for some states

Special provisions have been made for the States of Maharashtra and
Gujarat under article 371; State of Nagaland under article 371A; State of
Assam under article 37IB, State of Manipur under article 37IC, State of
Andhra Pradesh under article 371D, State of Sikkim under article 371F,
State of Mizoram under article 371G, State of Arunanchal Pradesh under
article 371H and State of Goa under article 371-1 respectively.
The provisions of article 238 shall not apply to the State of Jammu and
Kashmir and the power of Parliament is limited to make laws for the State
on some transitory matters. 287
Suggested Readings
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.

Alice Jacob (ed.) Constitutional Developments Since Independence, I.L.I.

Publication, 1975.
B. Shiva Rao, The Framing ofIndia's Constitution (Set of 6 Books).
C.H. Alexandrowicz, Constitutional Developments in India, Oxford
University Press, London, 1957.
D. D. Basu, Commentary on the Constitution of India, 7th ed., Kamal Law
House, Calcutta, 1997.
D.D. Basu, Shorter Constitution ofIndia, 13lh ed., Wadhwa Pub., Nagpur,
2004.
D. K. Sen, A Comparative Study of the Indian Constitution, Orient
Longmans, Bombay, 1966.
Granville Austin, Tloe Indian Constitution: Cornerstone of a Nation,
Clarendon Press, Oxford, 1966.
H.M. Seervai, Constitutional Law ofIndia, 14th ed., 3 vols, Universal Law
Pub., New Delhi, 2005.
M.C.J. Kagzi, The Constitution ofIndia, 3 r d ed., Metropolitan, Delhi, 1975.
M. P. Jain, Indian Constitutional Law, 5 th ed., Tripathi, Bombay, 2005.
M.V. Pylee, Constitutional Amendments in India, Universal Law Pub., Delhi,
2003.
M.V. Pylee, Constitutional Government in India, 3 ed., Asia Publishing
House, Delhi, 1977.
M.V. Pylee, Select Constitutions ofthe World.
P. K. Tripathi, Spotlights on Constitutional Interpretation, Tripathi, Bombay,
1972.
P.M. Bakshi, The Constitution ofIndia, 5 th ed., Universal Publishers, Delhi,
2004.
T. K. Tope, The Constitution ofIndia, 3 rd ed., Popular Prakashan, Bombay,
1971.
V. N . Shukla, The Constitution of India, 9 th ed., Eastern Book House,
Lucknow, 1994.

287. Article 370.