Constitutional Law - I

Constitutional Law – I
About the Course
Constitutional Law is one of the most basic law courses that is pursued by a law student
anywhere in the world. It makes a student aware of the individual rights and duties as well as the
structures of governance. This course helps a student to appreciate the working of the Indian
Constitution both in terms of how the different provisions have been interpreted by courts and
also in terms of how other factors – political, social and economic has shaped the course of the
Indian Constitutional journey.
In NUJS, the Constitutional Law Course is spread across two semesters. In the first semester,
the primary focus is on the structures of governance. Thus, issues like the three organs of
governance, constitutional amendments and the Basic Structure Doctrine, centre-state relations
etc. are discussed. The second part of the course discusses the more individual-centric themes
like Fundamental Rights, Directive Principles and Fundamental Duties.
Course Objectives
 To acquaint the students with the evolution of constitutional principles

 To throw light on how socio-political factors have impacted our constitutional journey
 To contrast the Indian constitutional positions with constitutions of other nations
Methodology
The Course will be conducted predominantly through the classroom method, in a participatory
manner. The trajectory of the constitutional evolution of doctrines and principles will be
primarily covered by looking at case law. In the process, apart from the Course Teacher
discussing some cases in class, the students will also be required to make case presentations.
Evaluation pattern
Project: 25 marks
Project Viva: 5 marks
Mid-semester Examination: 20 marks
End-semester Examination: 50 marks
Course Contents
Module One: Introduction to the Constitution
Brief History
The Idea of Constitutionalism/ Aims and objectives
Features of the Constitution Commented [RE1]: Written Constitution, flexibility,

parliamentary form, adult suffrage, judicial review, etc. are topics
that should be added under the salient features of the constitution.
Cases: Formatted: Justified, Line spacing: 1.5 lines, No bullets or

numbering
a. Delhi Laws Act, 1912, Re

b. Virendra Singh v. State of UP
c. In Re Berubari Union Formatted: List Paragraph, Justified, Line spacing: 1.5 lines,
Numbered + Level: 1 + Numbering Style: a, b, c, … + Start
at: 1 + Alignment: Left + Aligned at: 0.5" + Indent at: 0.75"
d. Keshavananda Bharati (only that part that is relevant to the question as to whether
the Preamble is a part of the Constitution).
e. Excel Wear v. Union of India (On interpretation of the word ‘socialist’)
f. S.R. Bommai v. Union of India (On interpretation of the word ‘secular’)
g. Nandini Sundar v. Union of India (On interpretation of the word ‘fraternity’)
Module Two: Amending the Constitution
 Parliamentary Power of Amendment vis. a vis. Constituent Power

 The Basic Structure Doctrine: Kesavananda Bharati v. State of Kerala
 Post Kesavananda Bharati Developments
 Procedure of amendment
Cases: Formatted: Normal, Justified, Line spacing: 1.5 lines, No

bullets or numbering
a. Keshavananda (Summary only) Formatted: Normal, Justified, Line spacing: 1.5 lines,
at: 1 + Alignment: Left + Aligned at: 1" + Indent at: 1.25"
b. Minerva Mills v. Union of India
c. Waman Rao v. Union of India
d. M. Nagaraj v. Union of India Formatted: Normal, Justified, Line spacing: 1.5 lines,
at: 1 + Alignment: Left + Aligned at: 1" + Indent at: 1.25"
e. I.R. Coelho v. State of Tamil Nadu
a.f. Madras Bar Association Case (On the interface of ordinary legislations and
the Basic Structure Doctrine)
Module Three: Organs of Governance
Part I: The Judiciary
1.1. Judicial Appointments and transfer
Cases:
a. In re Presidential Reference (Third Judges’ Case)
b. Supreme Court Advocates on Record Association v. Union of India (NJAC Case)
1.2. Judicial Independence and Review
Cases:
a. Shanti Bhushan v. Union of India
b. L. Chandrakumar v. Union of India (On Judicial Review as a part of Basic Structure)
1.3. Jurisdiction of the Courts
1.3.1. Original Jurisdiction of the Courts

Cases:
a. State of Rajasthan v. Union of India
b. State of Karnataka v. Union of India
1.3.2. Nature of Appellate Jurisdiction of the Supreme Court
Cases:
a. Article 132: T. M. Krishnaswami Pillai v. Governer General in Concil
b. Article 133: Madan Gopal v. State of Orissa
c. Article 134: Tarachand Damu Sutar v. State of Maharashtra
d. Certificate of Appeal: Siddheshwar Ganguly v. State of WB
e. Article 137: Eswara Iyer v. Registrar, Supreme Court of India
f. Curative Petition: Rupa AshokeHurra v. Ashoke Hurrah
1.3.3. Special Leave Petitions
Cases:
a. Pritam Singh v. State
b. Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.
1.4 Power to do complete justice
Cases:
a. Supreme Court Bar Association v. Union of India
b. Delhi Judicial Service Association v. State of Gujarat
1.5 Advisory jurisdiction
Cases:
a. Kerala Education Bill, 1957, Re
b. Special Courts Bill, 1978, Re

1.6. Jurisdiction of the High Courts
Cases:
a. Nagendra Nath Bora v. Commissioner of Hills Division
b. State of Uttar Pradesh v. Mohd. Nooh
c. A.K. Kraipak v. Union of India
d. Barium Chemicals Ltd. v. Company Law Board
e. Union of India v. Tulsiram Patel
f. Election Commission of India v. Subramanian Swamy
g. Om Kumar v. Union of India
1.7. Tribunals
Cases:
a. L. Chandrakumar v. Union of India (On Tribunals in particular)
b. Union of India v. R. Gandhi
c. Madras Bar Assn. v. Union of India (National Tax Tribunal case)
Part II: The Executive
2.1 Parliamentary form of Governance and the limits of executive discretion
Cases:
a. Ram Jawaya Kapoor v. State of Punjab
b. UNR Rao v. Indira Gandhi
c. Samsher Singh v. State of Punjab
2.2 Position of the President and Governor
Cases:
a. B.P. Singhal v. Union of India
2.3 Power of Pardon
Cases:
a. Kehar Singh v. State (Delhi Admn)
b. Maru Ram v. Union of India
c. Epuru Sudhakar v. State of AP
2.4 Promulgation of Ordinances
Cases:
a. A.K. Roy v. Union of India
b. T. Venkata Reddy v. State of Andhra Pradesh
c. D.C. Wadhwa v. State of Bihar

d. Krishna Kumar Singh v. State of Bihar
2.5 Council of Ministers – Qualifications and Disqualifications
Cases:
a. B.R. Kapur v. State of Tamil Nadu
Part III: The Legislature
3.1 Composition and Disqualifications
Cases:
a. R.C. Poudyal v. Union of India
b. KuldeepNayar v. Union of India
c. Jaya Bachchan v. Union of India
3.2 Powers, Privileges and Immunity of Members

Cases:
a. Under Article 143 (Keshav Singh’s Case)
b. P.V. Narasimha Rao v. State/ CBI
c. Raja Ram Pal Singh v. Hon’ble Speaker, Lok Sabha
3.3 Defection
Cases:
a. Kihoto Hollohan v. Zachillu
b. Nabam Rabia v. Deputy Speaker (Arunachal Assembly case)
Module Four: Centre- State Relations:
4.1 The Concept of Federalism
Cases:
a. State of West Bengal v. Union of India
b. State of West Bengal v. Committee for Protection of Democratic Rights
4.2 Legislative Relations between Union and States
Principles and Cases:
a. Territorial Nexus (State of Bihar v.CharusilaDasi, GVK Industries v. ITO)
b. Harmonious Construction (Gujarat University v. Krishna RanganathMudholkar)
c. Pith and Substance (State of Rajasthan v. G. Chawla)
d. Colourable Legislations (State of Kerala v. Moopil Nair)
e. Residuary Powers (Union of India v. HS Dhillon)
f. Repugnancy (Hoechst Pharmaceuticals v. State of Bihar, Zaverbhai v. State of

Bombay, Deep Chand v. State of UP, M. Karunanidhi v. Union of India)
4.3 Administrative Relations between Union and States
Cases:
a. Sarbananda Sonowal v. Union of India
b. Naga People’s Movement of Human Rights v. Union of India
4.4 Financial Relations between Union and States
Cases:
a. Kewal Krishan Puri v. State of Punjab
b. Sea Customs Act, 1878, Section 20 (2), Re
c. NDMC v. State of Punjab
4.5 Imposition of President’s Rule
Cases:
a. S.R. Bommai v. Union of India (On the Sarkaria recommendations)
b. Rameshwar Prasad v. Union of India
Module Five: Freedom of Trade, Commerce and Intercourse throughout the territory of
India
Cases to be discussed in this context:
a. Atiabari Tea Co. Ltd. v. State of Assam
b. Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan
c. Jindal Stainless Ltd. v. State of Haryana
d. G.K. Krishnan v. State of Tamil Nadu
Readings
Apart from a case summary of all the cases discussed, the students are required to read
commentaries on Constitutional Law. For this purpose, one may refer to commentaries by
eminent authors like Durgadas Basu, M.P. Jain, V.N. Shukla etc. For finer nuances about the
interpretation of concepts, the relevant portions from H.M. Seervai is the best guide. Apart from
this, a student is expected to read relevant chapters from The Oxford Handbook of Indian
Constitution (Sujit Chowdhary et al eds.) as a mandatory reading.
For a deeper understanding of the political and other backgrounds of the Constitutional
developments, the students are recommended to refer to two books by Granville Austin – Indian
Constitution: Cornerstone of a Nation and Working a Democratic Constitution.
In addition, it is encouraged for a greater understanding of contemporary developments in

Constitutional legal jurisprudence that students regularly read blogposts from
indconlawphil.blogspot.com, lawandotherthings.com etc.
AMENDMENT
TO THE
CONSTITUTION
AMENDMENT TO THE CONSTITUTION
Introduction
This Chapter discusses one of the most crucial issues that determines the robustness of a
Constitution. It also acts as a clear indicator as to whether a constitution is static or dynamic –
whether it can compete with corresponding social transformations. The issue in hand for
discussion is the issue of amendment of the constitution.
Ever since the Indian Constitution came into existence, we have seen a constant focus on
amending the constitution, based on the need of the hour. Sometimes, such amendments were
necessitated by judicial decisions which the Government considered to be inappropriate
impediments on the way of their constitutional visions. Therefore, amendments were moved
trying to restrict the judiciary’s reach. In this way, several constitutional amendments
(especially on the issues surrounding Right to Property) had been made in the first two
decades of our constitutional existence.
While these constitutional amendments were made, two critical questions arose. First,
whether the Parliament has an unlimited amending power. In other words, can the parliament
amend the constitution to any extent, including the Fundamental Rights and the core
constitutional values? The second question that flows from the first is: whether a
constitutional amendment can be called a ‘law’ within the meaning of Article 13. This
question was pertinent because there were arguments that constitutional amendments were
mere exercises of the legislative powers of the Parliament, and therefore, such ‘laws’ would
be required to be in conformity with the Fundamental Rights enshrined in Part III of the
Constitution. Through a trajectory of cases (and amendments preceding and/or succeeding
them), the Supreme Court came to a final determination of the said questions in the
Kesavananda Bharati case that the Parliament’s unlimited amending power is subject to what
the Learned Judges (primarily Khanna, J.) decided to call the ‘Basic Structure’ of the
Constitution.
This Chapter discusses some of these cases dealing with Amendment and the Basic Structure
which bring up very substantial constitutional questions to be answered by the Courts.
On Constitutional Amendment and the Basic Structure
Case: Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Coram: Sikri,
C.J., Shelat, Hegde, Grover, Ray, Jaganmohan Reddy, Palekar, Khanna,
Mathew, Beg, Dwidedi, Mukherjea, Chandrachud, JJ.)
After the Supreme Court Judgement in Golaknath’s case where Subba Rao, C.J., had
held that Fundamental Rights were beyond the Parliament’s powers of making
Constitutional Amendments, a number of amendments were made to dilute and
overrule its impact. Specifically put, the 24th, 25th and 29th Amendments were up for
immediate challenge. Of these, the 24th Amendment clearly spelt out that
constitutional amendments are made by exercise of the constituent power, as opposed
to the legislative power, of the Parliament, and that the Parliament has an unlimited
amending power, not restricted by any requirement to conform to Fundamental Rights
or any other provision. 25th Amendment immunised laws made in pursuance of
certain social justice policies enshrined in the DPSPs from Judicial Review. The 29th
Amendment, which was the immediate trigger to the Kesavananda dispute, had put
several laws, including a Kerala Land Reform Law, into the ninth Schedule of the
Constitution. Thus, the constitutional validity of all these amendments was called up
for question in arguably one of the world’s most significant constitutional decisions.
In this discussion, we would specifically focus on the aspect of Basic Structure (and
Basic Features) as put forward by 7 of the 13 judges, and eventually discuss the
summary of the findings of the Bench (interestingly, signed by only 9 out of the 13
judges). While summarising the judgement, we will look at the epoch-making
judgement of Khanna, J., which proved to be the clincher, so far as the determination
of the majority opinion was concerned.
Per Khanna, J.:
[After traversing the trajectory of cases preceding Kesavananda, the Learned Judge
dismantled the main reasoning of the majority in Golaknath that constitutional
amendments are laws and any such legislative process leading to change in the
content of laws has to be subservient to the Fundamental Rights, and that the
unamended Article 368 only contained the ‘procedure’ to amend the constitution, the
‘power’ lying somewhere else. The Learned Judge, pointing out the logical loopholes
in the above proposition, moved on to the primary question on whether the amending
power of the Parliament is absolute. He opined:]
Question then arises as to whether there is any power under Article 368 of amendment
of Part III so as to take away or abridge fundamental rights. In this respect we find
that Article 368 contains provisions relating to amendment of the Constitution. No
words are to be found in Article 368 as may indicate that a limitation was intended on
the power of making amendment of Part III with a view to take away or abridge
fundamental rights. On the contrary, the words used in Article 368 are that if the
procedure prescribed by that article is complied with, the Constitution shall stand
amended. The words "the Constitution shall stand amended" plainly cover the various
articles of the Constitution, and I find it difficult in the face of those clear and
unambiguous words to exclude from their operation the articles relating to
fundamental rights in Part III of the Constitution. It is an elemental rule of
construction that while dealing with a Constitution every word is to be expounded in
its plain, obvious and commonsense unless the context furnishes some ground to
control, qualify or enlarge it and there cannot be imposed upon the words any
recondite meaning or any extraordinary gloss. It has not yet been erected into a legal
maxim of Constitutional construction that words were meant to conceal thoughts. If
framers of the Constitution had intended that provisions relating to fundamental rights
in Part III be not amended, it is inconceivable that they would not have inserted a
provision to that effect in Article 368 or elsewhere. I cannot persuade myself to
believe that the framers of the Constitution deliberately used words which cloaked
their real intention when it would have been so simple a matter to make the intention
clear beyond any possibility of doubt.
[He further substantiated this proposition by analysing the visions of the constitutional
founding fathers by drawing references to the Constituent Assembly Debates, and the
use of the doctrine of contemporaneous exposition, by referring to the fact that the
First Amendment to the Indian Constitution, which made significant amendments to
the Fundamental Rights Chapter was made by the Provisional Parliament, whose
members were none other than the members of the Constituent Assembly
themselves].
The next question which arises for consideration is whether the word "law" in Article
13(2) includes amendment of the Constitution. [...] I find it difficult to accept the
contention that an amendment of Constitution made in accordance with Article
368 constitutes law for the purpose of Article 13(2). The word "law" although referred
to in a large number of other articles of the Constitution finds no mention in Article
368. According to that article, the Constitution shall stand amended in accordance
with the terms of the Bill after it has been passed in compliance with the provisions of
that article. Article 368 thus contains an indication that what follows as a result of the
compliance with Article 368 is an amendment of the Constitution and not law in the
sense of being ordinary legislation. In a generic sense, "law" would include
Constitutional laws, including amendment of the Constitution, but that does not seem
to be the connotation of the word "law" as used in Article 13(2) of the Constitution.
There is a clear distinction between statutory law made in exercise of the
legislative power and Constitutional law which is made in exercise of the
constituent power and the distinction should not be lost sight of. A Constitution is
the fundamental and basic law and provides the authority under which ordinary law is
made. The Constitution of West Germany, it may be stated, is called the basic law of
the Federal Republic of Germany. A Constitution derives its authority generally from
the people acting in their sovereign capacity and speaking through their
representatives in a Constituent Assembly or Convention. It relates to the structure of
the government, the extent and distribution of its powers and the modes and principles
of its operation, preceding ordinary laws in the point of time and embracing the
settled policy of the nation. A statute on the other hand is law made by the
representatives of the people acting in their legislative capacity, subject to the superior
authority, which is the Constitution. Statutes are enactments or rules for the
government of civil conduct or for the administration or for the defence of the
government. They relate to law and order, criminal offences, civil disputes, fiscal
matters and other subjects on which it may become necessary to have law. Statutes
are quite often tentative, occasional, and in the nature of temporary expedients.
Article 13(2) has reference to ordinary piece of legislation. It would also, in view of
the definition given in Clause (a) of Article 13(3), include any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having in the territory of India the
force of law. The Constitution has thus made it clear in matters in which there could
be some doubt as to what would constitute "law". If it had been the intention of the
framers of the Constitution that the "law" in Article 13 would also include
Constitutional law including laws relating to the amendment of Constitution, it is not
explained as to why they did not expressly so state in Clause (a) of Article 13(3). [...]
[The Learned Judge referred to several articles of the Constitution to underline his
proposition that constitutional amendments are not ‘laws’ within the meaning of
Article 13. The natural corollary of this proposition is that they are not restricted by
Part III of the Constitution. But, does it mean that the Parliament’s amending power is
absolute and unfettered. On this point, he opined:]
The next question which should now engage our attention is about the necessity of
amending the Constitution and the reasons which weighed with the framers of the
Constitution for making provision for amendment of the Constitution. A Constitution
provides the broad outlines of the administration of a country and concerns itself with
the problems of the Government. This is so whether the Government originates in a
forcible seizure of power or comes into being as the result of a legal transfer of power.
At the time of the framing of the Constitution many views including those emanating
from conflicting extremes are presented. In most cases the Constitution is the result of
a compromise between conflicting views. Those who frame a Constitution cannot be
oblivious of the fact that in the working of a Constitution many difficulties would
have to be encountered and that it is beyond the wisdom of one generation to hit upon
a permanently workable solution for all problems which may be faced by the State in
its onward march towards further progress. Sometimes a judicial interpretation may
make a Constitution broad-based and put life into the dry bones of a Constitution so
as to make it a vehicle of a nation's progress. Occasions may also arise where judicial
interpretation might rob some provision of a Constitution of a part of its efficacy as
was contemplated by the framers of the Constitution. If no provision were made for
the amendment of the Constitution, the people would be left with no remedy or means
for adapting it to the changing need of times and would per force have recourse to
extra-Constitutional methods of changing the Constitution. The extra-Constitutional
methods may sometimes be bloodless but more often they extract a heavy toll of the
lives of the citizen and leave a trail of smouldering bitterness. A State without the
means of some change, as was said by Burke in his Reflections on Revolution, is
without the means of its conservation. Without such means it might even risk the loss
of that part of the Constitution which it wished the most religiously to preserve. [He
went on to refer to more scholarly literature and historical references on the need to
balance such change with the need for conservation, and observed:]
The machinery of amendment, it has been said, should be like a safety valve, so
devised as neither to operate the machine with too great facility nor to require, in
order to set it in motion, an accumulation of force sufficient to explode it. In arranging
it, due consideration should be given on the one hand to the requisities of growth and
on the other hand to those of conservatism. The letter of the Constitution must neither
be idolized as a sacred instrument with that mistaken conservatism which ding to its
own worn out garments until the body is ready to perish from cold, nor yet ought it to
be made a plaything of politicians, to be tampered with and degraded to the level of
an ordinary statute.
The framers of our Constitution were conscious of the desirability of reconciling the
urge for change with the need of continuity. They were not oblivious of the
phenomenon writ large in human history that change without continuity can be
anarchy; change with continuity can mean progress; and continuity without change
can mean no progress. The Constitution-makers have, therefore, kept the balance
between the danger of having a non-amendable Constitution and a Constitution which
is too easily amendable. It has accordingly been provided that except for some not
very vital amendments which can be brought about by simple majority, other
amendments can be secured only if they are passed in each House of Parliament by a
majority of the total membership of that House and by a majority of not less than two-
thirds of the members of each House present and voting. Provision is further made
that in respect of certain matters which affect the interest of the States the amendment
must also be ratified by the legislatures of not less than one half of the States by
resolution to that effect. It can, therefore, be said that while a provision has been
made for amendment of the Constitution, the procedure for the bringing about
of amendment is not so easy as may make it a plaything of politicians to be
tampered with and degraded to the level of ordinary statute. The fact that during
the first two decades after the coming into force of the Constitution the amending
Bills have been passed without much difficulty with requisite majority is a sheer
accident of history and is due to the fact that one party has happened to be in absolute
majority at the Centre and many of the States. This circumstance cannot obliterate the
fact that in normal circumstances when there are well balanced parties in power and in
opposition the method of amending the Constitution is not so easy.
Another circumstance which must not be lost sight of is that no generation has
monopoly of wisdom nor has any generation a right to place fetters on future
generations to mould the machinery of government and the laws according to their
requirements. Although guidelines for the organization and functioning of the future
government may be laid down and although norms may also be prescribed for the
legislative activity, neither the guidelines should be so rigid nor the norms so
inflexible and unalterable as should render them to be incapable of change, alteration
and replacement even though the future generations want to change, alter or replace
them. The guidelines and norms would in such an event be looked upon as fetters and
shackles upon the free exercise of the sovereign will of the people in times to come
and would be done away with by methods other than Constitutional. It would be
nothing short of a presumptuous and vain act and a myopic obsession with its own
wisdom for one generation to distrust the wisdom and good sense of the future
generation and to treat them in a way as if the generations to come would not be sui
juris. The grant of power of amendment is based upon the assumption that as in other
human affairs, so in Constitutions, there are no absolutes and that the human mind can
never reconcile itself to fetters in its quest for a better order of things. Any fetter
resulting from the concept of absolute and ultimate inevitably gives birth to the urge
to revolt. [...]
[In this context, he also looks at the scope of the word ‘amendment’ in Article 368.
According to him:]
We may now deal with the question as to what is the scope of the power of
amendment under Article 368. This would depend upon the connotation of the word
"amendment". Question has been posed during arguments as to whether the power to
amend under the above article includes the power to completely abrogate the
Constitution and replace it by an entirely new Constitution. The answer to the above
question, in my opinion, should be in the negative. I am further of the opinion that
amendment of the Constitution necessarily contemplates that the Constitution has not
to be abrogated but only changes have to be made in it. The word "amendment"
postulates that the old Constitution survives without loss of its identity despite the
change and continues even though it has been subjected to alterations. As a result of
the amendment, the old Constitution cannot be destroyed and done away with; it is
retained though in the amended form. What then is meant by the retention of the
old Constitution? It means the retention of the basic structure or framework of
the old Constitution. A mere retention of some provisions of the old Constitution
even though the basic structure or framework of the Constitution has been destroyed
would not amount to the retention of the old Constitution. Although it is permissible
under the power of amendment to effect changes, howsoever important, and to
adapt the system to the requirements of changing conditions, it is not permissible
to touch the foundation or to alter the basic institutional pattern. The words
"amendment of the Constitution" with all their wide sweep and amplitude
cannot have the effect of destroying or abrogating the basic structure or
framework of the Constitution. It would not be competent under the garb of
amendment, for instance, to change the democratic government into dictatorship or
hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the
Rajya Sabha. The secular character of the state according to which the state shall not
discriminate against any citizen on the ground of religion only cannot likewise be
done away with. Provision regarding the amendment of the Constitution does not
furnish a pretence for subverting the structure of the Constitution nor can Article
368 be so construed as to embody the death wish of the Constitution or provide
sanction for what may perhaps be called its lawful harakiri. Such subversion or
destruction cannot be described to be amendment of the Constitution as contemplated
by Article 368.
[He outlined the relevance and ambit of the Basic Structure thus:]
It has not been disputed during the course of arguments that the power of amendment
under Article 368 does not carry within itself the power to repeal the entire
Constitution and replace it by a new Constitution. If the power of amendment does
not comprehend the doing away of the entire Constitution but postulates retention or
continuity of the existing Constitution, though in an amended form, question arises as
to what is the minimum of the existing Constitution which should be left intact in
order to hold that the existing Constitution has been retained in an amended form and
not done away with. In my opinion, the minimum required is that which relates to the
basic structure or framework of the Constitution. If the basic structure is retained,
the old Constitution would be considered to continue even though other
provisions have undergone change. On the contrary, if the basic structure is
changed, mere retention of some articles of the existing Constitution would not
warrant a conclusion that the existing Constitution continues and survives.
[In conclusion, he observed:]
Subject to the retention of the basic structure or framework of the Constitution,

I have no doubt that the power of amendment is plenary and would include
within itself the power to add, alter or repeal the various articles including those
relating to fundamental rights. [...]
The word "amendment" in Article 368 must carry the same meaning whether the
amendment relates to taking away or abridging fundamental rights in Part III of the
Constitution or whether it pertains to some other provision outside Part III of the
Constitution. No serious objection is taken to repeal, addition or alteration of
provisions of the Constitution other than those in Part III under the power of
amendment conferred by Article 368. The same approach, in my opinion, should hold
good when we deal with amendment relating to fundamental rights contained in Part
III of the Constitution. It would be impermissible to differentiate between scope
and width of power of amendment when it deals with fundamental right and the
scope and width of chat power when it deals with provisions not concerned with
fundamental rights.
[He used the Basic Structure Doctrine to test the constitutional validity of the 24th,
25th and 29th Constitutional Amendments. He found that apart from the second part of
the 25th Amendment (the last part of Article 31C which says that no court would be
competent to look into the question as to whether a particular law is in pursuance of
Article 39(b) or 39(c) of the Constitution), he found that none of the other impugned
Amendments violated the Basic Structure. He finally held:]
(i) Article 368 contains not only the procedure for the amendment of the Constitution
but also confers the power of amending the Constitution.
(ii) Entry 97 in List I of the Seventh Schedule of the Constitution does not cover the
subject of amendment of the Constitution.
(iii) The word "law" in Article 13(2) does not include amendment of the Constitution.
It has reference to ordinary piece of legislation. It would also in view of the definition
contained in Clause (a) of Article 13(3) include an ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the force of
law.
(iv) Provision for amendment of the Constitution is made with a view to overcome the
difficulties which may be encountered in future in the working of the Constitution. No
generation has a monopoly of wisdom nor has it a right to place fetters on future
generations to mould the machinery of governments. If no provision were made for
amendment of the Constitution, the people would have recourse to extra-
Constitutional method like revolution to change the Constitution.
(v) Argument that Parliament can enact legislation under entry 97 List I of Seventh
Schedule for convening a Constituent Assembly or holding a referendum for the
purpose of amendment of Part III of the Constitution so as to take away or abridge
fundamental rights is untenable. There is no warrant for the proposition that as the
amendments under Article 368 are not brought about through referendum or passed in
a Convention the power of amendment under Article 368 is on that account subject to
limitations.
(vi) The possibility that power of amendment may be abused furnishes no ground for
denial of its existence. The best safeguard against abuse of power is public opinion
and the good sense of the majority of the members of Parliament, It is also not correct
to assume that if Parliament is held entitled to amend Part III of the Constitution, it
would automatically and necessarily result in abrogation of all fundamental rights.
(vii) The power of amendment under Article 368 does not include power to abrogate
the Constitution nor does it include the power to alter the basic structure or framework
of the Constitution. Subject to the retention of the basic structure or framework of the
Constitution, the power of amendment is plenary and includes within itself the power
to amend the various articles of the Constitution, including those relating to
fundamental rights as well as those which may be said to relate to essential features.
No part of a fundamental right can claim immunity from amendatory process by being
described as the essence or core of that right. The power of amendment would also
include within itself the power to add, alter or repeal the various articles.
(viii) Right to property does not pertain to basic structure or framework of the
Constitution.
(ix) There are no implied or inherent limitations on the power of amendment apart
from those which inhere and are implicit in the word "amendment". The said power
can also be not restricted by reference to natural or human rights. Such rights in order
to be enforceable in a court of law must become a part of the statute or the
Constitution.
(x) Apart from the part of the Preamble which relates to the basic structure or
framework of the Constitution, the Preamble does not restrict the power of
amendment.
(xi) The Constitution (Twenty fourth Amendment) Act does not suffer from any
infirmity and as such is valid.
(xii) The amendment made in Article 31 by the Constitution (Twenty fifth

Amendment) Act is valid.
(xiii) The first part of Article 31C introduced by the Constitution (Twenty fifth
Amendment) Act is valid. [...]
(xiv) The second part of Article 31C contains the seed of national disintegration and is
invalid on the following two grounds:
(1) It gives a carte blanche to the Legislature to make any law violative of Articles 14,
19 and 31 and make it immune from attack by inserting the requisite
declaration. Article 31C taken along with its second part gives in effect the power to
the Legislature, including a State Legislature, to amend the Constitution in important
respects.
(2) The legislature has been made the final authority to decide as to whether the law
made by it is for objects mentioned in Article 31C. The vice of second part of Article
31C lies in the fact that even if the law enacted is not for the object mentioned
in Article 31C, the declaration made by the Legislature precludes a party from
showing that the law is not for that object and prevents a court from going into the
question as to whether the law enacted is really for that object. The exclusion by
Legislature, including a State Legislature, of even that limited judicial review strikes
at the basic structure of the Constitution. The second part of Article 31C goes beyond
the permissible limit of what constitutes amendment under Article 368.
The second part of Article 31C can be severed from the remaining part of Article
31C and its invalidity would not affect the validity of remaining part. I would,
therefore, strike down the following words in Article 31C:
“and no law containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to such
policy”.
(xv) The Constitution (Twenty ninth Amendment) Act does not suffer from any
infirmity and as such is valid.
[The other Judges in the majority contributed to the list of the Basic Features that
form the Basic Structure. To briefly Catalogue them with reference to the Learned
Judge who gave them out, would be worthwhile in this context].
Per Sikri, C.J.:
The true position is that every provision of the Constitution can be amended provided
in the result the basic foundation and structure of the Constitution remains the same.
The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The above structure is built on the basic foundation, i.e., the dignity and freedom of
the individual. This is of supreme importance. This cannot by any form of amendment
be destroyed.
Per Shelat and Grover, JJ.:
The basic structure of the Constitution is not a vague concept and the apprehensions
expressed on behalf of the respondents that neither the citizen nor the Parliament
would be able to understand it are unfounded. If the historical background, the
Preamble, the entire scheme of the Constitution, the relevant provisions thereof
including Article 368 are kept in mind there can be no difficulty in discerning that the
following can be regarded as the basic elements of the Constitutional structure. (These
cannot be catalogued but can only be illustrated).
1. The supremacy of the Constitution.
2. Republican and Democratic form of Government and sovereignty of the country.
3. Secular and federal character of the Constitution.
4. Demarcation of power between the legislature, the executive and the judiciary.
5. The dignity of the individual (secured by the various freedoms and basic rights in
Part III and the mandate to build a welfare State contained in Part IV.
6. The unity and the integrity of the nation.
Per Hegde and Mukherjea, JJ.:
[They did not specify any feature to be basic. However, they observed:]
Though the power to amend the Constitution under Article 368 is a very wide power,
it does not yet include the power to destroy or emasculate the basic elements or the
fundamental features of the Constitution.
Per Jaganmohan Reddy, J.:
[The Learned put a lot of emphasis on the Preamble of the Constitution. He

observed:]
There is nothing vague or unascertainable in the preamble and if what is stated therein
is subject to this criticism it would be equally true of what is stated in Article
39(b) and (c) as these are also objectives fundamental in the governance of the
country which the State is enjoined to achieve for the amelioration and happiness of
its people. The elements of the basic structure are indicated in the preamble and
translated in the various provisions of the Constitution. The edifice of our
Constitution is built upon and stands on several props, remove any of them, the
Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice,
social, economic and political; (3) Liberty of thought, expression, belief, faith and
worship; (4) Equality of status and of opportunity. Each one of these is important and
collectively they assure a way of life to the people of India which the Constitution
guarantees. To withdraw any of the above elements the structure will not survive and
it will not be the same Constitution, or this Constitution nor can it maintain its
identity, if something quite different is substituted in its place, which the sovereign
will of the people alone can do.
[Finally, a summary was signed by 9 of the 13 Judges, outlining the key findings of
the Bench. In the summary, the Court held the following:
(1) I.C. Golak Nath v. State of Punjab was overruled;
(2) The Constitution (Twenty-fourth Amendment) Act, 1971 was valid;
(3) Article 368, as amended, was valid but it did not confer power on the Parliament
to alter the basic structure or framework of the Constitution. The court, however, did
not spell out in any exhaustive manner as to what the basic structure/framework was
except that some judges gave a few examples.
(4) The amendment of Article 31C containing the words “and no law containing a
declaration that it is for giving effect to such policy shall be called in question in any
court on the ground that it does not give effect to such policy” was held invalid.
(5) The Constitution (Twenty-ninth Amendment) Act, 1972 was held valid].
Comment: This case marks a watershed moment in the Indian Constitutional history.
The constitutional journey of India is very often divided into pre-Kesavananda and
post-Kesavananda phases. The case makes it absolutely clear that the Parliament’s
plenary power of making amendments is circumscribed by the existence of the
insurmountable Basic Structure of the Constitution. In other words, the Basic
Structure Doctrine reinforces the fact that in a Constitutional state like ours, it is the
Constitution, and not any political rulers, which is supreme, and in order to maintain
its supremacy, a perfect blend of dynamism and conservationism is an absolute
necessity.
On the Application of the Basic Structure Doctrine
Case: Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2229 (Coram: Ray, C.J.,
Khanna, Mathew, Beg, Chandrachud, JJ.)
During the General Parliamentary Elections of 1971, Mrs. Indira Gandhi, the Prime
Minister, was declared the winning candidate from the Rae Bareli Constituency in
Uttar Pradesh. Sri Raj Narain, her electoral opponent, filed an election petition under
section 80 (read with section 100) of the Representation of People Act, 1951 to
challenge her election, alleging inter alia corrupt practices on her part. The appeal to
the Supreme Court arose after the Allahabad High Court found her guilty on two of
the alleged counts.
Meanwhile, while a single judge vacation bench (presided over by Krishna Iyer, J.)
gave a conditional stay to Mrs. Gandhi, the Government went ahead to pass the
Constitution (Thirty Ninth) Amendment Act, 1975, which immunised the election of
inter alia the Prime Minister from judicial scrutiny. Article 329A, which was
introduced through this amendment, would make sure that any dispute arising out of
the election of these public functionaries would be adjudicated upon by the
Parliament, and not the Judiciary. This alleged abridgement of the power of
Separation of Powers, Judicial Review, Equality and Free and Fair Elections gave an
opportunity to the Court to engage the newly-formulated Basic Structure Doctrine.
Per Ray, C.J.:
[The Learned Chief Justice scrutinised Article 329A and declared clause (4) thereof to
be in violation of the Basic Structure Doctrine. He opined:]
The constitutional validity of clause (4) of Article 329A falls for consideration.
Clause (4) of Article 329A is challenged on two grounds. First, it destroys or damages
the basic features or basic structure of the Constitution. Reliance is placed in support
of the contention on the majority view of seven learned Judges in His Holiness
Kesavananda Bharati Sripadagalavaru v. State of Kerala. [The Second ground
mentioned by him was that since the National Emergency had been proclaimed and
most of the opposition members were in jail, there was no substantial discussion in
the Parliament when this amendment was passed. On the first contention, the Learned
Judge held:]
The Constitution Amendment affects the basic structure of institutional pattern

adopted by the Constitution. The basic feature of separation of powers with the
role of independence of Judiciary is changed by denying jurisdiction of this
Court to test the validity of the election. The essential feature of democracy will
be destroyed if power is conceded to Parliament to declare the elections void
according to law under which it has been held to be valid. This is illustrated by
saying that Parliament can be law declare the election of persons against the
predominant ruling party to be void. If the majority party controls the Legislature and
the Executive, the Legislature could not have any say as to whether the Executive was
properly elected. Free and fair elections are part of democratic structure and an
election which has been held to be invalid for violation of the principles of free
and fair elections and by commission of corrupt practices is validated.
[Thus, he invalidated the impugned clause as being violative of the Basic Structure.
However, he refused to scrutinise the Representation of Peoples Act in light of the
Basic Structure Doctrine as, in his opinion, the Basic Structure Doctrine is available
only to check the validity of constitutional amendments. He opined:]
The contentions on behalf of the respondent that ordinary legislative measures are
subject like Constitution Amendments to the restrictions of not damaging or
destroying basic structure, or basic features are utterly unsound. It has to be
appreciated at the threshold that the contention that legislative measures are
subject to restrictions of the theory of basic structures or basic features is to
equate legislative measures with Constitution Amendment. [...]
To accept the basic features or basic structures theory with regard to ordinary
legislation would mean that there would be two kinds of limitations for legislative
measures. One will pertain to legislative power under Article 245 and 246 and the
legislative entries and the provision in Article 13. The other would be that no
legislation can be made as to damage or destroy basic features or basic structures.
This will mean rewriting the Constitution and robbing the Legislature of acting within
the framework of the Constitution. No legislation can be free from challenge on this
ground even though the legislative measure is within the plenary powers of the
Legislature.
[...]
The theory of basic structures or basic features is an exercise in imponderables. Basic

structures or basic features are indefinable. The legislative entries are the fields of
legislation. The pith and substance doctrine has been applied in order to find out
legislative competency, and eliminate encroachment on legislative entries. If the
theory of basic structures or basic features will be applied to legislative measures
it will denude Parliament and State Legislature of the power of legislation and
deprive them of laying down legislative policies. This will be encroachment on
the separation of powers.
[Thus, even though Article 329(4) was struck down as being violative of the Basic
Structure Doctrine, the Learned Judge refused to use the Doctrine vis-a-vis an
ordinary law, in this case, the Representation of People Act and the Election Laws
(Amendment) Act.]
Per Khanna, J. (concurring):
[The Learned Judge also looked at the gross violation of the Basic Structure by the
Article 329(4) introduced by the 39th Amendment, and for that reason, he declared it
as unconstitutional. In doing so, he held:]
[...] I strike down clause (4) of Article 329A on the ground that it violates the
principle of free and fair elections which is an essential postulate of democracy
and which in its turn is a part of the basic structure of the Constitution inasmuch
as (1) it abolishes the forum without providing for another forum for going into the
dispute relating to the validity of the election of the appellant and further prescribes
that the said dispute shall not be governed by any election law and the validity of the
said election shall be absolute and not consequently be liable to be assailed, and (2) it
extinguishes both the right and the remedy to challenge the validity of the aforesaid
election.
[The Learned Judge did not go into the question as to whether an ordinary law can be
held to have violated the Basic Structure Doctrine. His reasoning was simple – he did
not find any violation of free and fair elections, an important element of the Basic
Structure, by the impugned laws. Thus, the question became redundant for him].
[He was also required to give some clarifications on the nature of the Basic Structure,
and to clarify certain aspects of the Kesavananda Bharati judgement. He opined:]
There was a controversy during the course of arguments on the point as to whether I
have laid down in my judgment in Kesavananda Bharati's case that fundamental
rights are not a part of the basic structure of the Constitution. As this controversy
cropped up a number of times, it seems apposite that before I conclude I should deal
with the contention advanced by learned Solicitor General that according to my
judgment in that case no fundamental right is part of the basic structure of the
Constitution. I find it difficult to read anything in that judgment to justify such a
conclusion. What has been laid down in that judgment is that no article of the
Constitution is immune from the amendatory process because of the fact that it
relates to a fundamental right and is contained in Part III of the Constitution. It
was also held that a constitution amendment under Article 368 does not constitute
"law" as mentioned in Article 13. [...]
[Mathew, Beg and Chandrachud, JJ. also provided important concurring opinions,
with some inherent differences between themselves, like Beg, J. not invalidating
Article 329(4) altogether, but reading it down to assume jurisdiction over the matter.
The major difference in opinion between the Judges was with respect to the inclusion
of certain individual components into the Basic Structure, and also with respect to
application of the Basic Structure test to ordinary laws. While three of the majority
judges decided that ordinary laws cannot be subject to the Basic Structure test (and
Khanna, J. refrained from commenting on it since the issue was not germane to the
case in his opinion), Beg, J., found no limitation in testing ordinary laws on the
bedrock of the Basic Structure].
Comment: This case epitomises the uncertainties with the abstractness of the Basic
Structure, insofar as the Judges conflicted on the issue of inclusion of certain elements
into the Basic Structure. However, broadly speaking, there appears to be some
consensus on some of these elements – rule of law, democracy, judicial review etc.
On Basic Structure and the ‘Rights Test’
Case: I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 (Coram: Sabharwal,
C.J., Bhan, Pasayat, B.P. Singh, Kapadia, Thakker, Balasubramanyan, Kabir,
Jain, JJ.)
Certain Laws had been inserted into the Ninth Schedule of the Constitution. These
laws had serious implications on Fundamental Rights of the petitioners. Therefore, the
Court was urged to look into the constitutional validity of the amendments inserting
these laws into the Ninth Schedule. In this context, the Court set forth on
reinvestigating the validity of the Waman Rao decision where it was held that any
Constitutional Amendment post-Kesavananda would be required to be scrutinised on
the touchstone of the Basic Structure Doctrine. In this context, the Court also decided
to look into the larger issue – “The fundamental question is, whether on and after 24th
April, 1973 when basic structures doctrine was propounded, it is permissible for the
Parliament under Article 31B to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and, if so, what is its effect on the power of
judicial review of the Court?” Thus, the viability of the Ninth Schedule itself was put
to question. This case is also notable because of its evolution of the ‘Rights Test’ – a
test to determine Basic Structure conformity.
Per Sabharwal, C.J.:
[After a detailed account of the cases pertaining to the Amendment of the

Constitution, the Learned Chief Justice went into an analysis of the “Fundamentalness
of the Fundamental Rights”, with respect to the Basic Structure Doctrine and the
Ninth Schedule Laws. In this context, he also did a critical evaluation of the M.
Nagaraj decision. He opined:]
The abrogation or abridgment of the fundamental rights under Chapter III have,
therefore, to be examined on broad interpretation, the narrow interpretation of
fundamental rights chapter is a thing of past. Interpretation of the Constitution has to
be such as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest
measure. [...]
The rights and freedoms created by the fundamental rights chapter can be taken
away or destroyed by amendment of the relevant Article, but subject to
limitation of the doctrine of basic structure. True, it may reduce the efficacy
of Article 31B but that is inevitable in view of the progress the laws have made post-
Kesavananda Bharati's case which has limited the power of the Parliament to amend
the Constitution under Article 368 of the Constitution by making it subject to the
doctrine of basic structure.
[...] [T]he first aspect to be borne in mind is that each exercise of the amending power
inserting laws into Ninth Schedule entails a complete removal of the fundamental
rights chapter vis-a-vis the laws that are added in the Ninth Schedule. Secondly,
insertion in Ninth Schedule is not controlled by any defined criteria or standards by
which the exercise of power may be evaluated. The consequence of insertion is that it
nullifies entire Part III of the Constitution. There is no constitutional control on such
nullification. It means an unlimited power to totally nullify Part III in so far as Ninth
Schedule legislations are concerned. The supremacy of the Constitution mandates all
constitutional bodies to comply with the provisions of the Constitution. It also
mandates a mechanism for testing the validity of legislative acts through an
independent organ, viz. the judiciary.
While examining the validity of Article 31C in Kesavananda Bharati's case, it was
held that the vesting of power of the exclusion of judicial review in a legislature
including a State legislature, strikes at the basic structure of the Constitution. It is on
this ground that second part of Article 31C was held to be beyond the permissible
limits of power of amendment of the Constitution under Article 368. If the doctrine
of basic structure provides a touchstone to test the amending power or its
exercise, there can be no doubt and it has to be so accepted that Part III of the
Constitution has a key role to play in the application of the said doctrine.
Regarding the status and stature in respect of fundamental rights in Constitutional
scheme, it is to be remembered that Fundamental Rights are those rights of citizens or
those negative obligations of the State which do not permit encroachment on
individual liberties. The State is to deny no one equality before the law. The object of
the Fundamental Rights is to foster the social revolution by creating a society
egalitarian to the extent that all citizens are to be equally free from coercion or
restriction by the State. By enacting Fundamental Rights and Directive Principles
which are negative and positive obligations of the States, the Constituent Assembly
made it the responsibility of the Government to adopt a middle path between
individual liberty and public good. Fundamental Rights and Directive Principles have
to be balanced. That balance can be tilted in favour of the public good. The balance,
however, cannot be overturned by completely overriding individual liberty. This
balance is an essential feature of the Constitution. Fundamental rights enshrined in
Part III were added to the Constitution as a check on the State power, particularly the
legislative power. Through Article 13, it is provided that the State cannot make any
laws that are contrary to Part III. The framers of the Constitution have built a wall
around certain parts of fundamental rights, which have to remain forever,
limiting ability of majority to intrude upon them. That wall is the 'Basic
Structure' doctrine. Under Article 32, which is also part of Part III, Supreme Court
has been vested with the power to ensure compliance of Part III. The responsibility to
judge the constitutionality of all laws is that of judiciary. Thus, when power
under Article 31B is exercised, the legislations made completely immune from Part
III results in a direct way out, of the check of Part III, including that of Article 32. It
cannot be said that the same Constitution that provides for a check on legislative
power, will decide whether such a check is necessary or not. It would be a negation of
the Constitution. In Waman Rao's case, while discussing the application of basic
structure doctrine to the first amendment, it was observed that the measure of the
permissibility of an amendment of a pleading is how far it is consistent with the
original; you cannot by an amendment transform the original into opposite of what it
is. For that purpose, a comparison is undertaken to match the amendment with the
original. Such a comparison can yield fruitful results even in the rarefied sphere of
constitutional law.
Indeed, if Article 31B only provided restricted immunity and it seems that original
intent was only to protect a limited number of laws, it would have been only
exception to Part III and the basis for the initial upholding of the provision. However,
the unchecked and rampant exercise of this power, the number having gone from 13
to 284, shows that it is no longer a mere exception. The absence of guidelines for
exercise of such power means the absence of constitutional control which results in
destruction of constitutional supremacy and creation of parliamentary hegemony and
absence of full power of judicial review to determine the constitutional validity of
such exercise. [...]
The fundamental rights have always enjoyed a special and privileged place in the
Constitution. Economic growth and social equity are the two pillars of our
Constitution which are linked to the rights of an individual (right to equal
opportunity), rather than in the abstract. Some of the rights in Part III constitute
fundamentals of the Constitution like Article 21 read with Articles 14 and 15
which represent secularism etc. As held in Nagaraj, egalitarian equality exists
in Article 14 read with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest
that equity and justice finds place only in the Directive Principles.
The Parliament has power to amend the provisions of Part III so as to abridge or
take away fundamental rights, but that power is subject to the limitation of basic
structure doctrine. Whether the impact of such amendment results in violation of
basic structure has to be examined with reference to each individual case. Take
the example of freedom of Press which, though not separately and specifically
guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to
be amended so as to abrogate such right (which we hope will never be done), the
acceptance of respondents contention would mean that such amendment would fall
outside the judicial scrutiny when the law curtailing these rights is placed in the Ninth
Schedule as a result of immunity granted by Article 31B. The impact of such an
amendment shall have to be tested on the touchstone of rights and freedoms
guaranteed by Part III of the Constitution. In a given case, even abridgement may
destroy the real freedom of the Press and, thus, destructive of the basic structure. Take
another example. The secular character of our Constitution is a matter of conclusion
to be drawn from various Articles conferring fundamental rights; and if the secular
character is not to be found in Part III, it cannot be found anywhere else in the
Constitution because every fundamental right in Part III stands either for a principle
or a matter of detail. Therefore, one has to take a synoptic view of the various Articles
in Part III while judging the impact of the laws incorporated in the Ninth Schedule on
the Articles in Part III.
[On Articles 14, 19 and 21 being part of the Basic Structure, the Learned Chief Justice
observed:]
Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these
clearly form part of the basic structure of the Constitution and cannot be abrogated. It
was observed that three Articles of our constitution, and only three, stand between the
heaven of freedom into which Tagore wanted his country to awake and the abyss of
unrestrained power. These Articles stand on altogether different footing. Can it be
said, after the evolution of the basic structure doctrine, that exclusion of these rights at
Parliament's will without any standard cannot be subjected to judicial scrutiny as a
result of the bar created by Article 31B? The obvious answer has to be in the negative.
If some of the fundamental rights constitute a basic structure, it would not be
open to immunise those legislations from full judicial scrutiny either on the
ground that the fundamental rights are not part of the basic structure or on the
ground that Part III provisions are not available as a result of immunity granted
by Article 31B. It cannot be held that essence of the principle behind Article 14 is
not part of the basic structure. In fact, essence or principle of the right or nature of
violation is more important than the equality in the abstract or formal sense. The
majority opinion in Kesavananda Bharati's case clearly is that the principles behind
fundamental rights are part of the basic structure of the Constitution. It is necessary to
always bear in mind that fundamental rights have been considered to be heart and soul
of the Constitution. Rather these rights have been further defined and redefined
through various trials having regard to various experiences and some attempts to
invade and nullify these rights. The fundamental rights are deeply interconnected.
Each supports and strengthens the work of the others. The Constitution is a living
document, its interpretation may change as the time and circumstances change to keep
pace with it.
[Therefore, the Learned Judge went on to hold:]
We are of the view that while laws may be added to the Ninth Schedule,
once Article 32 is triggered, these legislations must answer to the complete test of
fundamental rights. Every insertion into the Ninth Schedule does not restrict
Part III review, it completely excludes Part III at will. For this reason, every
addition to the Ninth Schedule triggers Article 32 as part of the basic structure
and is consequently subject to the review of the fundamental rights as they stand
in Part III.
[...]
Since power to amend the Constitution is not unlimited, if changes brought

about by amendments destroy the identity of the Constitution, such amendments
would be void. That is why when entire Part III is sought to be taken away by a
constitutional amendment by the exercise of constituent power under Article 368 by
adding the legislation in the Ninth Schedule, the question arises as to the extent of
judicial scrutiny available to determine whether it alters the fundamentals of the
Constitution. [...]
If constituent power under Article 368, the other name for amending power,
cannot be made unlimited, it follows that Article 31B cannot be so used as to
confer unlimited power. Article 31B cannot go beyond the limited amending
power contained in Article 368. The power to amend Ninth Schedule flows
from Article 368. This power of amendment has to be compatible with the limits on
the power of amendment. This limit came with the Kesavananda Bharati's case.
Therefore Article 31-B after 24th April, 1973 despite its wide language cannot
confer unlimited or unregulated immunity. [...]
The doctrine of basic structure contemplates that there are certain parts or
aspects of the Constitution including Article 15, Article 21 read with Article
14 and 19 which constitute the core values which if allowed to be abrogated
would change completely the nature of the Constitution. Exclusion of
fundamental rights would result in nullification of the basic structure doctrine,
the object of which is to protect basic features of the Constitution as indicated by
the synoptic view of the rights in Part III.
[Finally, he contrasted this ‘Rights Test’ propounded by him with the ‘Essence of
Rights’ Test developed in M. Nagaraj. He held:]
There is also a difference between the 'rights test' and the 'essence of right test'. Both
form part of application of the basic structure doctrine. When in a controlled
Constitution conferring limited power of amendment, an entire Chapter is made
inapplicable, 'the essence of the right' test as applied in M. Nagaraj's case will
have no applicability. In such a situation, to judge the validity of the law, it is
'right test' which is more appropriate. [...] We are considering the situation where
entire equality code, freedom code and right to move court under Part III are all
nullified by exercise of power to grant immunization at will by the Parliament which,
in our view, is incompatible with the implied limitation of the power of the
Parliament. In such a case, it is the rights test that is appropriate and is to be applied.
[Thus, he observed:]
[T]he constitutional validity of the Ninth Schedule Laws on the touchstone of basic
structure doctrine can be adjudged by applying the direct impact and effect test, i.e.,
rights test, which means the form of an amendment is not the relevant factor, but the
consequence thereof would be determinative factor.
[In conclusion, he held the following:]
(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution
may violate the basic structure doctrine or it may not. If former is the consequence of
law, whether by amendment of any Article of Part III or by an insertion in the Ninth
Schedule, such law will have to be invalidated in exercise of judicial review power of
the Court. The validity or invalidity would be tested on the principles laid down in
this judgment.
(ii) The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's
case, requires the validity of each new constitutional amendment to be judged on its
own merits. The actual effect and impact of the law on the rights guaranteed under
Part III has to be taken into account for determining whether or not it destroys basic
structure. The impact test would determine the validity of the challenge.
(iii) All amendments to the Constitution made on or after 24th April, 1973 by which
the Ninth Schedule is amended by inclusion of various laws therein shall have to be
tested on the touchstone of the basic or essential features of the Constitution as
reflected in Article 21 read with Article 14, Article 19, and the principles underlying
them. To put it differently, even though an Act is put in the Ninth Schedule by a
constitutional amendment, its provisions would be open to attack on the ground that
they destroy or damage the basic structure if the fundamental right or rights taken
away or abrogated pertains or pertain to the basic structure.
(iv) Justification for conferring protection, not blanket protection, on the laws
included in the Ninth Schedule by Constitutional Amendments shall be a matter of
Constitutional adjudication by examining the nature and extent of infraction of a
Fundamental Right by a statute, sought to be Constitutionally protected, and on the
touchstone of the basic structure doctrine as reflected in Article 21 read with Article
14 and Article 19 by application of the "rights test" and the "essence of the right" test
taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case.
Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic
structure then such a law(s) will not get the protection of the Ninth Schedule. [...]
(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it
would not be open to challenge such law again on the principles declared by this
judgment. However, if a law held to be violative of any rights in Part III is
subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a
violation/infraction shall be open to challenge on the ground that it destroys or
damages the basic structure as indicated in Article 21 read with Article 14, Article
19 and the principles underlying thereunder.
Comment: This judgement, by striking at the very roots of the purpose with which
the Ninth Schedule was introduced into the Constitution, renders the Ninth Schedule
almost redundant. It also reinforces the pre-eminence of Articles 14, 19 and 21, by
asserting that they form part of the Basic Structure.
Conclusion
The cases discussed in this chapter give a clear indication that the constitutional amendments,
howsoever necessary they are, would not be completely immune from judicial scrutiny on the
touchstone of the Basic Structure. In fact, if one looks at the later cases involving the Basic
Structure, it would clearly suggest that the Basic Structure has gradually become stronger,
more strongly embedded into our constitutional psyche.
A clear evidence of the gradual all-pervasiveness of the Basic Structure can be explained by a
simple example. If one looks at the Indira Nehru Gandhi case, it becomes evident that most
of the Judges were reluctant to use the Basic Structure Doctrine to test the constitutional
validity of ordinary legislations. But subsequently, it has been noticed that there have been
many cases (for example, Madras Bar Association v. Union of India, (2014) 10 SCC 1, also
known as the National Tax Tribunal (NTT) case), where ordinary laws (in some cases, not
even legal amendments) have been tested on the bedrock of the Basic Structure. This clearly
goes on to show how much more powerful the Basic Structure has become in the last forty-
four years of its existence.
ORGANS OF
GOVERNANCE
ORGANS OF GOVERNANCE
Introduction
This Chapter deals with the three organs of governance – Judiciary, Legislature and
Executive. Though they are functionally separated by the Westminster Model of Separation
of Powers, each one of them acts as a ‘check-and-balance’ mechanism on the other. This
system of mutual co-ordination and accountability makes the Constitution function smoothly,
and ensures the observance of the Rule of Law.
The Chapter is divided into 3 Sections. Section A discusses cases dealing with the Judiciary,
Section B deals with Legislature and Section C deals with the Executive.
Section A
Judiciary
Introduction
In any Constitutional governance, the judiciary plays a pivotal role in ensuring that the State
does not overreach the limits set upon it by the Constitution, both while legislating or while
executing such legislations. Rule of Law demands that such power of judicial review is kept
at a paramount position. It is also an absolute necessity that the judges are absolutely
independent in their functioning – insofar as their appointment, transfer, service conditions,
removal and every other allied aspect is kept free from the influencing powers of the
governance dispensation.
This Chapter deals with certain aspects of the Judiciary. It discusses cases on appointment
and transfer of judges, the power of judicial review, functions of Courts and Tribunals and
different types of jurisdiction exercised by the Courts in India.
On the Appointment and Transfer of Judges

Case: In Re Presidential Reference, (Third Judges’ Case) AIR 1999 SC 1
(Coram: Bharucha, Mukherjee, Majumdar, Manohar, Nanavati, Ahmed,
Venkataswami, Kirpal, Pattanaik, JJ.)
This Presidential Reference was the third case dealing with the issue of appointment
and transfer of Judges. All of these cases had a primary issue to deal with – whether
the word ‘consultation’ in Article 124 and 217 of the Constitution, where the
President has to ‘Consult’ the Chief Justice before effecting a judicial appointment or
transfer, can be interpreted as ‘concurrence’ of the Judiciary. While the first Judges’
Case answered this question in the negative going by a literal interpretation of the
provisions, the second Judges’ case [Supreme Court Advocates-on-Record
Association v. Union of India, (1993) 4 SCC 441] reversed the implications of the
process, vesting the primacy with the Judiciary. In this case, the Supreme Court held
that all such appointments and transfers have to be effected after consulting with the
Chief Justice in Collegium, i.e., the plurality of views in the Judiciary has to be
considered. This was a distinct departure from the erstwhile practice of a distinct
executive primacy.
However, there were certain issues with respect to the second Judges’ Case, like the
composition of the collegium, relevance of merit in elevations, inter se priority of the
Chief Justice in the collegium, judicial review of the colleguim’s deciion etc. that
required some amount of clarification. Therefore, the President of India used his
powers under Article 143 and invoked the Advisory Jurisdiction of the Supreme
Court.
Per Bharucha, J.:
[The Learned Judge started by outlining the questions sent for reference, and by
stating the fact that the Attorney General has pledged on behalf of the Government to
be bound by the advice provided by the Supreme Court with respect to the advices
rendered by the Supreme Court. The questions are:]
(1) whether the expression "consultation with the Chief Justice of India" in articles
217(1) and 222(1) requires consultation with a plurality of Judges in the formation of
the opinion of the Chief Justice of India or does the sole individual opinion of the
Chief Justice of India constitute consultation within the meaning of the said articles;
(2) whether the transfer of judges is judicially reviewable in the light of the
observation of the Supreme Court in the aforesaid judgment that "such transfer is not
justiciable on any ground" and its further observation mat limited judicial review is
available in matters of transfer, and the extent and scope of judicial review;
(3) whether article 124(2) as interpreted in the said judgment requires the Chief
Justice of India to consult only the two seniormost Judges or whether there should be
wider consultation according to past practice;
(4) whether the Chief Justice of India is entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme Court in respect of
all materials and information conveyed by the Government of India for non-
appointment of a judge recommended for appointment;
(5) whether the requirement of consultation by the Chief Justice of India with his
colleagues, who are likely to be conversant with the affairs of the concerned High
Court refers to only those Judges who have that High Court as a parent High Court
and excludes Judges who had occupied the office of a Judge or Chief Justice of that
Court on transfer from their parent or any other Court;
(6) whether in light of the legitimate expectations of senior Judges of the High Court
in regard to their appointment to the Supreme Court referred to in the said judgment,
the 'strong cogent reason' required to justify the departure from the order of the
seniority has to be recorded in respect of each such senior Judge, who is overlooked,
while making recommendation of a Judge junior to him or her;
(7) whether the government is not entitled to require that the opinions of the other
consulted Judges be in writing in accordance with the aforesaid Supreme Court
judgment and that the same be transmitted to the Government of India by the Chief
Justice of India along with his views;
(8) whether the Chief Justice of India is not obliged to comply with the norms and the
requirement of the consultation process in making his recommendation to the
Government of India;
(9) whether any recommendations made by the Chief Justice of India without
complying with the norms and consultation process are binding upon the Government
of India?
[After elaborately discussing different facets of the decision rendered in the Second
Judges’ Case, the Learned Judge quoted the summary of the said case, which states
thus:]
"(1) The process of appointment of Judges to the Supreme Court and the
High Courts is an integrated 'participatory consultative process' for
selecting the best and most suitable persons available for appointment; and all
the constitutional functionaries must perform this duty collectively with a view
primarily to reach an agreed-decision, subserving the constitutional purpose,
so that the occasion of primacy does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme
Court must be by the Chief Justice of India, and in the case of a High
Court by the Chief Justice of that High Court; and for transfer of
Judge/Chief Justice of a High Court, the proposal had to be initiated by
the Chief Justice of India. This is the manner in which proposals for
appointments to the Supreme Court and the High Courts as well as for the
transfers of Judges/Chief Justices of the High Courts must invariably be made,
(3) In the event of conflicting opinions by the constitutional functionaries,

the opinion of the judiciary 'symbolised by the view of the Chief Justice of
India' and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High

Court can be made, unless it is in conformity with the opinion of the Chief
Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to
the Chief Justice of India, indicating that the recommended is not suitable for
appointment, that appointment recommended by the Chief Justice of India
may not be made. However, if the stated reasons are not accepted by the Chief
Justice of India and the other Judges of the Supreme Court who have been
consulted in the matter, on reiteration of the recommendation by the Chief
Justice of India, the appointment should be made as a healthy convention.
(7) The opinion of the Chief Justice of India has not mere primacy, but is
determinative in the matter of transfers of High Court Judges/Chief Justices.
(9) Any transfer made on the recommendation of the Chief Justice of India is
not to be deemed to be punitive, and such transfer is not justiciable on any
ground.
(10) In making all appointments and transfers, the norms indicated must be
followed. However, the same do not confer any justiciable right in any one.
(11) Only limited judicial review on the grounds specified earlier is available
in matters of appointments and transfers.
(14) The majority opinion in S.P Gupta v. Union of India [(The First Judges’
case), (AIR 1982 SC 149)], in so far as it takes the contrary view relating to
primacy of the role of the Chief Justice of India in matters of appointments
and transfers, and the justiciability of these matters as well as in relation to
Judge strength, does not commend itself to us as being the correct view. The
relevant provisions of the Constitution including the constitutional scheme
must now be understood and implemented in the manner indicated herein by
us."
[Having outlined the outcome of the Second Judges’ Case, he turned to the questions
raised in the instant reference. He focussed on each individual aspect on which there
were doubts raised. On the issue of the strength of the collegium for appointment to
the Supreme Court, he observed:]
The opinion of the Chief Justice of India which has primacy in the matter of
recommendations for appointment to the Supreme Court has to be formed in
consultation with a collegium of Judges. Presently, and for a long time now, that
collegium consists of the two seniormost puisne Judges of the Supreme Court. In
making a decision as to whom that collegium should recommend, it takes into account
the view that are elicited by the Chief Justice of India from the seniormost Judge of
the Supreme Court who comes from the same High Court as the person proposed to
be recommended. It also takes into account the views of other Judges of the Supreme
Court or the Chief Justices or Judges of the High Court or, indeed, members of the
Bar who may also have been asked by the Chief Justice of India or on his behalf. The
principal objective of the collegium is to ensure that the best available talent is
brought to the Supreme Court bench. The Chief Justice of India and the seniormost
puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to
achieve this objective. They can assess the comparative worth of possible appointees
by reason of the fact that their judgments would have been the subject matter of
petitions for special leave to appeal and appeals. Even where the person under
consideration is a member of the Bar, he would have frequently appeared before
them. In assessing comparative worth as aforestated, the collegium would have the
benefit of the inputs provided by those whose views have been sought. The
distinction, therefore, is between the Judges of the Supreme Court who decide, along
with the Chief Justice of India, who should be recommended for appointment to the
Supreme Court and the judges of the Supreme Court and others who are asked to
express their views about the suitability of a possible nominee for such appointment.
With this in mind, what has to be considered is whether the size of the collegium that
makes the recommendation should be increased. Having regard to the terms of Article
124(2), as analysed in the majority judgment in the second Judges case, as also the
precedent set by the then Chief Justice of India, as set out earlier, and having regard to
the objective aforestated, we think it is desirable that the collegium should consist
of the Chief Justice of India and the four seniormost puisne Judges of the
Supreme Court.
Ordinarily, one of the four seniormost puisne Judges of the Supreme Court would
succeed the Chief Justice of India, but if the situation should be such that the
successor Chief Justice is not one of the four seniormost puisne Judges, he must
invariably be made part of the collegium. The Judges to be appointed will function
during his term and it is but right that he should have a hand in their selection.
It is not practicable to include in the collegiums the seniormost Judge of the Supreme
Court who comes from the same High Court as the person to be recommended,
unless, of course he is a part of the collegium by virtue of being one of the four
seniormost puisne Judges, because, as experience shows, it is normally not one
vacancy that has to be filled up but a number thereof. The prospective candidates to
fill such multiple vacancies would come from a number of High Courts. It would,
therefore, be necessary to consult the seniormost Judge's from all those High Courts.
All these judges cannot conveniently be included in the collegium. Secondly, the
composition of the collegium cannot vary depending upon where the prospective
appointees hail from. To put it differently, for a particular set of vacancies the
seniormost Judges from the High Courts at, let us say, Allahabad and Bombay may
have to be consulted. It would neither be proper nor desirable, if they have been part
of the collegium for that particular selection, to leave them out of the next collegium
although no prospective appointee at that time hails from the High Courts at
Allahabad or Bombay. Thirdly, it would not be proper to exclude from the collegium
such Judges of the Supreme Court, if any, as are senior to the Judges required to be
consulted. Lastly, the seniormost Judge of the Supreme Court who comes from the
same High Court as the person to be recommended may be, in terms of over all
seniority in the Supreme Court, very junior, with little experience of work in the
Supreme Court, and, therefore, unable to assess the comparative merit of a number of
possible appointees.
Necessarily, the opinion of all members of the collegium in respect of each

recommendation should be in writing. The ascertainment of the views of the
seniormost Supreme Court Judges who hail from the High Courts from where
the persons to be recommended come must also be in writing. These must be
conveyed by the Chief Justice of India to the Government of India along with the
recommendation. The other views that the Chief Justice of India or the other members
of the collegium may elicit, particularly if they are from non-Judges, need not be in
writing, but it seems to us advisable that he who elicits the opinion should make a
memorandum thereof, and the substance thereof, in general terms, should be
conveyed to the Government of India.
The seniormost Judge in the Supreme Court from the High Court from which a
prospective candidate comes would ordinarily know his merits and demerits, but if
per chance he does not, the next seniormost Judge in the Supreme Court from that
High Court should be consulted and his views obtained in writing.
We should add that the objective being to procure the best information that can be
obtained about a prospective appointee, it is of no consequence that a Judge in the
Supreme Court from the prospective appointee's High Court had been transferred to
that High Court either as a puisne Judge or as its Chief Justice.
[On the aspect of whether the Chief Justice enjoys a superior status inside the
collegium, he opined:]
It is, we think, reasonable to expect that the collegium would make its
recommendations based on a consensus. Should that not happen, it must be
remembered that no one can be appointed to the Supreme Court unless his
appointment is in conformity with the opinion of the Chief Justice of India. The
question that remains is: what is the position when the Chief Justice of India is in a
minority and the majority of the collegium disfavour the appointment of a particular
person? The majority judgment in the second Judges case has said that if "the final
opinion of the Chief Justice of India is contrary to the opinion of the senior Judges
consulted by the Chief Justice of India and the senior Judges are of the view that the
recommended is unsuitable for stated reason, which are accepted by the President,
then the non-appointment of the candidate recommended by the Chief Justice of India
would be permissible". This is delicately put, having regard to the high status of the
President, and implies that if the majority of the collegium is against the appointment
of a particular person, that person shall not be appointed, and we think that this is
what must invariably happen. We hasten to add that we cannot easily visualise a
contingency of this nature; we have little doubt that if even two of the Judges
forming the collegium express strong views, for good reasons, that are adverse to
the appointment of a particular person the Chief Justice of India would not press
for such appointment.
[On how can someone who is due for elevation can be not appointed, he observed:]
The majority judgment in the second Judges case contemplates the non-appointment
of a person recommended on the ground of unsuitability. It says that such non-
appointment "must be for good reasons, disclosed to the Chief Justice of India to
enable him to reconsider and withdraw his recommendation on those considerations.
If the Chief Justice of India does not find it necessary to withdraw his
recommendation even thereafter, but the other Judges of the Supreme Court who have
been consulted in the matter are of the view that it ought to be withdrawn, the non-
appointment of that person for reasons to be recorded, may be permissible in the
public interest However, if after due consideration of the reasons disclosed to the
Chief Justice of India, that recommendation is reiterated by the Chief Justice of India
with the unanimous agreement of the Judges of the Supreme Court consulted in the
matter, with reasons for not withdrawing the recommendation, then that appointment
as a matter of healthy convention ought to be made". It may be that one or more
members of the collegium that made a particular recommendation have retired or are
otherwise unavailable when reasons are disclosed to the Chief Justice of India for the
non-appointment of that person. In such a situation the reasons must be placed before
the remaining members of the original collegium plus another Judge or Judges who
have reached the required seniority and become one of the first four puisne Judges. It
is for this collegium, so re-constituted, to consider whether the recommendation
should be withdrawn or reiterated. It is only if it is unanimously reiterated that the
appointment must be made. Having regard to the objective of securing the best
available men for the Supreme Court, it is imperative that the number of Judges
of the Supreme Court who consider the reasons for non-appointment should be
as large as the number that had made the particular recommendation.
The Chief Justice of India may, in his discretion, bring to the knowledge of the person
recommended the reasons disclosed by the Government of India for his non-
appointment and ask for his response thereto. The response, if asked for and made,
should be considered by the collegium before it withdraws or reiterates the
recommendation.
[On which factor should be given priority for appointment – merit or seniority, he
held:]
The majority judgment in the second Judges case said that "inter se, seniority amongst
Judges in their High Court and their combined seniority on all India basis" should be
"kept in view and given due weight while making appointments from amongst High
Court Judges to the Supreme Court. Unless there be any strong cogent reason to
justify a departure, that order of seniority must be maintained between them while
making their appointment to the Supreme Court". It also said that "the legitimate
expectation of the High Court Judges to be considered for appointment to the
Supreme Court, according to their seniority" must be duly considered. The statement
made thereafter is very important; it is: "Obviously, this factor applies only to those
considered suitable and at least equally meritorious by the Chief Justice of India
for appointment to the Supreme Court."
Merit, therefore, as we have already noted, is the predominant consideration for

the purposes of appointment to the supreme Court.
Where, therefore, there is outstanding merit the possessor thereof deserves to be

appointed regardless of the fact that he may not stand high in the all India
seniority list or in his own High Court. All that then needs to be recorded when
recommending him for appointment is that he has outstanding merit. When the
contenders for appointment to the Supreme Court do not possess such outstanding
merit but have, nevertheless, the required merit in more or less equal degree, there
may be reason to recommend one among them because, for example, the particular
region of the country in which his parent High Court is situated is not represented on
the Supreme Court bench. All that then needs to be recorded when making the
recommendation for appointment is this factor. The "strong cogent reasons" that the
majority judgment in the second Judges case speaks of are good reasons for
appointing to the Supreme Court a particular High Court Judge, not for not appointing
other High Court Judges senior to him. It is not unusual that a Judge who has once
been passed over for appointment to the Supreme Court might still find favour on the
occasion of another selection and there is no reason to blot his copybook by recording
what might be construed to be an adverse comment about him. It is only when, for
very strong reasons, a collegium finds that, whatever his seniority, some High
Court Judge should never be appointed to the Supreme Court that it should so
record. This would then be justified and would afford guidance on subsequent
occasions of considering who to recommend.
[On the aspect of the appointment of Judges to the High Court, the Learned Judge
opined that the collegiums strength can be suitably reduced. He held:]
The majority judgment in the second Judges case requires the Chief Justice of a High
Court to consult his two seniormost puisne Judges before recommending a name for
appointment to the High Court. In forming his opinion in relation to such appointment
the Chief Justice of India is expected "to take into account the views of his colleagues
in the Supreme Court who are likely to be conversant with the affairs of the concerned
High Court. The Chief Justice of India may also ascertain the views of one or more
senior Judges of that High Court". The Chief Justice of India should, therefore, form
his opinion in regard to a person to be recommended for appointment to a High Court
in the same manner as he forms it in regard to a recommendation for appointment to
the Supreme Court, that is to say, in consultation with his seniormost puisne Judges.
They would in making their decision take into account the opinion of the Chief Justice
of the High Court, which "would be entitled to the greatest weight", the views of other
Judges of the High Court who may have been consulted and the views of colleagues
on the Supreme Court bench "who are conversant with the affairs of the concerned
High Court". Into that last category would fall Judges of the Supreme Court who were
puisne Judges of that High Court or Chief Justices thereof, and it is of no consequence
that the High Court is not their parent High Court and they were transferred there. The
objective being to gain reliable information about the proposed appointee, such
Supreme Court Judge as may be in a position to give it should be asked to do so. All
these views should be expressed in writing and conveyed to the Government of India
along with the recommendation.
Having regard to the fact that information about a proposed appointee to a High Court
would best come from the Chief Justice and Judges of that High Court and from
Supreme Court Judges conversant with it, we are not persuaded to alter the strength of
the decision making collegium's size; where appointments to the High Courts are
concerned, it should remain as it is constituted of the Chief Justice of India and
the two seniormost puisne Judges of the Supreme Court.
[On whether there can be the possibility of judicial review of a contentious

appointment or non-appointment, he observed:]
In the context of the judicial review of appointments, the majority judgment in the
second Judges' case said, "Plurality of Judges in the formation of the opinion of the
Chief Justice of India, as indicated, is another in-built check against the likelihood of
arbitrariness or bias The judicial element being predominant in the case of
appointments as indicated, the need for further judicial review, as in other executive
actions, is eliminated." The judgment added, "Except on the ground of want of
consultation with the named constitutional functionaries or lack of any condition of
eligibility in the case of an appointment, these matters are not justiciable on any other
ground...".
Judicial review in the case of an appointment, or a recommended appointment, to the

Supreme Court or a High Court is, therefore, available if the recommendation
concerned is not a decision of the Chief Justice of India and his seniormost
colleagues, which is constitutionally requisite. They number four in the case of a
recommendation for appointment to the Supreme Court and two in the case of a
recommendation for appointment to a High Court. Judicial review is also available if,
in making the decision, the views of the seniormost Supreme Court Judge who comes
from the High Court of the proposed appointee to the Supreme Court have not been
taken into account. Similarly, if, in connection with an appointment, or a
recommended appointment, to a High Court, the views of the Chief Justice and senior
Judges of the High Court, as aforestated, and of Supreme Court Judges
knowledgeable about that High Court have not been sought or considered by the
Chief Justice of India and his two seniormost puisne Judges, judicial review is
available. Judicial review is also available when the appointee is found to lack
eligibility.
[On transfer of a Judge from one High Court to another, the Learned Judge, relying on
the precedents, observed:]
[B]efore recommending the transfer of a puisne Judge of one High Court to another
High Court, also as a puisne Judge, the Chief Justice of India must consult a
plurality of Judges. He must take into account the views of the Chief Justice of
the High Court from which the Judge is to be transferred, any Judge of the
Supreme Court whose opinion may have significance in the case and atleast one
other senior Chief Justice of a High Court or any other person whose views he
considers relevant.
It is to our mind imperative, given the gravity involved in transferring High

Courts Judges, that the Chief Justice of India should obtain the views of the
Chief Justice of the High Court from which the proposed transfer is to be
effected as also the Chief Justice of the High Court to which the transfer is to be
effected. This is in accord with the majority judgment in the second Judges case
which postulates consultation with the Chief Justice of another High Court. The
Chief Justice of India should also take into account the views of one or more
Supreme Court Judges who are in a position to provide material which would
assist in the process of deciding whether or not a proposed transfer should take
place. These views should be expressed in writing and should be considered by
the Chief Justice of India and the four seniormost puisne Judges of the Supreme
Court. These views and those of each of the four seniormost puisne Judges
should be conveyed to the Government of India along with the proposal of
transfer. Unless the decision to transfer has been taken in the manner
aforestated, it is not decisive and does not bind the Government of India.
Wide based decision making such as this eliminates the possibility of bias or
arbitrariness. By reason of such elimination the remedy of judicial review can
legitimately be confined to a case where the transfer has been made or recommended
without obtaining views and reaching the decision in the manner aforestated.
What applies to the transfer of a puisne Judge of a High Court applies a well to the
transfer of the Chief Justice of a High Court as Chief Justice of another High Court
except that, in this case, only the views of one or more knowledgeable Supreme Court
Judges need to be taken into account.
[Finally, to summarise and two answer the questions asked by the President in the
Reference, the Learned Judge held:]
1. The expression "consultation with the Chief justice of India" in Articles 217(1)
and 222(1) of the Constitution of India requires consultation with a plurality of
Judges in the formation of the opinion of the Chief Justice of India. The sole,
individual opinion of the Chief Justice of India does not constitute "consultation"
within the meaning of the said Articles.
2. The transfer of puisne Judges is judicially reviewable only to this extent: that
the recommendation that has been made by the Chief Justice of India in this
behalf has not been made in consultation with the four seniormost puisne Judges
of the Supreme Court and/or that the views of the Chief Justice of the High
Court from which the transfer is to be effected and of the Chief Justice of the
High Court to which the transfer is to be effected have not been obtained.
3. The Chief Justice of India must make a recommendation to appoint a Judge of
the Supreme Court and to transfer a Chief Justice or puisne Judge of a High
Court in consultation with the four seniormost puisne Judges of the Supreme
Court. Insofar as an appointment to the High Court is concerned, the
recommendation must be made in consultation with the two seniormost puisne
Judges of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his individual capacity,
without consultation with other Judges of the Supreme Court, in respect of
materials and information conveyed by the Government of India for non-appointment
of a judge recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his

colleagues who are likely to be conversant with the affairs of the concerned High
Court does not refer only to those Judges who have that High Court as a parent
High Court. It does not exclude Judges who have occupied the office of a Judge or
Chief Justice of that High Court on transfer.
6. "Strong cogent reasons" do not have to be recorded as justification for a

departure from the order of seniority, in respect of each senior Judge who has
been passed over. What has to be recorded is the positive reason for the
recommendation.
7. The views of the Judges consulted should be in writing and should be conveyed
to the Government of India by the Chief Justice of India along with his views to the
extent set out in the body of this opinion.
8. The Chief Justice of India is obliged to comply with the norms and the requirement
of the consultation process, as aforestated, in making his recommendations to the
Government of India.
9. Recommendations made by the Chief Justice of India without complying with

the norms and requirements of the consultation process, as aforestated, are not
binding upon the Government of India.
Comment: Much-criticised as it is, no one can deny the efficacy of the Collegium as
a tool of ensuring Judicial independence, staring at the face of an unabashed executive
supremacy in the judicial appointment and transfer process, inasmuch as there had
been open public statements made by political leaders about the need to have a
“committed judiciary”. The safeguards referred to the Learned Judge in this reference
goes a long way in preserving the independence of the judicial process, which is an
absolute must in ensuring that the constitutional values are safeguarded from state
tyranny.
On the Constitutionality of the National Judicial Appointments Commission
Case: Supreme Court Advocates on Record Association v. Union of India, AIR

2015 SC 547 (Coram: Khehar, Chelameshwar, Lokur, Kurian Joseph, Goel, JJ.)
The constitutionality of the Constitution (Ninety Ninth Amendment) Act, 2014 and
the National Judicial Appointments Commission Act, 2014 (in short, the NJAC Act)
were challenged in this case. The impugned laws had provided for the setting up the
NJAC to recommend the appointment and transfer of judges. One of the primary
challenges to the NJAC, a body that would replace the collegiums system, was its
composition. The law provided for a six-member NJAC which would consist of the
Chief Justice of India, two seniormost Judges of the Supreme Court, the Union Law
Minister and two eminent persons selected by a committee consisting of the Chief
Justice of India, the Prime Minister and the Leader of Opposition in the Lok Sabha,
with the additional requirement that one among the two eminent persons should be a
woman, a minority or a person belonging to the Scheduled Castes or Scheduled
Tribes. The compositional challenge to such body was on the basis of the argument
that it undermined the independence of the judiciary, which is a part of the Basic
Structure. There were other challenges to the NJAC on the basis of its purported
functioning. For example, the law said that if there was any rejection of a particular
prospective candidate for appointment by two or more members of the NJAC, then
this name would be required to be dropped. This virtual veto power was also
challenged as being constitutionally unsustainable.
The Court, by a majority of 4:1, (majority: Khehar, Lokur, Kurian Joseph, Goel, JJ.,
dissent: Chelamseshwar, J.), declared the NJAC as unconstitutional. For the purposes
of this book, we will specifically focus on certain aspects of the order on merits
rendered by Khehar, J.
Per Khehar, J.:
[The Learned Judge, after outlining the legal background to the NJAC debate, decides
to test the Constitutional Amendment incorporating the NJAC on the touchstone of
the Basic Structure Doctrine. He observes:]
In almost all challenges, raised on the ground of violation of the “basic structure” to
constitutional amendments made under Article 368, and more particularly, those
requiring the compliance of the special and more rigorous procedure expressed in the
proviso under Article 368(2), the repeated assertion advanced at the hands of the
Union, has been the same. It has been the contention of the Union of India, that an
amendment to the Constitution, passed by following the procedure expressed in the
proviso to Article 368(2), constituted the will of the people, and the same was not
subject to judicial review. The same argument had been repeatedly rejected by this
Court by holding, that Article 368 postulates only a “procedure” for amendment of the
Constitution, and that, the same could not be treated as a “power” vested in the
Parliament to amend the Constitution, so as to alter, the “core” of the Constitution,
which has also been described as, the “basic features/basic structure” of the
Constitution. [...]
Therefore, even though the Parliament may have passed the Constitution (121st
Amendment) Bill, with an overwhelming majority, [...] it cannot be accepted,
that the same is exempted from judicial review. The scope of judicial review with
reference to a constitutional amendment and/or an ordinary legislation, whether
enacted by the Parliament or a State Legislature, cannot vary, so as to adopt
different standards, by taking into consideration the strength of the Members of
the concerned legislature, which had approved and passed the concerned Bill. If
a constitutional amendment breaches the “core” of the Constitution or destroys its
“basic or essential features” in a manner which was patently unconstitutional, it would
have crossed over forbidden territory. This aspect would undoubtedly fall within the
realm of judicial review. In the above view of the matter, it is imperative to hold,
that the impugned constitutional amendment, as also, the NJAC Act, would be
subject to judicial review on the touchstone of the “basic structure” of the
Constitution, and the parameters laid down by this Court in that behalf, even
though the impugned constitutional amendment may have been approved and
passed unanimously or by an overwhelming majority, and notwithstanding the
ratification thereof by as many as twenty-eight State Assemblies. [...]
[Moving on to the issue of ‘consultation’ versus ‘concurrence’ which forms the

centrepiece of the Judges’ Cases, he observes:]
[...] [T]he term “consultation” contained in Articles 124, 217 and 222 will have to
be read as assigning primacy to the opinion expressed by the Chief Justice of
India (based on a decision, arrived at by a collegium of Judges). [...] In the Second
and Third Judges cases, the above provisions were interpreted by this Court, as they
existed in their original format, i.e., in the manner in which the provisions were
adopted by the Constituent Assembly, on 26.11.1949 (which took effect on
26.01.1950). Thus viewed, we reiterate, that in the matter of appointment of
Judges to the higher judiciary, and also, in the matter of transfer of Chief
Justices and Judges from one High Court to any other High Court, under
Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and
his collegium of Judges, is liable to be accepted as an integral constituent of the
above provisions (as originally enacted). Therefore, when a question with
reference to the selection and appointment (as also, transfer) of Judges to the
higher judiciary is raised, alleging that the “independence of the judiciary” as a
“basic feature/structure” of the Constitution has been violated, it would have to
be ascertained whether the primacy of the judiciary exercised through the Chief
Justice of India (based on a collective wisdom of a collegium of Judges), had been
breached. Then alone, would it be possible to conclude, whether or not, the
“independence of the judiciary” as an essential “basic feature” of the Constitution,
had been preserved (and had not been breached).
[The Learned Judge goes on to articulate how this “primacy” in favour of the
Judiciary had always been an integral part of our constitutional scheme of things, as
embedded into the concept of “independence of judiciary”].
[Coming to the NJAC, the Learned Judge decided to analyse the question as to
whether the NJAC does safeguard the judicial primacy, which is so sacrosanct. He
analyses the provisions of the 99th Amendment and the NJAC Act in details and
answers in the negative. He opines:]
The exposition made by the learned Attorney General and some of the other learned
counsel representing the respondents, emerges from an over simplified and narrow
approach. The primacy vested in the Chief Justice of India based on the collective
wisdom of a collegium of Judges, needs a holistic approach. It is not possible for us to
accept, that the primacy of the judiciary would be considered to have been sustained,
merely by ensuring that the judicial component in the membership of the NJAC, was
sufficiently capable, to reject the candidature of an unworthy nominee. We are
satisfied, that in the matter of primacy, the judicial component of the NJAC, should be
competent by itself, to ensure the appointment of a worthy nominee, as well. Under
the substituted scheme, even if the Chief Justice of India and the two other senior
most Judges of the Supreme Court (next to the Chief Justice of India), consider a
nominee to be worthy for appointment to the higher judiciary, the concerned
individual may still not be appointed, if any two Members of the NJAC opine
otherwise. This would be out-rightly obnoxious, to the primacy of the judicial
component. The magnitude of the instant issue, is apparent from the fact that the two
“eminent persons” (lay persons, according to the learned Attorney General), could
defeat the unanimous recommendation made by the Chief Justice of India and the two
senior most Judges of the Supreme Court, favouring the appointment of an individual
under consideration. Without any doubt, [it is] demeaning primacy of the judiciary, in
the matter of selection and appointment of Judges to the higher judiciary. The reason
to describe it as being obnoxious is this – according to the learned Attorney General,
“eminent persons” had to be lay persons having no connection with the judiciary, or
even to the profession of advocacy, perhaps individuals who may not have any law
related academic qualification, such lay persons would have the collective authority,
to override the collective wisdom of the Chief Justice of India and two Judges of the
Supreme Court of India. The instant issue is demonstrably far more retrograde, when
the Union Minister in charge of Law and Justice also supports the unanimous view of
the judicial component, because still the dissenting voice of the “eminent persons”
would prevail. It is apparent, that primacy of the judiciary has been rendered a further
devastating blow, by making it extremely fragile.
When the issue is of such significance, as the constitutional position of Judges of the
higher judiciary, it would be fatal to depend upon the moral strength of individuals.
The judiciary has to be manned by people of unimpeachable integrity, who can
discharge their responsibility without fear or favour. There is no question of accepting
an alternative procedure, which does not ensure primacy of the judiciary in the matter
of selection and appointment of Judges to the higher judiciary (as also, in the matter
of transfer of Chief Justices and Judges of High Courts, to other High Courts). In the
above stated position, it is not possible to conclude, that the combination
contemplated for constitution of the NJAC, is such that would not be susceptible
to an easy breach of the “independence of the judiciary”.
[Therefore, he holds:]
Articles 124A(1) (a) and (b) do not provide for an adequate representation in the
matter, to the judicial component, to ensure primacy of the judiciary in the
matter of selection and appointment of Judges to the higher judiciary, and
therefore, the same are liable to be set aside and struck down as being violative
of the “basic structure” of the Constitution of India. Thus viewed, we are satisfied,
that the “basic structure” of the Constitution would be clearly violated, if the process
of selection of Judges to the higher judiciary was to be conducted, in the manner
contemplated through the NJAC. The impugned constitutional amendment, being
ultra vires the “basic structure” of the Constitution, is liable to be set aside.
[The Learned Judge also rejects the inclusion of the Union Law Minister and the two
“eminent persons”. For the first, he observes that this will definitely result in a
conflict of interest scenario, since the Union Government is a party to a vast majority
of cases before the Higher Judiciary. To the latter, his primary reason for rejection
was that two “lay persons” (in the opinion of the Attorney General) should not be
given the task of appointing Judges to the Higher Judiciary, which is such an
important constitutional duty. In fact, he argues that at best, a committee of such
“eminent persons” can be given a consultative role, and nothing more.]
[He also refers to the “Spoils” or “Patronage” system very much in vogue in India
where people close to the dispensations in power are given plum posts. He observed
from such experiences in non-judicial bodies that the judicial bodies should be
shielded from such political-executive interferences.]
[Coming to the constitutionality of the NJAC Act, the Attorney General had argued
that the law being an ordinary legislation, it could be tested on the basis of the Basic
Structure Doctrine, to which the Court opines:]
So far as the issue of examining the constitutional validity of an ordinary legislative

enactment is concerned, all the constitutional provisions, on the basis whereof the
concerned “basic feature” arises, are available. Breach of a single provision of the
Constitution, would be sufficient to render the legislation, ultra vires the Constitution.
In such view of the matter, it would be proper to accept a challenge based on
constitutional validity, to refer to the particular Article(s), singularly or collectively,
which the legislative enactment violates. And in cases where the cumulative effect of
a number of Articles of the Constitution is stated to have been violated, reference
should be made to all the concerned Articles, including the preamble, if necessary.
The issue is purely technical. Yet, if a challenge is raised to an ordinary legislative
enactment based on the doctrine of “basic structure”, the same cannot be treated
to suffer from a legal infirmity. That would only be a technical flaw. [...]
Therefore, when a challenge is raised to a legislative enactment based on the
cumulative effect of a number of Articles of the Constitution, it is not always
necessary to refer to each of the concerned Articles, when a cumulative effect of the
said Articles has already been determined, as constituting one of the “basic features”
of the Constitution. Reference to the “basic structure”, while dealing with an ordinary
legislation, would obviate the necessity of recording the same conclusion, which has
already been scripted while interpreting the Article(s) under reference, harmoniously.
We would therefore reiterate, that the “basic structure” of the Constitution is
inviolable, and as such, the Constitution cannot be amended so as to negate any
“basic features” thereof, and so also, if a challenge is raised to an ordinary
legislation based on one of the “basic features” of the Constitution, it would be
valid to do so. If such a challenge is accepted, on the ground of violation of the
“basic structure”, it would mean that the bunch of Articles of the Constitution
(including the preamble thereof, wherever relevant), which constitute the
particular “basic feature”, had been violated. We must however credit the
contention of the learned Attorney General by accepting, that it would be technically
sound to refer to the Articles which are violated, when an ordinary legislation is
sought to be struck down, as being ultra vires the provisions of the Constitution. But
that would not lead to the inference, that to strike down an ordinary legislative
enactment, as being violative of the “basic structure”, would be wrong. We therefore
find no merit in the contention advanced by the learned Attorney General, but for the
technical aspect referred to hereinabove.
[Even though it was not particularly necessary (since the invalidation of the
constitutional amendment had already rendered the NJAC Act a nullity), the Learned
Judge also goes into the provisions of the Act, and finds that some of the provisions
are unconstitutional].
Comment: The other Judges in the majority, with the exception of Chelamseshwar,
J., gave almost similar reasonings to declare the NJAC to be constitutionally
untenable. Thus, the collegium, despite its operational flaws and criticisms of opacity,
subjectivity and biases (which are getting more widely documented in the
contemporary scholarly literature and experiential observations), continues to remain
the only option available for the appointment and transfer of judges.
On Appointment of Additional Judges
Case: Shanti Bhushan v. Union of India, (2009) 1 SCC 657 (Coram: Pasayat,
Sharma, JJ.)
This case concerned a public interest litigation that sought for quashing of the a Judge
of the Madras High Court. His appointment was sought to be quashed on the ground
that the prescribed procedure as laid down in the Second and Third Judges case was
not followed. The petitioners contended that it was mandatory for the Chief Justice of
India to consult his senior colleagues before making such an appointment. They stated
that no such consultation had taken place in the present case, and the appointment was
made unilaterally by the CJI.
It has been argued that the then Chief Justice of India was of the view that the said
Judge was not fit to be appointed as a Permanent Judge, as there were severe
allegations of corruption against him. However, due to severe political pressure, his
tenure as an Additional Judge was extended twice by the Chief Justice, without
consulting the Collegium.
The Court took the view that it cannot retrospectively quash the appointment of the
said Judge as an Additional Judge, and that it cannot set the clock back. The Court
also gave a detailed pronouncement on the procedure to be followed during the
appointment of Additional and Permanent Judges in the High Courts. It stated that the
Chief Justice of the concerned High Court is not required to consult the concerned
High Court collegium while making a recommendation for the appointment of an
Additional Judge as a Permanent Judge of the High Court. Also, it was held that the
Chief Justice of India can act independently and need not consult the Collegium while
accepting a recommendation to appoint an Additional Judge as a Permanent Judge.
It also stated that if an Additional Judge is found to be unsuitable for being appointed
as a Permanent Judge, he should not be given an extension as an Additional Judge.
His extension should be rejected on the basis of the same parameters that rendered
him unsuitable for being appointed as a Permanent Judge.
Per Pasayat, J.:
[The Learned Judge referred to the various paragraphs of the Second Judges’ Case
referred to by both parties in support of their respective contentions. On the
constitutional status of Additional Judges, he opined:]
It is to be noted that an Additional Judge cannot be said to be on probation for

the purpose of appointment as a Permanent Judge. This position is clear from the
fact that when an Additional Judge is appointed there may not be vacancy for a
Permanent Judge. The moment a vacancy arises, the Chief Justice of the concerned
High Court is required to send a proposal for appointment of the Additional Judge as
a Permanent Judge. [...] The rigour of the scrutiny and the process of selection
initially as an Additional Judge and a Permanent Judge are not different. The
yardsticks are the same. Whether a person is appointed as an Additional Judge
or a Permanent Judge on the same date, he has to satisfy the high standards
expected to be maintained as a Judge.
Additionally, on being made permanent, the effect of such permanency relates back to
the date of initial appointment as an Additional Judge. [...] To begin with, while
making the recommendations for appointment of an Additional Judge as a
permanent Judge, Chief Justice of the High Court is not required to consult the
collegium of the High Court. Additionally, there is no requirement of enquiry by the
Intelligence Bureau. The Chief Justice while sending his recommendation has to
furnish statistics of month-wise disposal of cases and judgments rendered by a Judge
concerned as well as the number of cases reported in the Law Journals duly certified
by him. Further information required to be furnished regarding the total number of
working days, the number of days the concerned Judge attended the Court and the
days of his absence from Court during the period for which the disposal statistics are
sent. It [...] [A]t the stage of appointment of either as an Additional Judge or a
Permanent Judge, the Union Minister of Law, Justice and Company Affairs is
required to consider the recommendation in the light of such other reports as may be
available to the Government in respect of the names under consideration. The
complete material would then be forwarded to the Chief Justice of India for his
advice. This procedure is not required to be followed when an Additional Judge
is appointed as a Permanent Judge. [...]
As rightly submitted by learned counsel for the Union of India, unless the
circumstances or events arise subsequent to the appointment as an Additional
Judge, which bear adversely on the mental and physical capacity, character and
integrity or other matters the appointment as a permanent Judge has to be
considered in the background of what has been stated in S.P. Gupta's case. [The
First Judges’ Case]. Though there is no right of automatic extension or
appointment as a permanent Judge, the same has to be decided on the
touchstone of fitness and suitability (physical, intellectual and moral). The
weightage required to be given cannot be lost sight of. As Justice Pathak J, had
succinctly put it, there would be reduced emphasis with which the consideration
would be exercised though the process involves the consideration of all the
concomitant elements and factors which entered into the process of consultation at the
time of appointment earlier as an additional Judge. [...]
Having regard to the fact that there is already a full fledged participative
consultation in the backdrop of pluralistic view at the time of initial appointment
as Additional Judge or Permanent Judge, repetition of the same process does not
appear to be the intention.
[On these grounds, therefore, the Learned Judge found that there is no legal necessity
for the Chief Justice to consult the Collegium. However, on the issue of the
unsuitability of such Additional Judge with questionable impeccability of character,
he agreed with the petitioner. He observed:]
If a person [...] is unsuitable to be considered for appointment as a permanent

Judge because of circumstances and events which bear adversely on the mental
and physical capacity, character and integrity or other relevant matters
rendering it unwise for appointing him as a permanent Judge, same yardstick
has to be followed while considering whether any extension is to be given to him
as an Additional Judge. A person who is functioning as an Additional
Judge cannot be considered in such circumstances for re-appointment as an
Additional Judge. If the factors which render him unsuitable for appointment as
a permanent Judge exist, it would not only be improper but also undesirable to
continue him as an Additional Judge.
Comment: The decision in this case starts off as a logical extension of the Second
Judges’ Case, insofar as it builds upon and clarifies the points made in that case. It
vests a lot of responsibility on the Chief Justice to ensure the integrity of the person to
be appointed as an Additional Judge.
On Administrative Bodies and the Principle of Natural Justice
Case: A.K. Kraipak v. Union of India, AIR 1970 SC 150, (Coram: Hidayatullah,
C.J., Shelat, Bhargava, Vishishtha, Hegde, Grover, JJ.)
A special selection board was constituted in pursuance of the All India Forest
Services Act, 1951 for selecting junior and senior officers serving in Jammu and
Kashmir. One of the members of the board was Chief Conservator of Forests,
Naqishbund, who was also one of the candidates in consideration. The Board made
the selection, and the individual in consideration was in the top of the list. Though he
did not sit in the board for his own selection and deliberations, it was still questioned
on grounds of violation of the principles of Natural Justice.
Per Hegde, J.:
[The Learned Judge refers to the rival contentions with respect to the scope of the
power exercised by the Selection Board. While the petitioners argue that it is exercise
of a quasi-judicial power, the respondents contend that it is only an administrative
power. The Learned Judge, in order to contextualize the two arguments in light of the
application of the principle of Natural Justice, opines:]
The dividing line between an administrative power and a quasi-judicial power is

quite thin and is being gradually obliterated. For determining whether a power is
an administrative power or a quasi-judicial power one has to look to the nature of the
power conferred, the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the exercise of that power
and the manner in which that power is expected to be exercised. Under our
Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by
the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the
administrative bodies is increasing at a rapid rate. The concept of rule of law would
lose its vitality if the instrumentalities of the State are not charged with the duty
of discharging their functions in a fair and just manner. The requirement of
acting judicially in essence is nothing but a requirement to act justly and fairly
and not arbitrarily or capriciously. The procedures which are considered inherent
in the exercise of a judicial power are merely those which facilitate if not ensure a just
and fair decision. In recent years the concept of quasi-judicial power has been
undergoing a radical change. What was considered as an administrative power some
years back is now being considered as a quasi-judicial power. [...]
[The Learned Judge opines that even if the said functioning of the Selection Board
would be taken out of the ambit of Quasi-Judicial powers and brought within the
ambit of administrative powers, the broad underlying principles of ensuring
procedural fairness shall remain unaffected. He holds:]
It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for
the purpose of the present case we shall assume that the power exercised by the
selection board was an administrative power and test the validity of the impugned
selections on that basis. It is unfortunate that Naquishbund was appointed as one of
the members of the selection board. It is true that ordinarily the Chief Conservator of
Forests in a State should be considered as the most appropriate person to be in the
selection board. He must be expected to know his officers thoroughly, their
weaknesses as well as their strength. His opinion as regards their suitability for
selection to the All India Service is entitled to great weight. But then under the
circumstances it was improper to have included Naquishbund as a member of the
selection board. He was one of the persons to be considered for selection. It is against
all canons of justice to make a man judge in his own cause. It is true that he did not
participate in the deliberations of the committee when his name was considered. But
then the very fact that he was a member of the selection board must have had its own
impact on the decision of the selection board. Further admittedly he participated in the
deliberations of the selection board when the claims of his rivals [...] was considered.
He was also party to the preparation of the list of selected candidates in order of
preference. At every stage of this participation in the deliberations of the selection
board there was a conflict between his interest and duty. Under those circumstances it
is difficult to believe that he could have been impartial. The real question is not
whether he was biased. It is difficult to prove the state of mind of a person.
Therefore what we have to see is whether there is reasonable ground for
believing that he was likely to have been biased. We agree with the learned
Attorney General that a mere suspicion of bias is not sufficient. There must be a
reasonable likelihood of bias. In deciding the question of bias we have to take
into consideration human probabilities and ordinary course of human conduct. It
was in the interest of Naqishbund to keen out his rivals in order to secure his position
from further challenge. Naturally he was also interested in safeguarding his position
while preparing the list of selected candidates.
[He refutes the contention that Naqishbund did not influence the decision-making of
the other members of the selection board who had stated the same on affidavit. He
observes that it is impossible to assume that no discussion ever took place during
selection, and that no weight was placed on Naqishbund’s opinions].
[On the applicability of the principles of Natural Justice to administrative

proceedings, he rejects the argument of the Attorney General that the principles are
relevant only to judicial and quasi-judicial proceedings. He opines:]
Till very recently it was the opinion of the courts that unless the authority concerned
was required by the law under which it functioned to act judicially there was no room
for the application of the rules of natural justice. The validity of that limitation is now
questioned. If the purpose of the rules of natural justice is to prevent miscarriage
of justice one fails to see why those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries. Enquiries which were
considered administrative at one time are now being considered as quasi-judicial in
character. Arriving at a just decision is the aim of both quasi- judicial enquiries as
well as administrative enquiries. An unjust decision in an administrative enquiry may
have more far reaching effect than a decision in a quasi-judicial enquiry.
[Therefore, he holds that violation of the principles of natural justice can be a ground
of challenging administrative decisions as well].
Comment: This decision has far-reaching impact, not just with respect to the
enhancement of the jurisdiction of courts to also cover challenges to administrative
determinations, but also with respect to the acknowledgement of the thinning line of
distinction between administrative and quasi-judicial bodies.
On Judicial Review and the Basic Structure Doctrine
Case: L.Chandrakumar v. Union of India, AIR 1997 SC 1125 (Coram: Ahmadi,

C.J., Punchhi, Ramaswamy, Bharucha, Saghir Ahmad, Venkataswami, Thomas,
JJ.)
In this case, there were three substantial questions of law before the Constitution
Bench. These questions are as follows:
1. Article 323-A and 323-B of the Constitution conferred upon Parliament and State
Legislatures the power to create Tribunals for a specified set of disputes and
complaints. The Tribunals created under Article 323-A or 323-B could exclude the
jurisdiction of “all Courts”, except that of the Supreme Court under Article 136 of the
Constitution. The Court had to consider whether Article 323-A and 323-B went
against the power of judicial review conferred on the High Courts under
Articles 226/227, and on the Supreme Court under Article 32 of the Constitution.
2. The second question to be considered was whether the Tribunals, constituted under
Article 323-A or 323-B had the competence to test the constitutional validity of a
statutory provision.
3. The third question was whether the Tribunals, as they are functioning at present, can
be said to be effective substitutes for the High Courts in discharging the power of
judicial review? If not, what are the changes required to make them conform to their
founding objectives?
Per Ahmadi, C.J.:
[The Learned Chief Justice went into an elaborate discussion on the historical and
legal background of the trend of tribunalisation, the etymology of Articles 323A and
323B and the judicial precedents on the said subject. He then went into a discussion as
to whether Articles 323A and 323B which lay down the functions of the Tribunals do
in any way violate Judicial Review, which is a key component of the Basic Structure
Doctrine. He discussed cases on the Basic Structure Doctrine, starting with
Kesavananda, to analyse this question. He opined:]
To express our opinion on the issue whether the power of judicial review vested in the
High Courts and into the Supreme Court under Articles 226/227 and 32 is part of the
basic structure of the Constitution, we must first attempt to understand what
constitutes the basic structure of the Constitution. The Doctrine of basic structure was
evolved in Kesavananda Bharati's case. However, as already mentioned, that case did
not lay down that the specific and particular features mentioned in that judgment
alone would constitute the basic structure of our Constitution. Indeed, in the
judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and Jaganmohan Reddy,
J., there are specific observations to the effect that their list of essential features
comprising the basic structure of the Constitution are illustrative and are not intended
to be exhaustive. In Indira Gandhi's case, Chandrachud, J. held that the proper
approach for a Judge who is confronted with the question whether a particular facet of
the Constitution is part of the basic structure, is to examine, in each individual case,
the place of the particular feature in the scheme of our Constitution, its object and
purpose, and the consequences of its denial on the integrity of our Constitution as a
fundamental instrument for the governance of the country. This approach was
specifically adopted by Bhagwati, J. in Minerva Mill's case and is now regarded as the
definitive test in this field of Constitutional Law.
We find that the various factors mentioned in the test evolved by Chandrachud, J.
have already been considered by decisions of various Benches of this Court that have
been referred to in the course of our analysis. From their conclusions, [...] it appears
that this Court has always considered the power of judicial review vested in the High
Courts and in this Court under Articles 226 and 32 respectively, enabling legislative
action to be subjected to the scrutiny of superior courts, to be integral to our
constitutional scheme. [...]
The legitimacy of the power of Courts within constitutional democracies to review

legislative action has been questioned since the time it was first conceived. The
Constitution of India, being alive to such criticism, has, while conferring such power
upon the higher judiciary, incorporated important safeguards. An analysis of the
manner in which the Framers of our Constitution incorporated provisions relating to
the judiciary would indicate that they were very greatly concerned with securing the
independence of the judiciary. These attempts were directed at ensuring that the
judiciary would be capable of effectively discharging its wide powers of judicial
review. While the Constitution confers the power to strike down laws upon the High
Courts and the Supreme Court, it also contains elaborate provisions dealing with the
tenure, salaries, allowances, retirement age of Judges as well as the mechanism for
selecting Judges to the superior courts. The inclusion of such elaborate provisions
appears to have been occasioned by the belief that, armed by such provisions, the
superior courts would be insulated from any executive or legislative attempts to
interfere with the making of their decisions. The Judges of the superior courts have
been entrusted with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of
power envisaged by the Constitution is maintained and that the legislature and the
executive do not, in the discharge of their functions, transgress constitutional
limitations. It is equally their duty to oversee that the judicial decisions rendered by
those who man the subordinate courts and tribunals do not fall foul of strict standards
of legal correctness and judicial independence. The constitutional safeguards which
ensure the independence of the Judges of the superior judiciary, are not available to
the Judges of the subordinate judiciary or to those who man Tribunals created by
ordinary legislations. Consequently, Judges of the latter category can never be
considered full and effective substitutes for the superior judiciary in discharging the
function of constitutional interpretation. We, therefore, hold that the power of
judicial review over legislative action vested in the High Courts under Articles
226 and in this Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to test
the constitutional validity of legislations can never be ousted or excluded.
We also hold that the power vested in the High Courts to exercise judicial
superintendence over the decisions of all Courts and Tribunals within their
respective jurisdictions is also part of the basic structure of the Constitution. This
is because a situation where the High Courts are divested of all other judicial
functions apart from that of constitutional interpretation, is equally to be avoided.
However, it is important to emphasise that though the subordinate judiciary or

Tribunals created under ordinary legislations cannot exercise the power of
judicial review of legislative action to the exclusion of the High Courts and the
Supreme Court, there is no constitutional prohibition against their performing a
supplemental -as opposed to a substitution - role in this respect. [...]
[He underscored the relevance and utility of the Tribunals to the adjudicatory process.
He held:]
If the power under Article 32 of the Constitution, which has been described as the
"heart" and "soul" of the Constitution, can be additionally conferred upon "any other
court", there is no reason why the same situation cannot subsist in respect of the
jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So
long as the jurisdiction of the High Courts under Articles 226/227 and that of
this Court under Article 32 is retained, there is no reason why the power to test
the validity of legislations against the provisions of the Constitution cannot be
conferred upon Administrative Tribunals created under the Act or upon
Tribunals created under Article 323B of the Constitution.
[Coming to the issue as to whether Tribunals can be allowed to exclude the

jurisdiction of the High Courts, he held:]
We may first address the issue of exclusion of the power of judicial review of the
High Courts. We have already held that in respect of the power of judicial review, the
jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It
has been contended before us that the Tribunals should not be allowed to adjudicate
upon matters where the vires of legislations is questioned, and that they should restrict
themselves to handling matters where constitutional issues are not raised. We cannot
bring ourselves to agree to this proposition as that may result in splitting up
proceedings and may cause avoidable delay. If such a view were to be adopted, it
would be open for litigants to raise constitutional issues, many of which may be quite
frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the
Tribunals. Moreover, even in these special branches of law, some areas do involve the
consideration of constitutional questions on a regular basis; for instance, in service
law matters, a large majority of cases involve an interpretation of Articles 14, 15 and
16 of the Constitution. To hold that the Tribunals have no power to handle
matters involving constitutional issues would not serve the purpose for which
they were constituted. On the other hand, to hold that all such decisions will be
subject to the jurisdiction of the High Courts under Articles 226/227 of the
Constitution before a Division Bench of the High Court within whose territorial
jurisdiction the Tribunal concerned falls will serve two purposes. While saving
the power of judicial review of legislative action vested in the High Courts
under Article 226/227 of the Constitution, it will ensure that frivolous claims are
filtered out through the process of adjudication in the Tribunal. The High Court
will also have the benefit of a reasoned decision on merits which will be of use to
it in finally deciding the matter.
It has also been contended before us that even in dealing with cases which are
properly before the Tribunals, the manner in which justice is dispensed by them
leaves much to be desired. Moreover, the remedy provided in the parent statutes, by
way of an appeal by special leave under Article 136 of the Constitution, is too costly
and inaccessible for it to be real and effective. Furthermore, the result of providing
such a remedy is that the docket of the Supreme Court is crowded with decisions of
Tribunals that are challenged on relatively trivial grounds and it is forced to perform
the role of a First Appellate Court. We have already emphasised the necessity for
ensuring that the High Courts are able to exercise judicial superintendence over the
decisions of Tribunals under Article 227 of the Constitution. [...] Having regard to
both the afore-stated contentions, we hold that all decisions of Tribunals, whether
created pursuant to Article 323A or Article 323B of the Constitution, will be
subject to the High Court's writ jurisdiction under Articles 226/227 of the
Constitution, before a Division Bench of the High Court within whose territorial
jurisdiction the particular Tribunal falls.
We may add here that under the existing system, direct appeals have been provided
from the decisions of all Tribunals to the Supreme Court under Article 136 of the
Constitution. In view of our above-mentioned observations, this situation will also
stand modified. In the view that we have taken, no appeal from the decision of a
Tribunal will directly lie before the Supreme Court under Article 136 of the
Constitution; but instead, the aggrieved party will be entitled to move the High
Court under Articles 226/227 of the Constitution and from the decision of the
Division Bench of the High Court the aggrieved party could move this Court
under Article 136 of the Constitution.
Before moving on to other aspects, we may summarise our conclusions on the

jurisdictional powers of these Tribunals. The Tribunals are competent to hear
matters where the vires of statutory provisions are questioned. However, in
discharging this duty, they cannot act as substitutes for the High Courts and the
Supreme Court which have, under our constitutional setup, been specifically
entrusted with such an obligation. Their function in this respect is only
supplementary and all such decisions of the Tribunals will be subject to scrutiny
before a Division Bench of the respective High Courts. The Tribunals will
consequently also have the power to test the vires of subordinate legislations and
rules. However, this power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any question regarding the vires of their
parent statutes following the settled principle that a Tribunal which is a creature of an
Act cannot declare that very Act to be unconstitutional. In such cases alone, the
concerned High Court may be approached directly. All other decisions of these
Tribunals, rendered in cases that they are specifically empowered to adjudicate upon
by virtue of their parent statutes, will also be subject to scrutiny before a Division
Bench of their respective High Courts. We may add that the Tribunals will, however,
continue to act as the only courts of first instance in respect of the areas of law
for which they have been constituted. By this, we mean that it will not be open
for litigants to directly approach the High Courts even in cases where they
question the vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal.
[Finally, the Court went on to adjudicate on the validity of the Constitutional

Amendments introducing Articles 323A and 323B on the touchstone of the Basic
Structure Doctrine. He held:]
In view of the reasoning adopted by us, we hold that Clause 2(d) of Article
323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction
of the High Courts and the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. [...]The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the Supreme Court under Article 32 of
the Constitution is part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by Articles
226/227 and 32 of the Constitution. The Tribunals created under Article
323A and Article 323B of the Constitution are possessed of the competence to test the
constitutional validity of statutory provisions and rules. All decisions of these
Tribunals will, however, be subject to scrutiny before a Division Bench of the High
Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will,
nevertheless, continue to act like Courts of first instance in respect of the areas of law
for which they have been constituted. It will not, therefore, be open for litigants to
directly approach the High Courts even in cases where they question the vires of
statutory legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.
Comment: The decision is a tremendously significant one as it outlines the nature

and extent of the Tribunals, insofar as they are perceived as supplemental, but
definitely not substitutive, to the functioning of the High Courts. It makes it amply
clear that under no circumstances can the power of judicial review of the High Courts
and the Supreme Court can be curtailed, as they form a core component of the Basic
Structure of the Constitution.
On Tribunals and their Constitutionality
Case: Union of India v. R. Gandhi, (2010) 11 SCC 1 (Coram: Raveendran,

Balakrishnan, Jain, Sathasivam, Panchal, JJ.)
This case involved a challenge to the constitutionality of the National Company Law
Tribunal (NCLT) and the National Company Law Appellate Tribunal set up under
Chapters 1B and 1C of the Companies Act, 1956 (the Chapters were inserted into the
parent law by the Companies (Second Amendment) Act, 2002). The main argument
advanced against these Tribunals was that Article 323B of the Constitution, which
provides for the setting up of Tribunals, refers to an exhaustive list of subject matters
in clause (2) on which such Tribunals could adjudicate dispute. Therefore, it was
argued that since settlement of company disputes was not one of the subject matters
mentioned in clause (2), therefore, such Tribunals could not be set up without
bringing about an amendment to Article 323B. Moreover, it was argued that
constitution of such Tribunals was a violation of the Doctrine of Separation of Powers
and Independence of Judiciary, both key elements of the Basic Structure. In addition,
there were constitutional challenges to some sections of Chapters 1B and 1C.
Per Raveendran, J.:
[The Learned Judge outlined the differences and similarities between the functioning
of the Courts and Tribunals. He opined:]
The term `Courts' refers to places where justice is administered or refers to Judges
who exercise judicial functions. Courts are established by the state for administration
of justice that is for exercise of the judicial power of the state to maintain and uphold
the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other
hand are special alternative institutional mechanisms, usually brought into existence
by or under a statute to decide disputes arising with reference to that particular statute,
or to determine controversies arising out of any administrative law. Courts refer to
Civil Courts, Criminal Courts and High Courts. Tribunals can be either private
Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution
(Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals
authorized by the Constitution (Administrative Tribunals under Article 323A and
Tribunals for other matters under Article 323B) or Statutory Tribunals which are
created under a statute (Motor Accident Claims Tribunal, Debt Recovery Tribunals
and consumer fora). Some Tribunals are manned exclusively by Judicial Officers
(Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial
Tribunals). Other statutory Tribunals have Judicial and Technical Members
(Administrative Tribunals, TDSAT, Competition Appellate Tribunal, Consumer fora,
Cyber Appellate Tribunal, etc).
[...]
In my opinion, a Court in the strict sense is a Tribunal which is a part of the ordinary
hierarchy of Courts of Civil Judicature maintained by the State under its constitution
to exercise the judicial power of the State. These Courts perform all the judicial
functions of the State except those that are excluded by law from their
jurisdiction. [He referred to an English precedent to state that classified such
“Judicial Functions” into two categories - the discharge of duties exercisable by a
judge or by justices in court, or to administrative duties which need not be performed
in court, but in respect of which it is necessary to being to bear a judicial mind - that
is, a mind to determine what is fair and just in respect of the matters under
consideration. This performance of “judicial functions” being common to both Courts
and Tribunals, the Learned Judge nevertheless pointed out there are certain key
differences between the two. He observed:]
(i) Courts are established by the State and are entrusted with the State's inherent
judicial power for administration of justice in general. Tribunals are established
under a statute to adjudicate upon disputes arising under the said statute, or
disputes of a specified nature. Therefore, all courts are Tribunals. But all
Tribunals are not courts.
(ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the
sole member, or can have a combination of a Judicial Member and a Technical
Member who is an èxpert' in the field to which Tribunal relates. Some highly
specialized fact finding Tribunals may have only Technical Members, but they
are rare and are exceptions.
(iii) While courts are governed by detailed statutory procedural rules, in

particular the Code of Civil Procedure and Evidence Act, requiring an elaborate
procedure in decision making, Tribunals generally regulate their own procedure
applying the provisions of the Code of Civil Procedure only where it is required,
and without being restricted by the strict rules of Evidence Act.
[The Learned Judge went on to look at the Doctrines of Independence of Judiciary

and Separation of Powers in light of the increasing emphasis on Tribunalisation, and
stated:]
Only if continued judicial independence is assured, Tribunals can discharge

judicial functions. In order to make such independence a reality, it is
fundamental that the members of the Tribunal shall be independent persons, not
civil servants. They should resemble courts and not bureaucratic Boards. Even the
dependence of Tribunals on the sponsoring or parent department for infrastructural
facilities or personnel may undermine the independence of the Tribunal. [He referred
to the changes in the Law in U.K. pursuant to the Leggatt Committee
recommendations, and the reform measures suggested by the Indian Supreme Court in
L. Chandrakumar to observe:]
But in India, unfortunately Tribunals have not achieved full independence. The
Secretary of the concerned `sponsoring department' sits in the Selection Committee
for appointment. When the Tribunals are formed, they are mostly dependant on their
sponsoring department for funding, infrastructure and even space for functioning. The
statutes constituting Tribunals routinely provide for members of civil services from
the sponsoring departments becoming members of the Tribunal and continuing their
lien with their parent cadre. Unless wide ranging reforms as were implemented in
United Kingdom and as were suggested by Chandra Kumar are brought about,
Tribunals in India will not be considered as independent.
[In answering the question as to whether the Parliament can transfer large scale the
judicial powers exercisable by Courts to Tribunals, he observed:]
The Constitution contemplates judicial power being exercised by both courts and
Tribunals. Except the powers and jurisdictions vested in superior courts by the
Constitution, powers and jurisdiction of courts are controlled and regulated by
Legislative enactments. High Courts are vested with the jurisdiction to entertain and
hear appeals, revisions and references in pursuance of provisions contained in several
specific legislative enactments. If jurisdiction of High Courts can be created by
providing for appeals, revisions and references to be heard by the High Courts,
jurisdiction can also be taken away by deleting the provisions for appeals, revisions or
references. It also follows that the legislature has the power to create Tribunals
with reference to specific enactments and confer jurisdiction on them to decide
disputes in regard to matters arising from such special enactments. Therefore it
cannot be said that legislature has no power to transfer judicial functions
traditionally performed by courts to Tribunals.
The argument that there cannot be `whole-sale transfer of powers' is misconceived. It

is nobody's case that the entire functioning of courts in the country is transferred to
Tribunals. The competence of the Parliament to make a law creating Tribunals to
deal with disputes arising under or relating to a particular statute or statutes
cannot be disputed. When a Tribunal is constituted under the Companies Act,
empowered to deal with disputes arising under the said Act and the statute
substitutes the word `Tribunal' in place of `High Court' necessarily there will be
`whole-sale transfer' of company law matters to the Tribunals. It is an inevitable
consequence of creation of Tribunal, for such disputes, and will no way affect the
validity of the law creating the Tribunal.
[Moving on to the challenge to the constitutionality of such Tribunals on the basis of
the fact that in addition to Judicial members, there are also provisions for Technical
members in the Tribunal, the Learned judge, referring to Chandra Kumar, held:]
[W]hen we say that Legislature has the competence to make laws, providing which
disputes will be decided by courts, and which disputes will be decided by Tribunals, it
is subject to constitutional limitations, without encroaching upon the independence of
judiciary and keeping in view the principles of Rule of Law and separation of powers.
If Tribunals are to be vested with judicial power hitherto vested in or exercised by
courts, such Tribunals should possess the independence, security and capacity
associated with courts. If the Tribunals are intended to serve an area which
requires specialized knowledge or expertise, no doubt there can be Technical
Members in addition to Judicial Members. Where however jurisdiction to try
certain category of cases are transferred from Courts to Tribunals only to
expedite the hearing and disposal or relieve from the rigours of the Evidence Act
and procedural laws, there is obviously no need to have any non-judicial
Technical Member. In respect of such Tribunals, only members of the Judiciary
should be the Presiding Officers/members. Typical examples of such special
Tribunals are Rent Tribunals, Motor Accident Tribunals and Special Courts under
several Enactments. Therefore, when transferring the jurisdiction exercised by
Courts to Tribunals, which does not involve any specialized knowledge or
expertise in any field and expediting the disposal and relaxing the procedure is
the only object, a provision for technical members in addition to or in
substitution of judicial members would clearly be a case of dilution of and
encroachment upon the independence of the Judiciary and Rule of Law and
would be unconstitutional.
[...]
Having held that Legislation can transfer certain areas of litigation from Courts to
Tribunals and recognizing that the legislature can provide for technical members in
addition to judicial members in such Tribunals, let us turn our attention to the
question as to who can be the members. If the Act provides for a Tribunal with a
judicial member and a technical member, does it mean that there are no limitations
upon the power of the legislature to prescribe the qualifications for such technical
member? The question will also be whether any limitations can be read into the
competence of the legislature to prescribe the qualification for the judicial member?
The answer, of course, depends upon the nature of jurisdiction that is being
transferred from the Courts to Tribunals. Logically and necessarily, depending upon
whether the jurisdiction is being shifted from High Court, or District Court or a
Civil Judge, the yardstick will differ. It is for the court which considers the
challenge to the qualification, to determine whether the legislative power has
been exercised in a manner in consonance with the constitutional principles and
constitutional guarantees. We may examine this question with reference to the
company jurisdiction exercised by the High Court for nearly a century being shifted to
a tribunal on the ground that tribunal consisting of a judicial and technical members
will be able to dispose of the matters expeditiously and that the availability of
expertise of the technical members will facilitate the decision making to be more
practical, effective and meaningful. Does this mean that the Legislature can provide
for persons not properly qualified to become members? Let us take some examples.
Can the legislature provide that a law graduate with a masters' degree in company law
can be a judicial member without any experience as a lawyer or a judge? Or can the
legislature provide that an Upper Division Clerk having fifteen years experience in the
company law department but with a Law Degree is eligible to become a Judicial
Member? Or can the legislature provide that a `social worker' with ten years
experience in social work can become a technical member? Will it be beyond scrutiny
by way of judicial review?
[...]
The question is whether a line can be drawn, and who can decide the validity or
correctness of such action. The obvious answer is that while the Legislature can
make a law providing for constitution of Tribunals and prescribing the eligibility
criteria and qualifications for being appointed as members, the superior courts
in the country can, in exercise of the power of judicial review, examine whether
the qualifications and eligibility criteria provided for selection of members is
proper and adequate to enable them to discharge judicial functions and inspire
confidence.
[On the contention that the constitution of the NCLT and the NCLAT violates the
Doctrines of Separation of Powers and Independence of Judiciary, the Learned Judge
began with the observation that the Basic Structure Doctrine had always been
envisaged to test the constitutional validity of Amendments and not ordinary
Legislations. However, he gave the issue a highly interesting interpretative twist when
he held:]
Independent judicial tribunals for determination of the rights of citizens, and for
adjudication of the disputes and complaints of the citizens, is a necessary concomitant
of the Rule of Law. Rule of Law has several facets, one of which is that disputes of
citizens will be decided by Judges who are independent and impartial; and that
disputes as to legality of acts of the Government will be decided by Judges who are
independent of the Executive. Another facet of Rule of Law is equality before law.
The essence of equality is that it must be capable of being enforced and adjudicated
by an independent judicial forum. Judicial independence and separation of judicial
power from the Executive are part of the common law traditions implicit in a
Constitution like ours which is based on the Westminster model.
The fundamental right to equality before law and equal protection of laws
guaranteed by Article 14 of the Constitution, clearly includes a right to have the
person's rights, adjudicated by a forum which exercises judicial power in an
impartial and independent manner, consistent with the recognized principles of
adjudication. Therefore wherever access to courts to enforce such rights is sought to
be abridged, altered, modified or substituted by directing him to approach an
alternative forum, such legislative act is open to challenge if it violates the right to
adjudication by an independent forum. Therefore, though the challenge by MBA is on
the ground of violation of principles forming part of the basic structure, they are
relatable to one or more of the express provisions of the Constitution which gave rise
to such principles. Though the validity of the provisions of a legislative act cannot
be challenged on the ground it violates the basic structure of the constitution, it
can be challenged as violative of constitutional provisions which enshrine the
principles of Rule of Law, separation of power and independence of Judiciary.
[He summarised his observations, as the following:]

(a) A legislature can enact a law transferring the jurisdiction exercised by courts
in regard to any specified subject (other than those which are vested in courts by
express provisions of the Constitution) to any tribunal.
(b) All courts are tribunals. Any tribunal to which any existing jurisdiction of
courts is transferred should also be a Judicial Tribunal. This means that such
Tribunal should have as members, persons of a rank, capacity and status as
nearly as possible equal to the rank, status and capacity of the court which was
till then dealing with such matters and the members of the Tribunal should have
the independence and security of tenure associated with Judicial Tribunals.
(c) Whenever there is need for `Tribunals', there is no presumption that there
should be technical members in the Tribunals. When any jurisdiction is shifted
from courts to Tribunals, on the ground of pendency and delay in courts, and the
jurisdiction so transferred does not involve any technical aspects requiring the
assistance of experts, the Tribunals should normally have only judicial members.
Only where the exercise of jurisdiction involves inquiry and decisions into technical
or special aspects, where presence of technical members will be useful and necessary,
Tribunals should have technical members. Indiscriminate appointment of technical
members in all Tribunals will dilute and adversely affect the independence of the
Judiciary.
(d) The Legislature can re-organize the jurisdictions of Judicial Tribunals. For
example, it can provide that a specified category of cases tried by a higher court
can be tried by a lower court or vice versa (A standard example is the variation of
pecuniary limits of courts). Similarly while constituting Tribunals, the Legislature
can prescribe the qualifications/eligibility criteria. The same is however subject
to Judicial Review. If the court in exercise of judicial review is of the view that such
tribunalisation would adversely affect the independence of judiciary or the standards
of judiciary, the court may interfere to preserve the independence and standards of
judiciary. Such an exercise will be part of the checks and balances measures to
maintain the separation of powers and to prevent any encroachment, intentional or
unintentional, by either the legislature or by the executive.
[Coming to the questions on the constitutionality of the NCLT and the NCLAT, he
opined:]
The issue is not whether judicial functions can be transferred from courts to
Tribunals. The issue is whether judicial functions can be transferred to
Tribunals manned by persons who are not suitable or qualified or competent to
discharge such judicial powers or whose independence is suspect. We have
already held that the Legislature has the competence to transfer any particular
jurisdiction from courts to Tribunals provided it is understood that the Tribunals
exercise judicial power and the persons who are appointed as President/Chairperson/
Members are of a standard which is reasonably approximate to the standards of main
stream Judicial functioning. On the other hand, if a Tribunal is packed with
members who are drawn from the civil services and who continue to be
employees of different Ministries or Government Departments by maintaining
lien over their respective posts, it would amount to transferring judicial
functions to the executive which would go against the doctrine of separation of
power and independence of judiciary.
Legislature is presumed not to legislate contrary to rule of law and therefore know
that where disputes are to be adjudicated by a Judicial Body other than Courts, its
standards should approximately be the same as to what is expected of mainstream
Judiciary. Rule of law can be meaningful only if there is an independent and impartial
judiciary to render justice. An independent judiciary can exist only when persons with
competence, ability and independence with impeccable character man the judicial
institutions. When the legislature proposes to substitute a Tribunal in place of the
High Court to exercise the jurisdiction which the High Court is exercising, it goes
without saying that the standards expected from the Judicial Members of the Tribunal
and standards applied for appointing such members, should be as nearly as possible as
applicable to High Court Judges, which are apart from a basic degree in law, rich
experience in the practice of law, independent outlook, integrity, character and good
reputation. It is also implied that only men of standing who have special expertise in
the field to which the Tribunal relates, will be eligible for appointment as Technical
members. Therefore, only persons with a judicial background, that is, those who have
been or are Judges of the High Court and lawyers with the prescribed experience, who
are eligible for appointment as High Court Judges, can be considered for appointment
of Judicial Members.
A lifetime of experience in administration may make a member of the civil services a
good and able administrator, but not a necessarily good, able and impartial adjudicator
with a judicial temperament capable of rendering decisions which have to (i) inform
the parties about the reasons for the decision; (ii) demonstrate fairness and correctness
of the decision and absence of arbitrariness; and (iii) ensure that justice is not only
done, but also seem to be done. [...]
As far as the Technical Members are concerned, the officer should be of at least
Secretary Level officer with known competence and integrity. Reducing the
standards, or qualifications for appointment will result in loss of confidence in the
Tribunals. We hasten to add that our intention is not to say that the persons of Joint
Secretary level are not competent. Even persons of Under Secretary level may be
competent to discharge the functions. There may be brilliant and competent people
even working as Section Officers or Upper Division Clerks but that does not mean
that they can be appointed as Members. Competence is different from experience,
maturity and status required for the post. As, for example, for the post of a Judge of
the High Court, 10 years' practice as an Advocate is prescribed. There may be
Advocates who even with 4 or 5 years' experience, may be more brilliant than
Advocates with 10 years' standing. Still, it is not competence alone but various other
factors which make a person suitable. Therefore, when the legislature substitutes
the Judges of the High Court with Members of the Tribunal, the standards
applicable should be as nearly as equal in the case of High Court Judges. That
means only Secretary Level officers (that is those who were Secretaries or
Additional Secretaries) with specialized knowledge and skills can be appointed
as Technical Members of the Tribunal.
[He went on to hold:]
Parts IC and ID of the Companies Act proposes to shift the company matters from the
courts to Tribunals, where a `Judicial Member' and a `Technical Member' will decide
the disputes. If the members are selected as contemplated in section 10FD, there is
every likelihood of most of the members, including the so called `Judicial Members'
not having any judicial experience or company law experience and such members
being required to deal with and decide complex issues of fact and law. Whether the
Tribunals should have only judicial members or a combination of judicial and
technical members is for the Legislature to decide. But if there should be
technical members, they should be persons with expertise in company law or
allied subjects and mere experience in civil service cannot be treated as
Technical Expertise in company law. [...]
[He went on to provide certain remedial measures, which would restore the
Constitutionality of the impugned provisions. But, on the constitutional challenge to
the setting up of such Tribunals, he found that there is nothing unconstitutional about
it].
Comment: The key contribution of this case to the existing realm of jurisprudence is
the fact that it appreciates the fact that Tribunals have become firmly entrenched in
our adjudicatory paradigm, and therefore, subject to the fact that there is no dilution
by unwarranted inclusion of undeserving members, they can be very useful
mechanisms of dispute resolution. Another notable contribution of this case is the
interesting take on the Basic Structure Test being made applicable on ordinary laws. It
is submitted that this interpretation is definitely going to have far-reaching
implications in the way the Basic Structure Doctrine is looked at today.
On the Original Jurisdiction of the Supreme Court
Case: State of Rajasthan v. Union of India, 1977 AIR 1361 (Coram: Beg, C.J.,
Chandrachud, Bhagwati, Goswami, Gupta, Untawalia, Fazal Ali, JJ.
In the elections of 1977, the people of India rejected congress rule completely and as a
result, the Janata party won the elections with an overwhelming majority. After the
elections, the then Union Home Minister addressed a letter to the 9 states which were
ruled by the Congress, asking them to advise their governors to dissolve the
assemblies and seek a fresh mandate from the people. Pursuant to this letter, all the 9
states moved to the Supreme Court and prayed for a declaration that the letter of the
home minister was illegal and ultra vires the constitution. The Respondent, the Union
of India, brought forth many arguments one of which was against the maintainability
of the suit as under Article 131 of the Constitution. They argued that Article 131 is
meant for dealing of grievances of States against the Central Government and not
those relating to mere composition of State Governments and legislature without
involving constitutional or other legal rights of States as such. They tried to create a
distinction between a State and a State Government and specified Article 131 as a
provision which is meant for disputes in which the State should ought to be interested
and not merely the Government of the State, which may come and go. According to
them, if the Central Government infringes upon any constitutional right of a state then
the State Government can take it up on behalf of the state under Article 131, but since
there is no right given to any state by the constitution that its Government or
legislative assembly would continue undissolved for any period, it is not maintainable
under Article 131.
Although the Supreme Court dismissed the suit on other grounds, this argument
concerning the original jurisdiction of the Supreme Court remained a grey area, as
Beg, C.J., did not indulge in the issue, Chandrachud, Bhagwati and Gupta, JJ. rejected
the argument whereas Untwalia, Goswami and Fazal Ali JJ. accepted the argument.
Although this case is a highly important one in other contexts (like Article 356, where
for the first time, the Court conceded to the fact that there could be a minimal judicial
review of an Article 356 imposition), we will confine our discussion only to the points
pertaining to the Original Jurisdiction of the Supreme Court, as envisaged in Article
131.
Per Beg, C.J.:
[The Learned Chief Chief Justice did not discuss on the issue of Article 131 in his
judgement. He stated:]
I do not think that we need take a too restrictive or a hyper-techincal view of the
State's rights to sue for any rights, actual or fancied which the State Government
chooses to take up on behalf of the State concerned in a suit under Art. 131.
Per Chandrachud, J.:

The preliminary objection is based on an unpragmatic view of the functioning of the-
Constitution and has therefore to be rejected. [Failing to observe any perceptible
difference between the words “State” and “State Government” in the General Clauses
Act, he observes:] The absence of the expression "State Government" and the use in
its place of the expression "State" in art. 131, is said to furnish intrinsic evidence that
for a suit to fall under that Article, the dispute must arise between the Government of
India and a State, not between the Government of India and the Government of a
State. The intrinsic evidence, it is argued, assumes greater credibility in the context
that the article does employ the expression "Government of India" when what was
meant was the government, as contradistinguisbed from the State. The presence of the
particular expressions in art. 131 does not, in my opinion, support the inference,
suggested on behalf of the Union of India. The use of the phrase "Government of
India" in art. 131 (a) and (b) does not mean that one party to the dispute has to, be the
Government of the day at the Centre. "Government of India" means "Union of India"
because if there be merit in the logic that art. 131 does not comprehend disputes in
which the Government of a. State as contrasted with the State itself is interested, it
must follow that correspondingly, the "Government of India" too cannot mean the
Government for the time being in power at the centre. The true construction of art.
131(a), true in substance and true pragmatically, is that dispute must arise between the
Union of India and a State. [...]
The dispute between the Union of India and a State cannot but be a dispute
which arises out of the differences between the Government in office at the
Centre and the Government in office in the State. [...] Mere wrangles between
governments have no place in the scheme of that article. They have to be resolved
elsewhere and by means less solemn and sacrosanct than a court proceeding. The
purpose of art. 131 is to afford a forum for the resolution of disputes which depend for
their decision on the existence or extent of a legal right. It is only when a legal, not a
mere political, issue arises touching upon the existence or extent of a legal right
that art. 131 is attracted.
[He went into locate such question of legal right in the instant case, when he
observes:]
I find it difficult to accept that the State as a polity is not entitled to raise a dispute of
this nature. In a federation, whether classical or quasi-classical, the States are vitally
interested in the definition of the powers of the Federal Government on one hand and
their own on the other. A dispute bearing upon the delineation of those powers is
precisely the one in which the federating States, no less than the Federal Government
itself, are interested. The States, therefore, have the locus and the interest to contest
and seek an adjudication of the claim set up by the Union Government. The bond of
constitutional obligation between the Government of India and the States sustains that
locus.
Per Bhagwati, J. (for himself and Gupta, J.):
It is true that there is a distinction between 'State' and 'State Government' and this
distinction is also evident from the language of' Article 131 and, therefore, what has
to be seen for the purpose of determining the applicability of that Article is whether
any legal right of the State, as distinct from the State Government, is infringed. Now,
undoubtedly, a State has no legal right to insist that it shall have a particular Council
of Ministers or particular persons as members of the Legislative Assembly. But a
State has certainly a right under the Constitution to say that its executive and
legislative powers shall be exercisable in the manner provided in the Constitution. If a
legal right of a State can be said to have been infringed when its Legislative Assembly
is abolished, it is difficult to see how any other conclusion can follow when the
Legislative Assembly is not abolished but suspended or dissolved. In the former case,
the State is unconstitutionally deprived of its legislative organ and its legislative
power is given over to another authority: in the latter, the constitutionally appointed
organ remains but it is made ineffectual for a period during which the legislative
power is unconstitutionally vested in another authority. We fail to see any difference
in the two situations so far as the State is concerned. The position is the same whether
the constitutionally appointed organ for exercise of legislative power is amputated or
paralysed. If one affects the legal right of the State, equally the other does. It may be
that if a Legislative Assembly is suspended or dissolved and the legislative power of
the State becomes exercisable by or under the authority of Parliament by reason of
Presidential action under Article 356, clause (1), the individual rights of the members
of the Legislative Assembly may be affected, but that does not mean that the legal
right of the State would also not thereby be infringed. Unconstitutional exercise of
power by the President under Article 356, clause (1) may injuriously affect rights of
several persons. It may infringe not only the individual rights of the members of the
Legislative Assembly, but also the constitutional right of the State to insist that the
federal basis of the political structure set up by the constitution shall not be violated
by an unconstitutional assault under Article 356, clause (1), we are, therefore, of the
view that the present suits seek to enforce a legal right of the States arising under the
Constitution and the suits cannot be thrown out in limine as being outside the scope
and ambit of Article 131. We must proceed, to consider the suits on merits.
Per Goswami, J. (Dissenting):
Although the expression used in Article 131 is “any dispute”, the width of the
expression is limited by the words that follow in respect of the nature of dispute that
can be entertained by this Court in its original jurisdiction. It is only a dispute which
involves any question of law or fact on which the, existence or extent of a legal right
of the contending party depends that can be the subject matter of a suit under Article
131. The dispute should be in respect of legal rights and not disputes of political
character. The Article, thus, refers to the parties that may be arrayed in the litigation
as well as to the subject matter of the dispute. [...]
In a parliamentary form of Government when one Government is replaced by another,

the State's continuity is not snapped. There may come a moment in the life of a
Government when it may cease to be truly representative of the people and, therefore,
the. interest of the State as a polity or legal entity and that of the Government
established on party system may cease to be identical. In such a situation, factual or
imminent, a suit by a State Government in the name of the State against the Union
Government's action in defence, of the former's legitimate existence and right of
continuance will not relate to the legal right of the State. The judgment, whether in
truth and reality a particular situation exists or is portentously imminent, may be
correct or incorrect, but it is a political issue. The Court's jurisdiction is not
political but entirely judicial. The right of a particular State to sue is not always
equivalent to the right of the Council of Ministers in all matters. Even if a
Government goes the State lives. Whether a particular Council of Ministers can
survive threats to their existence depends no doubt immediately on its ability to enjoy
the confidence of the majority in the Legislature, but also, in the last resort, in its
ability to enjoy the confidence of the political sovereign, the electorate. The
questions affecting the latter domain are of highly political complexion and
appertain to political rights of the Government and not to legal rights of the
State. The rights agitated by the plaintiffs are principally of the Governments
concerned who are interested in continuing the legislatures whose confidence they
enjoy. On the other hand, it is claimed by the Home Minister in his letter that these
Legislatures have lost the mandate of the people and that there is clear evidence ,of
their having lost the confidence of the people as a result of the verdict in the recent
general election to the Parliament. The Court is not concerned whether this is a
correct assessment or not. The Union Government is entitled to take political
decisions. However, even if a political decision of the Government of India affects
legal rights of the State as a legal entity, the existence and extent of that right will be
triable under Article 131. The question is, are legal rights of the State involved in the
dispute? Article 131 speaks of a legal right. That legal right must he that of the State.
The dispute about a legal right, its existence or extent, must be capable of agitation
between the Government of India and the States. The character of the dispute within
the scope of Article 131 that emerges is with regard to, a legal right which the States
may be able to claim against the Government. For example, the State as a party must
affirm a legal right of its own which the Government of India has denied or is
interested in denying giving rise to a cause of action. For the purpose of deciding
whether Article 131 is attracted the subject matter of the dispute, therefore, assumes
great importance.
[He fails to find any such question involving the Legal Right of the State in this case].
Per Untwalia, J. (Dissenting):
[...] Such a dispute, in my opinion, is not a dispute vis-a-vis the legal right of the State
a unit of the Union of India. It falls short of that. What is alleged is that pursuant to
the impugned proclamation the President will assume to himself all or any of the
functions of the Government of the State and all or any of the powers vested in or
exercisable by the Governor including the power to dissolve the Assembly
under Article 174(2) (b). Such a proposed or threatened action does affect the
legal right of the Government in power and the Legislative Assembly a part of
the State Legislature, but not of the State itself. The State undoubtedly is entitled to
have a Governor a Government in one form or the other and the Legislature. No part
of it can be abolished. Abolition would affect the legal right of the State. But it is not
quite correct to say that a State has legal right to have a particular Governor or
a particular Government or a particular Legislative Assembly. In contrast to the
word "dissolved" used in Article 174 I would point out the provision of "abolition" of
the Legislative Council of a State mentioned in Article 169. Similarly, to illustrate my
view point, I may refer to Article 153 which provides "there shall be a Governor for
each State", and Article 156 which provides for a particular Governor holding office
during the pleasure of the President. If a dispute arises in relation to an action or threat
of the Government of India under Article 153 it will affect the legal right of the State
as the State cannot exist without a Governor. But if the dispute concerns merely the
removal of a particular Governor by the President, it only affects the legal right of the
person holding the office or the Government of the State but not of the State itself.
That the distinction, though subtle, is significant and appreciable, is clear from the
language of the various clauses of Article 131 itself as also from the definitions of
State Governments given in section 3 (58) and 3 (60) of the General Clauses Act. In
my considered judgment, therefore, the suits as instituted under Article 131 are not
maintainable.
Per Fazal Ali, J. (Dissenting):
[...] [T]he import & purport of Art. 131 is to decide disputes between one State and
another or between the Government of India and one or more States. The founding
fathers of the Constitution have used the word "State" in Art. 131 both deliberately
and advisedly so as to contemplate the State as a constituent unit of the Union along
with its territory and permanent institutions. The question as to the personnel who run
these institutions is wholly unrelatable to the existence of a dispute between a State
and the Government of India. It is only when there is a complete abolition of any of
the permanent institutions of a State that a real dispute may arise. A mere temporary
dissolution of an Assembly under Art. 356 does not amount to an abolition of a State
Assembly, because after such dissolution under the provisions of the Constitution
elections are bound to follow and a new Legislature would evidently come into
existence after the voters have elected the candidates. Unfortunately, there is no clear
decision of this Court directly on this point, but on a true and proper construction
of Art. 131, I am of the view that a dispute like the present is totally outside the scope
of Art. 131 of the Constitution. For these reasons, therefore. I hold that the State
Governments who have raised the dispute in this case are not covered by the word
"State" appearing in Art. 131 and therefore the suits are not maintainable on this
ground also.
Comment: It can be seen from this judgement that even though the majority agreed to
assume jurisdiction under Article 131, there was some significant discordance
between the Learned Judges with respect to the question as to whether “State” and
“State Government” are synonymous, based on Article 131. If one simply looks at the
decision of Bhawati, J. (rendered on behalf of himself and Gupta, J.), the difference in
approach with Chandrachud, J. on this point will be abundantly evident. It was only
later in the State of Karnataka case that there came some clarity on this aspect.
On ‘State’ and ‘State Government’ in Article 131
Case: State of Karnataka v. Union of India, 1978 AIR 68 (Coram: Beg, C.J.,
Chandrachud, Bhagawati, Untwalia, Shinghal, Jaswant Singh, Kailasam, JJ.)
A memorandum was submitted by some opposition members of the Karnataka

assembly, which alleged the Chief Minister of corruption, favouritism and nepotism.
Pursuant to this, in order to look into the allegations, the state government appointed a
one-man commission to be presided over by a retired judge of Karnataka High Court.
Few days later, the Central Government too appointed a one-man commission to be
presided by a retired Supreme Court judge to look into the allegations. The State of
Karnataka moved to the Supreme Court under Article 131 contending that, Central
Government has no jurisdiction to constitute a commission for enquiry, as a state
appointed enquiry is already in place, hence constitution of the enquiry by the Central
Government is a destruction of the federal structure. The Central Government raised a
preliminary objection as to the maintainability of the suit because the enquiry was
against persons in their individual capacity hence no legal right of the state has been
infringed. Further two sub-issues were identified under this argument, first regarding
the subject matter and another with respect to the parties involved. Although the suit
was dismissed, this argument against the maintainability and invocation of original
jurisdiction of the Supreme Court under Article 131 of the Constitution was rejected
by the majority consisting of Beg, C.J., Chandrachud, Bhagwati, and Kailasam, JJ. Of
course, there were discordant voices too, with Untwalia, Shinghal and Jaswant Singh,
JJ. dissenting. In this discussion, we will solely focus on the Article 131 issues.
Per Beg, C.J.:
[The Learned Chief Justice referred to his brief observation made in course of
deciding the State of Rajasthan case, and said:]
It may be, explained here that this observation was not meant to lay down more than
that there would be presumed to be a nexus between the interests of the State and
of the people it represents when the Government of the State, takes up an issue
relating to the interpretation of the Constitution against an action taken, or,
even, as was the case there, one contemplated by the Central Government.
[He found such nexus in the instant case. He went on to hold:]
[Article 131] can be invoked, in my opinion, whenever a State and other States or
the Union differ on a question of interpretation of the Constitution so that a
decision of it will affect the scope or exercise of governmental powers which are
attributes of a State. It makes no difference to the maintainability of the action if the
powers of the State, which are Executive, Legislative, and Judicial, are exercised
through particular individuals as they necessarily must be. It is true that a criminal act
committed by a Minister is no part of his official duties. But, if any of the organs of
the State claim exclusive power to take cognizance of it, the State, as such, becomes
interested in the dispute about the legal competence or extent of powers of one of its
organs which may emerge. I do not think that the fact that the State acts through its
Ministers or officials can affect the maintainability of a suit under Article 131 of the
Constitution.
Per Chandrachud, J.:
[The Learned Judge sticks to his own reasonings of the State of Rajasthan case. He
observes:]
The jurisdiction conferred on the Supreme Court by article 131 of the Constitution
should not be tested on the anvil of banal rules which are applied under the Code of
Civil Procedure for determining whether a suit is maintainable. [...] By the very terms
of the article, therefore, the sole condition which is required to be satisfied for
invoking the original jurisdiction of this Court is that the dispute between the parties
referred to in clauses (a) to (c) must involve a question on which the existence or
extent of a legal right depends. The quintessence of article 131 is that there has to
be a dispute between the parties regarding a question on which the existence or
extent of a legal right depends. A challenge by the State Government to the
authority of the Central Government to appoint a Commission of Inquiry clearly
involves a question on which the existence or extent of the legal right of the
Central Government to appoint the Commission of Inquiry depends and that is
enough to sustain the proceeding brought by the State under article 131 of the
Constitution. Far from its being a case of the "omission of the obvious", justifying
the reading of words into article 131 which are not there, I consider that the
Constitution has purposefully conferred on this Court a jurisdiction which is
untrammeled by considerations which fetter the jurisdiction of a court of first
instance, which entertains and tries suits of a civil nature. The very nature of the
disputes arising under article 131 is different, both in form and substance, from the
nature of claims which require adjudication in ordinary suits.
[He goes on to observe:]
The object of article 131 is to provide a high powered machinery for ensuring that the
Central Government and the State Governments act within the respective spheres of
their authority and do not trespass upon each other's constitutional functions or
powers. Therefore, a challenge to the constitutional capacity of the 'defendant' to act
in an intended manner is enough to attract the application of article 131, particularly
when the 'plaintiff' claims that right exclusively for itself. If it fails to establish that
right, its challenge may fail on merits but the proceeding cannot be thrown out on the
ground that the impugned order is not calculated to affect or impair a legal right of the
plaintiff.
Per Bhagwati, J.:
[...] [T]here are two limitations in regard to the dispute which can be brought before
the Supreme Court under Article 131. One is in regard to parties and the other is in
regard to the subject-matter. The article provides in so many terms that the dispute
must be between the Government of India and one or more States or between two or
more States. The object of the article seems to be that since in a federal or quaasi-
federal structure, which the Constitution seeks to set up, disputes may arise between
the Government of India; and one or more States, or between two or more States, a
forum should be provided for the resolution of such disputes and that forum should be
the highest Court in the land, so that final adjudication of such disputes could be
achieved speedily and expeditiously without either party having to embark on a long,
tortuous and time consuming journey through a hierarchy of Courts. The article is a
necessary concomitant of a federal or a quasi-federal form of Government and it
is attracted only when the parties to the dispute are the Government of India or
one or more States arrayed on either side. This is the limitation as to parties. The
other limitation as to subject-matter flows from the words "if and in so far as the
dispute involves any question (whether of law or fact) on which the existence or
extent of a legal right depends". These words clearly indicate that the dispute on
affecting the existence or extent of a legal right and not a dispute on the political
plane not involving a legal aspect.
[On the issue involving the difference between the ‘State’ and the ‘State
Government’, he opined:]
It would [...] be seen that the State Government is the agent through which the State
exercises its executive power. Now, if the State Government is the agent through
which the State expresses its will, it is difficult to see how the State can be said to be
unconcerned when any right or capacity or lack of it is attributed to the State
Government. It would be wholly unrealistic to suggest that since the State
Government is distinct from the State, any action or capacity or lack of it in the
State Government would not affect the State and the State would not be
interested in it. This is to ignore the integral relationship between the 'State' and
the 'State Government'. Any action which affects the State Government or the
ministers in their capacity as ministers - for in that capacity they would be acting on
behalf of the State - would raise a matter in which the State would be concerned. [...]
I would, therefore, hold that when any right or capacity or lack of it is attributed
to any institution or person acting on behalf of the State, it raises a matter in
which the State is involved or concerned. The State would, in the circumstances, be
affected or at any rate interested, if the Chief Minister and other ministers in their
capacity as such, or to put it differently, in the matter of discharge of their official
functions, are subjected to unconstitutional exercise of power by the Central
Government. If the Central Government were to issue a direction to the Chief
Minister and other ministers to exercise the executive power of the State in a
particular manner, the State would be clearly affected if such direction is
unconstitutional and would be entitled to complain against it. Then is the position any
different, if the Central Government, instead, proceeds, without any constitutional
authority, to inquire how the executive power of the State is exercised by the Chief
Minister and other ministers and whether it is exercised in a proper manner? The State
would clearly in such a case have locus to challenge the unconstitutional action of the
Central Government.
[On the question as to whether it is essential that a legal right of the state has to be
adversely impacted before such invocation of Article 131, he holds:]
[...] [O]n a proper construction of Article 131, it is not necessary that the plaintiff
should have some legal right of its own to enforce, before it can institute a suit under
that article. It is not a sine qua non of the applicability of article 131 that there should
be infringement of some legal right of the plaintiff. What article 131 requires is that
the dispute must be one which involves a question "on which the existence or
extent of legal right depends". The article does not say that the legal right must
be of the plaintiff. It may be of the plaintiff or of the defendant. What is necessary
is that the existence or extent of the legal right must be in issue in the dispute between
the parties. We cannot construe Article 131 as confined to cases where the dispute
relates to the existence or extent of the legal right of the plaintiff for to do so, would
be to read words in the article which are not there. [...]
Per Kailasam, J.:
According to the impugned notification Commission of Inquiry is appointed for the

purpose of making an inquiry into a definite matter of public importance, namely
charges of corruption, nepotism, favouritism or misuse of governmental power against
the Chief Minister and certain other Ministers of the State of Karnataka. The inquiry
therefore is amongst other things regarding the misuse of the governmental power
against the Chief Minister and other Ministers of the State. The executive function of
the State which is vested in the Governor is exercised by him with the aid and advice
of the Chief Minister and the Council of Ministers. The power is also exercised by the
Governor either directly or indirectly through officers subordinate to him in
accordance with the Constitution. The governmental functions of the State are
performed by the Governor as required by the Constitution with the aid and advice of
the Ministers The scope of the enquiry would inevitably involve the functioning of the
executive of the State. The plea of the State Government is that its powers are derived
from the Constitution and its existence and its exercise of powers as executive of the
State is guaranteed by the Constitution, and the Centre cannot interfere with such
exercise of executive functions. The question involves the extent of the executive
power of the State and any interference with that power by the Central Government
would affect the legal right of the State.
[The Learned Judge accepted this contention of the State, and held that no matter
whether or not ‘State’ includes ‘State Government’, this case necessarily involves
questions pertaining to the existence or extent of the legal rights of the state, as
necessitated by Article 131].
Per Untwalia, J. (Dissenting with the majority on this issue, for himself, Shinghal and
Jaswant Singh, JJ.):
The concept of State is that by itself it is an ideal person, a legal entity. It is
intangible, invisible and immutable. The Government, in a sense, is an agency
through which the will of the State is formulated, expressed and executed. Both the
expressions have been separately defined in the General Clauses Act, 1917. In
relation to the existence of a dispute between the Union of India on the one hand
and one or more States on the other, the expression used in Article 131 for the
former is the Government of India, signifying that the dispute may be with the
Government of India but the other party to the dispute must be the State only
and not any limb of the State - the Government, the Legislature or the
Judiciary. [...]
In the present case the inquiry set- up by the Central Government is not against the
State or the State Government. It is against the Chief Minister and some other
Ministers. who are officers of the State. It may be open to them to, take the plea in an
appropriate proceeding, such as a writ petition under Article 226 of the Constitution,
that the action of the Central Government is legal and ultra vires. [...]There may be a
competition between the power of one authority and the other, here in this case
between the Central Government and the State Government. But unless the power
exercised by one authority brings about a dispute impinging upon the legal right of the
other authority, the latter cannot come under Article 131 and say that merely because
it was within its power to do so its legal right is affected by the illegal exercise of the
power by the other authority. The said exercise of the power must directly or by
necessary implication affected the legal right of the other authority. [...]
If a restricted meaning were not to be given to the scope of the suit which can be filed
under Article 131, very anomalous, and sometimes absurd, results may follow and it
will be difficult to put a dividing line and a stop to the very wide scope of the suit
resulting from such an interpretation. Any action taken by the Central Government,
either under the Act or otherwise, against any citizen residing in, or an officer of the
State could be challenged by institution of a suit under Article 131 by the State on the
ground that the action of the Central Government is ultra vires and without any legal
right. The argument that the State is interested in protecting its people and officers
when their legal right has been illegally invaded by the Central Government and,
therefore, it has a locus to invoke Article 131, in our opinion, is too obviously wrong
to be accepted.
Comment: This case marks a distinct transition in the point of view of Bhagwati, J.,
so far as the inclusion of ‘State Government’ within the term ‘State’ in Article 131 is
concerned. That jurisprudential shift is what sets this case apart from the State of
Rajasthan case, even though on ultimate analysis, the majority in both these cases had
held that the respective suits were maintainable. This case also makes some
interesting observations with respect to the cause of action, and the distinction of this
extraordinary kind of suits from ordinary civil suits.
On Special Leave Petitions
Case: Pritam Singh v. State of Punjab, AIR 1950 SC 169 (Coram: Fazl Ali,
Patanjali Sastri, Mahajan, Mukherjea, S.R. Das, JJ.)
This was an appeal by special leave from a judgment and order of the East Punjab
High Court, upholding the conviction of the appellant on a charge of murder and
confirming a sentence of death passed on him by the Sessions Judge of Ferozepore. In
this case, the Supreme Court made some significant observations about the nature of
Special Leave Petitions and their admissibility.
Per Fazl Ali, J.:
The points to be noted in regard to this article are firstly, that it is very general and is
not confined merely to criminal cases, as is evident from the words "appeal from any
judgment, decree, sentence or order" which occur therein and which obviously cover
a wide range of matters; secondly, that the words used in this article are "in any cause
or matter," while those used in articles 132 to 134 are "civil, criminal or other
proceeding," and thirdly, that while in articles 132 to 134 reference is made to appeals
from the High Courts, under this article, an appeal will lie from any court or tribunal
in the territory of India. On a careful examination of article 136 along with the
preceding article, it seems clear that the wide discretionary power with which this
Court is invested under it is to be exercised sparingly and in exceptional cases
only, and as far as possible a more or less uniform standard should be adopted in
granting special leave in the wide range of matters which can come up before it
under this article. By virtue of this article, we can grant special leave in civil cases,
in criminal cases, in income-tax cases, in cases which come up before different kinds
of tribunals and in a variety of other cases. The only uniform standard which in our
opinion can be laid down in the circumstances is that Court should grant special
leave to appeal only in those cases where special circumstances are shown to
exist. [...] Generally speaking, this Court will not grant special leave, unless it is
shown that exceptional and special circumstances exist, that substantial and
grave injustice has been done and that the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against.
Comment: This case sets the benchmark to be attained for getting a Special Leave
Petition admitted in the Supreme Court. The judgement makes it very clear that SLP
is a clearly discretionary with the Court, and should be used in exceptionally special
situations only.
On Special Leave Petitions and Tribunals
Case: Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd., AIR 1950 SC
188 (Coram: Kania, C.J., Mukerjea, Mahajan, Patanjali Sastri, Fazl Ali, JJ.)
This case came as an appeal by special leave from the determination of an industrial
dispute by the Industrial Tribunal between Bharat Bank and its employees. On
account of an unfavourable response made by the bank to certain demands of the
employees, the latter struck work. The bank in its turn served notices on them to
resume work and proceeded to discharge a number of them as they failed to do so.
The Central Government constituted a Tribunal consisting of three persons for the
adjudication of industrial disputes in banking companies under section 7 of the
Industrial Disputes Act.
The dispute was heard by the Tribunal at Delhi and its award was made. It was
published in the Government of India Gazette and declared to be binding for a period
of one year. The award of the Tribunal was signed by two out of its three members.
However, Bharat Bank was not satisfied with it, and therefore, it decided to appeal
against the award.
In course of this Special Leave Petition, The Supreme Court made certain important
comments about the scope of Article 136 and jurisdiction of the Supreme Court in
granting special leave under this article.
Per Kania, C.J.:
The [...] question is whether under Art. 136, the Court has jurisdiction to entertain an
application for leave to appeal against the decision of such a body. It is not disputed
that the Court has power to issue writs of certiorari of prohibition in respect of the
work of the Tribunal. The only question is whether there is a right of appeal also. In
my opinion, the wording of Art. 136 is wide enough to give jurisdiction to the
Court to entertain an application for leave to appeal, although it is obvious that
having regard to the nature of the functions of the Tribunal, this Court will be very
reluctant to entertain such an application.
Per Fazl Ali, J.:
The important question to be decided in this case is whether the present appeal lies at
all to this Court. The question is not free from difficulty, but on the whole I am
inclined to think that the appeal does lie. It is fully recognized that the scope of Art.
136 of the Constitution is very wide, but the significance of the language used in the
section can be appreciated only by comparing it with the articles which precede
it. [The Learned Judge compares the wordings of Article 136 with Articles 132, 133
and 134 and points out that it is much wider in amplitude.] It is obvious that these
words greatly widen the scope of Art. 136. They show that an appeal will lie also
from a determination or order of "any tribunal" in any cause or matter.
Can we then say that an industrial tribunal does not fall within the scope of Art.
136? If we go by a mere label, the answer must be in the affirmative. But we have to
look further and see what are the main functions of the tribunal and how it
proceeds to discharge those functions. This is necessary because I take it to be
implied that before an appeal can lie to this court from a tribunal it must perform
some kind of judicial function and partake to some extent of the character of a Court.
Now there can be no doubt that the industrial tribunal has, to use a well-known
expression, "all the trappings of a Court" and performs functions which cannot but be
regarded as judicial. This is evident from the rules by which the proceedings before
the tribunal are regulated. [...]
The matter does not rest there. The main function of this tribunal is to adjudicate on
industrial disputes which implies that there must be two or more parties before it with
conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is
to be ended. Prima facie, therefore, a tribunal like this cannot be excluded from the
scope of Art. 136.
[The Learned Judge then turns towards the respondents’ arguments that the Industrial
Tribunals are not “Courts” contemplated in 136, and that they do not carry out
“judicial” functions, thus implying that their orders are not “judicial” orders. To this,
he observes:]
It is well-known that a writ of certiorari can issue only against an order of a

judicial or quasi-judicial tribunal and if it is permissible for the High Court to
issue a writ of certiorari against an industrial tribunal, [...], I find is difficult to
hold that the tribunal does not come within the purview of Art. 136. If a
subordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it
does not possess, the Appellate Court can always interfere and do what is
contemplated to be done by writ of certiorari.
[Turning to the present case in hand, the Learned Judge finds that the grounds of
appeal mentioned in the case were insufficient to invoke the Special Leave
Jurisdiction of the Supreme Court, in light of the Pritam Singh decision. Therefore, he
dismissed the appeal].
Per Mahajan, J.:
A preliminary objection was raised on behalf of the Central Government as well as on

behalf of the Respondents that this Court had not jurisdiction to grant special leave to
appeal against the determination of an industrial tribunal inasmuch as it did exercise
the judicial powers of the State and that its determination was not in the nature of a
judgment, decree or order of a Court so as to be appealable. This being the first case
in which special leave was granted from the determination of an industrial tribunal, it
is necessary to examine the provisions of the Constitution dealing with this matter and
if possible, to define the limits of the jurisdiction of this Court under Art. 136. [...]
Two points arise for determination in this case, (1) whether the word "Tribunal" in
this article has been used in the same sense as "Court," or whether it has been used in
a wider sense, and (2) whether the word "determination" in the article includes within
its scope the determinations made by industrial tribunals or other similarly constituted
bodies or whether it has reference only to determinations of a Court or a tribunal of a
purely judicial character. [...]
After considerable thought I have reached the conclusion that the preliminary
objection should be overruled. I see no cogent reasons to limit the plain words of the
statute and to place a narrow interpretation on words of widest amplitude used therein.
In construing the articles of the Constitution it has always to be remembered that India
has been constituted into a sovereign democratic republic in order to ensure justice to
all its citizens. In other words, the foundations of this republic have been laid on the
bedrock of justice. To safeguard these foundations so that they may not be
undermined by injustice occurring anywhere, this Court has been constituted. By Art.
32 of the Constitution the Court is empowered to see that the fundamental rights
conferred on the citizens by the Constitution are not in any way affected. By Art.
136 it has been given overriding power to grant special leave to appeal against orders
of Court and tribunals which go against the principles of natural justice and lead to
grave miscarriage of justice. The exercise of these powers could only have been
contemplated in cases which affect the rights of people living within the territory of
India in respect of their person, property or status. The question, therefore, for
consideration is whether the jurisdiction conferred by use of unambiguous
phraseology and by words which have a plain grammatical meaning and are of the
widest amplitude should be limited and restricted. [...] It must be presumed that the
draftsmen of the Constitution knew well the fact that there were a number of tribunals
constituted in this country previous to the coming into force of the Constitution which
were performing certain administrative, quasi-judicial or domestic functions, that
some of them had even the trappings of a Court but in spite of those trappings could
not be given that description. If must also be presumed that the Constitution-makers
were aware of the fact that the highest Courts in this country had held that all tribunals
that discharged judicial functions fell within the definition of the expression "Court."
If by the use of the word "tribunal" in Article 136, the intention was to give it the
same meaning as "Court," then it was redundant and unnecessary to import it in the
article because, by whatever name described, such a tribunal would fall within the
definition of the word "Court." The word "Court" has a well-known meaning in
legislative history and practice. [...]
It seems to me that such tribunals though they are not full-fledged Courts, yet
exercise quasi-judicial functions are within the ambit of the word "tribunal"
in Art. 136 of the Constitution. [...] The intention of the Constitution by the use
of the word "tribunal" in the article seems to have been to include within the
scope of Art. 136 tribunals adorned with similar trappings as a Court but strictly
not coming within that definition.
[Coming to the Industrial Tribunal, the Learned Judge observed:]
It is now convenient to consider whether a tribunal constituted under the Industrial

Disputes Act, 1947, exercises all or any of the functions of a Court of justice and
whether it discharges them according to law or whether it can act as it likes in its
deliberations and is guided by its own notions of right and wrong. [Referring to the
definition of the term “Industrial Dispute” in the Act, he opines:] When the dispute
has to be adjudicated in accordance with the provisions of the Act, it follows that
the tribunal has to adhere to law, though that law may be different from the law
that an ordinary Court of justice administers. It is noteworthy that the tribunal is to
consist of experienced judicial officers and its award is defined as a determination of
the dispute. The expression "adjudication" implies that the tribunal is to act as a Judge
of the dispute; in other words, it sits as a Court of justice and does not occupy the
chair of an administrator. [...]
[After an extensive analysis of the provisions of the Act and the rules made
thereunder, the Learned Judge held:]
[...] In my opinion, therefore, the Industrial Tribunal has all the necessary
attributes of a Court of justice. It has no other function except that of adjudicating
on a dispute. It is no doubt true that by reason of the nature of the dispute that they
have to adjudicate the law gives them wider powers than are possessed by ordinary
Courts of law, but powers of such a nature do not affect the question that they are
exercising judicial power. [...] That circumstance does not make them anything else
but tribunals exercising judicial power of the State, though in a degree different from
the ordinary Courts and to an extent which is also different from that enjoyed by an
ordinary Court of law. They may rightly [be referred to] as quasi-judicial bodies
because they are out of the hierarchy of the ordinary judicial system but that
circumstances cannot affect the question of their being within the ambit of Art. 136.
[He goes on to underline the importance of Article 136, and contextualises it to the
Industrial Tribunal. He observes:]
I do not see any difficulty in this case in testing the propriety of the determination of
the tribunal. This Court is not to substitute its decision for the determination of the
tribunal when granting relief under Art. 136. When it chooses to interfere in the
exercise of these extraordinary powers, it does so because the tribunal has either
exceeded its jurisdiction or has approached the questions referred to it in a manner
which is likely to result in injustice or has adopted a procedure which runs counter to
the well-established rules of natural justice. In other words, if it has denied a hearing
to a party or has refused to record his evidence or has acted in any other manner, in an
arbitrary or despotic fashion - in such circumstances no question arises of this Court
constituting itself into a tribunal and assuming powers of settling a dispute. All that
the Court when it entertains an appeal would do is to quash the award and direct the
tribunal to proceed within the powers conferred on it and to approach the adjudication
of the dispute according to principles of natural justice. This Court under Art.
136 would not constitute itself into a mere Court of error. Extraordinary powers have
to be exercised in rare and exceptional cases and on well-known principles. [...] In the
matter of an industrial dispute where expedition is the crux of the matter, it is
essential that any abuse of powers by such tribunals is corrected as soon as
possible and with expedition.

The article empowers this Court to grant special leave against sentences or orders
made by this Court. In all other articles of the Constitution right of appeal is conferred
against final decisions, but under this article power is given to this Court to
circumvent that procedure if it is considered necessary to do. I am, therefore, of the
opinion that the mere circumstances that a remedy in the nature of a writ of
certiorari is open to the petitioners does not necessarily lead to the conclusion
that the power of this Court under Art. 136 is circumscribed by that
circumstances. Whenever judicial review is permissible in one form or another,
this Court as the highest Court in the land can exercise its special powers and
circumvent ordinary procedure by granting special leave. What it has to
ultimately decide, it can decide earlier.
[The Learned Judge therefore concludes by observing:]
[...] [T]he word "tribunal" in Art. 136 has to be construed liberally and not in
any narrow sense and an industrial tribunal, inasmuch as it discharges functions
of a judicial nature in accordance with law, comes within the ambit of the article
and from its determination an application for special leave is competent.
Per Mukherjea, J. (Dissenting):
There are two questions which require consideration on this preliminary point. The
first is, whether the award or decision of an Industrial Tribunal constituted under
the Industrial Disputes Act is a judicial decision in the proper sense of the expression
or is the pronouncement of an administrative or quasi judicial body which may
exercise some of the functions of a Court of law but is really not so? The other
question turns upon the construction to be put upon Art. 136 of the Constitution
particularly on the meaning to be given to the words "tribunal" and "determination"
occurring therein; and the question is whether the language is wide enough to include
an adjudication or award of an Industrial Tribunal.
[To answer the first question, he extensively analyses the difference between
“judicial” and “administrative” bodies. Viewing this distinction in the perspective of
the Industrial Disputes Act, he observes:]
There are three classes of authorities provided for by the Act who are entrusted with
the powers and duties of investigation and settlement of industrial disputes. First of
all, there are conciliation officer of Boards of Conciliation, whose duties mainly are to
induce parties to come to a fair and amicable settlement amongst themselves.
Secondly, there are Courts of Enquiry and though they are described as Courts, their
duties end with investigation into the matters referred to them and submitting reports
thereupon to the appropriate Government. Lastly, there are Industrial Tribunals,
composed of independent persons who either are or had been Judges of a High Court
or District Judges or are qualified for appointment as High Court Judges. [...]
It will be seen [...] that there is nothing in the Industrial Disputes Act from which it
could be inferred that the Industrial Tribunal really functions as Court exercising
judicial functions. [...]
[Answering the second question, the Learned Judge holds:]
Our view is that ordinarily we should not put any restricted interpretation upon the
plain words of an Article in the Constitution and thereby limit out powers of granting
special leave for appeals, which the Constitution for best of reason did not choose to
fetter or circumscribe in any way. At the same time, we must admit that some sort of
restricted interpretation may be unavoidable in view of the context in which particular
words appear; and certain restrictions may be implicit in the very purpose for
which Article 136 has been framed. Article 136 empowers us in our discretion to hear
appeals from pronouncements of all inferior Courts and tribunals. With regard to law
Courts, no difficulty arises. As regards tribunals which are not Courts in the proper
sense of the expression, it may not be proper, in our opinion, to lay down a hard and
fast rule that no appeals could, on any account, be allowed against determinations of
such tribunals. There are numerous varieties of these adjudicating bodies, whose
structures vary greatly in character and composition and so do the powers and
functions which they exercise. The best thing to do would be to examine each type
of cases as it arises and if we find that with regard to determinations emanating
from certain tribunals it is not possible for us to exercise fully and effectively the
powers of an Appellate Court, such determinations must be held to lie outside
the purview of Article 136 of the Constitution.
[Looking at the nature of the Industrial Tribunal, he opined that it is one such Tribunal
whose determination is outside the purview of Article 136, for the reasons as
aforementioned].
Comment: This case quite succinctly outlines the ambit of Article 136 of the
Constitution, and the nature of “courts”, “tribunals” and “determinations” which can
be challenged by invoking Article 136. In doing so, it also outlines the critical
utilitarian distinction between the invocation of the writ of certiorari after a final
order, and filing a Special Leave Petition at any intermediate stage.
On Curative Petitions
Case: Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771 (Coram:
Bharucha, C.J., Quadri, Banerjee, Variava, Patil, JJ.)
A writ petition under Article 32 had been filed before the three Judge Bench and
dismissed since the Court in an earlier judgment had held that a final Supreme Court
judgment cannot be assailed via writ petitions under Article 32. However, more
related writ petitions were again filed before the same three judge Bench. This
prompted the three judge Bench to refer these writ petitions to a Constitutional Bench
seeking its opinion as to whether an aggrieved person is entitled to any relief against a
final judgment/order of the Supreme Court, after dismissal of a review petition, either
under Article 32 of the Constitution or otherwise.
Per Quadri, J.:
Having carefully examined the historical background and the very nature of writ
jurisdiction, which is a supervisory jurisdiction over inferior Courts/Tribunals, in our
view, on principle a writ of certiorari cannot be issued to co-ordinate courts and a
fortiori to superior courts. Thus, it follows that a High Court cannot issue a writ to
another High Court; nor can one Bench of a High Court issue a writ to a
different Bench of the same High Court; much less can writ jurisdiction of a
High Court be invoked to seek issuance of a writ of certiorari to the Supreme
Court. Though, the judgments/orders of High Courts are liable to be corrected by the
Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as
under Article 136 of the Constitution, the High Courts are not constituted as inferior
courts in our constitutional scheme. Therefore, the Supreme Court would not issue a
writ under Article 32 to a High Court. Further, neither a smaller Bench not a larger
Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to
any other Bench of the Supreme Court. It is pointed out above that Article 32 can be
invoked only for the purpose of enforcing the fundamental rights conferred in Part III
and it is a settled position in law that no judicial order passed by any superior court in
judicial proceedings can be said to violate any of the fundamental rights enshrined in
Part III. It may further be noted that the superior courts of justice do not also fall
within the ambit of State or other authorities under Article 12 of the Constitution.
[He observed that the fact that a Writ Petition under Article 32 was not maintainable
in the present case was conceded by all the parties to the dispute. But, he also
observed “an unusual unanimous approach to plead that even after exhausting the
remedy of review under Article 137 of the Constitution, an aggrieved person might be
provided with an opportunity under inherent powers of this Court to seek relief in
cases of gross abuse of the process of the Court or gross miscarriage of justice
because against the order of this Court the affected party cannot have recourse to any
other forum.” Therefore, he held:]
The concern of this Court for rendering justice in a cause is not less important
than the principle of finality of its judgment. We are faced with competing
principles - ensuring certainty and finality of a judgment of the Court of last resort
and dispensing justice on reconsideration of a judgment on the ground that it is
vitiated being in violation of the principle of natural justice or apprehension of bias
due to a Judge who participated in decision making process not disclosing his links
with a party to the case, or abuse of the process of the court. Such a judgment, far
from ensuring finality, will always remain under the cloud of uncertainty. Almighty
alone is the dispenser of absolute justice - a concept which is not disputed but by a
few. We are of the view that though Judges of the highest Court do their best, subject
of course to the limitation of human fallibility, yet situations may arise, in the rarest of
the rare cases, which would require reconsideration of a final judgment to set right
miscarriage of justice complained of. In such case it would not only be proper but also
obligatory both legally and morally to rectify the error. After giving our anxious
consideration to the question we are persuaded to hold that the duty to do justice in
these rarest of rare cases shall have to prevail over the policy of certainty of judgment
as though it is essentially in public interest that a final judgment of the final court in
the country should not be open to challenge yet there may be circumstances, as
mentioned above, wherein declining to reconsider the judgment would be oppressive
to judicial conscience and cause perpetuation of irremediable injustice. [...]
[He traced such power of rendering justice by re-looking into a previously decided
case in Articles 129 and 142 of the Constitution. He observed:]
The upshot of the discussion in our view is that this Court, to prevent abuse of its
process and to cure a gross miscarriage of justice, may re-consider its judgments
in exercise of its inherent power.
The next step is to specify the requirements to entertain such a curative petition under
the inherent power of this Court so that floodgates are not opened for filing a second
review petition as a matter of course in the guise of a curative petition under inherent
power. It is common ground that except when very strong reasons exist, the Court
should not entertain an application seeking reconsideration of an order of this
Court which has become final on dismissal of a review petition. It is neither
advisable nor possible to enumerate all the grounds on which such a petition may be
entertained.
Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he

establishes (1) violation of principles of natural justice in that he was not a party
to the lis but the judgement adversely affected his interests or, if he was a party
to the lis, he was not served with notice of the proceedings and the matter
proceeded as if he had notice and (2) where in the proceedings a learned Judge
failed to disclose his connection with the subject-matter or the parties giving
scope for an apprehension of bias and the judgment adversely affects the
petitioner.
The petitioner, in the curative petition, shall aver specifically that the grounds
mentioned therein had been taken in the review petition and that it was
dismissed by circulation. The curative petition shall contain a certification by a
Senior Advocate with regard to the fulfilment of the above requirements.
We are of the view that since the matter relates to re- examination of a final judgment
of this Court, though on limited ground, the curative petition has to be first
circulated to a Bench of the three senior-most Judges and the Judges who passed
the judgment complained of, if available. It is only when a majority of the
learned Judges on this Bench conclude that the matter needs hearing that it
should be listed before the same Bench (as far as possible) which may pass
appropriate orders. It shall be open to the Bench at any stage of consideration of the
curative petition to ask a senior counsel to assist it as amicus curiae. In the event of
the Bench holding at any stage that the petition is without any merit and vexatious, it
may impose exemplary costs on the petitioner.
Comment: Banerjee, J., in his separate concurring opinion, agreed with the
formulations of Quadri, J., adding that such petitions should be kept as rarities.
Curative Petitions, a wonderful piece of judicial innovation by extension of the power
to do complete justice, have provided for an avenue to set right gross errors, by
following the procedure as has been laid down in this case.
On the Scope and Ambit of the Contempt Power and the Power to Do Complete Justice
Case: Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176
(Coram: K.N. Singh, Kuldip Singh, Kasliwal, JJ.)
A Chief Judicial Magistrate was arrested, handcuffed, tied with rope and taken to the
hospital for medical examination where he was made to sit in an open veranda, by
some police officers on the alleged charge that he had consumed liquor in violation of
the prohibition law that prevailed in Gujarat and that he had assaulted a police officer
in the police station. Several writ petitions under article 32 and contempt petitions
were filed against the wrongful action of the police officers seeking punishment for
the abuse of powers. A petition was also filed by the Chief Judicial Magistrate for
quashing the criminal case initiated against him by the said police officers.
Supreme Court while clarifying the scope of Supreme Court’s power under article 129
as a court of record held that though not expressly mentioned in article 129, the
Supreme Court, being the superior court of record, has inherent power to punish for
the contempt of itself as well as the contempt of its subordinate courts. Further the
Supreme Court quashed the criminal proceeding against the Chief judicial magistrate
by exercising the power to do complete justice enshrined on it by virtue of article 142.
Per K.N. Singh, J.:
[The Learned Judge refers to the two rival contentions put forward by opposing
counsels on the scope and ambit of the Contempt Jurisdiction of the Supreme Court –
whether it can punish for a contempt of an inferior court. He opines:]
The rival contentions raise the basic question whether the Supreme Court has inherent
jurisdiction or power to punish for contempt of subordinate or inferior courts
under Article 129 of the Constitution and whether the inherent jurisdiction and power
of this Court is restricted by the Act. The answer to the first question depends upon
the nature and the scope of the power of this Court as a court of record, in the
background of the original and appellate jurisdiction exercised by this Court under the
various provisions of the Constitution. [...]
Since this Court has power of judicial superintendence and control over all the courts
and Tribunals functioning in the entire territory of the country, it has a corresponding
duty to protect and safeguard the interest of inferior courts to ensure the flow of the
stream of justice in the courts without any interference or attack from any quarter. The
subordinate and inferior courts do not have adequate power under the law to protect
themselves, therefore, it is necessary that this court should protect them. Under the
constitutional scheme this court has a special role, in the administration of
justice and the powers conferred on it under Articles 32, 136, 141 and 142 form
part of basic structure of the Constitution. The amplitude of the power of this
Court under these Articles of the Constitution cannot be curtailed by law made
by Central or State Legislature. If the contention raised on behalf of the contemnors
is accepted, the courts all over India will have no protection from this Court. No doubt
High Courts have power to persist for the contempt of subordinate courts but that does
not affect or abridge the inherent power of this court under Article 129. The Supreme
Court and the High Court both exercise concurrent jurisdiction under the
constitutional scheme in matters relating to fundamental rights under Article 32
and 226 of the Constitution, therefore this Court's jurisdiction and power to take
action for contempt of subordinate courts would not be inconsistent to any
constitutional scheme. There may be occasions then attack on Judges and Magistrate
of subordinate courts may have wide repercussions throughout the country, in that
situation it may not be possible for a High Court to contain the same, as a result of
which the administration of justice in the country may be paralysed, in that situation
the Apex Court must intervene to ensure smooth functioning of courts. The Apex
Court is duty bound to take effective steps within the constitutional provisions to
ensure a free and fair administration of justice throughout the country, for that
purpose it must wield the requisite power to take action for contempt of subordinate
courts. Ordinarily, the High Court would protect the subordinate court from any
onslaught on their independence, but in exceptional cases, extraordinary situation may
prevail affecting the administration of public justice or where the entire judiciary is
affected, this Court may directly take cognizance of contempt of subordinate courts.
We would like to strike a note of caution that this Court will sparingly exercise
its inherent power in taking cognizance of the contempt of subordinate courts, as
ordinarily matters relating to contempt of subordinate courts must be dealt with
by the High Courts. The instant case is of exceptional nature, as the incident created
a situation where functioning of the subordinate courts all over the country was
adversely affected, and the administration of justice was paralysed, therefore, this
Court took cognizance of the matter.
[On the purport of Article 142 being used to quash the criminal complaint, the
Learned Judge observes:]
Article 142(1) of the Constitution provides that Supreme Court in exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any 'cause' or 'matter' pending before it. The expression 'cause'
or 'matter' would include any proceeding pending in court and it would cover
almost every kind of proceeding in court including civil or criminal. The inher-
ent power of this Court under Article 142 coupled with the plenary and
residuary powers under Article 32 and 136 embraces power to quash criminal
proceedings pending before any court to do complete justice in the matter before
this Court. If the court is satisfied that the proceeding in a criminal case are being
utilised for oblique purposes or if the same are continued on manufactured and false
evidence or if no case is made out on the admitted facts, it would be in the ends of
justice to set aside or quash the criminal proceedings. It is idle to suggest that in such
a situation this Court should be a helpless spectator.
[He goes on to add:]
This Court's power under Article 142(1) to do "complete justice" is entirely of

different level and of a different quality. Any prohibition or restriction contained in
ordinary laws cannot act as a limitation on the constitutional power of this Court.
Once this Court has seisin of a cause or matter before it, it has power to issue any
order or direction to do "complete justice" in the matter. This constitutional power
of the Apex Court cannot be limited or restricted by provisions contained in
statutory law. [...]
No enactment made by Central or State Legislature can limit or restrict the

power of this Court under Article 142 of the Constitution, though while
exercising power under Article 142 of the Constitution, the Court must take into
consideration the statutory provisions regulating the matter in dispute. What
would be the need of "complete justice" in a cause or matter would depend upon the
facts and circumstances of each case and while exercising that power the Court would
take into consideration the express provisions of a substantive statute. Once this Court
has taken seisin of a case, cause or matter, it has power to pass any order or issue
direction as may be necessary to do complete justice in the matter.
Comment: It is to be noted that in this case, the Learned Judge elevates the “special”
provisions of Article 129 and 142 to Himalayan heights. In fact, he observes that
Article 142 is part of the Basic Structure. Even if one overlooks the jurisprudential
objections such formulation may attract, it can be objectively said that this kind of
unguided usurpation of power by the Judiciary in the name of “complete justice”
could have undesirable implications. The Court clearly prioritises this power over
statutory provisions (even when they are conflicting), and casually cautions future
courts not to lose sight of such statutory provisions when they invoke this supreme
power. This, it is submitted, is a mere lip-service, and is clearly disruptive of the
delicate balance between the organs of governance that the Constitution so
strenuously seeks to uphold and preserve.
On Statutory Provisions and the Power to Do Complete Justice
Case: Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895
(Coram: Agrawal, G.N. Ray, Anand, Bharucha, Rajendra Babu, JJ.)
A division bench of the Supreme Court found, an advocate, guilty of committing

criminal contempt of the court for having interfered with and “obstructing the course
of justice by trying to threaten, overawe and overbear the court by using insulting,
disrespectful and threatening language”. The court by exercising its powers under
article 129 and 142 awarded the advocate a suspended sentence of imprisonment
together with suspension of his practice as an advocate. This was challenged by the
Supreme Court Bar association by filing a writ under article 32, contending that the
disciplinary committees of the Bar council set up under the advocates act, 1961, alone
have the exclusive jurisdiction ‘to inquire into or suspend or debar an advocate from
practicing law for professional or other misconduct’ and Supreme Court or any other
High Court has no power to cancel the license of an advocate while exercising its
inherent powers under articles 129 and 142.
The division bench transferred the matter to the constitutional bench to determine the
sole issue that whether the punishment for established contempt of court committed
by an Advocate can include punishment to debar the concerned advocate from
practice by suspending his licence for a specified period, in exercise of its powers
under Article 129 read with Article 142 of the Constitution of India despite there
being a specific statute, i.e. the Advocates Act exhaustively governing the issue.
The constitution bench while overruling the decision of single judge by virtue of
which the license of the advocate was cancelled, specified the scope of its power
under article 129 to punish for its contempt and under article 142 to do complete
justice.
Per Anand, J.:
[The learned Judge refers to the express wordings of Article 129 and 142, and
observes:]
It is, thus, seen that the power of this court in respect of investigation or
punishment of any contempt including contempt of itself, is expressly made
'subject to the provisions of any law made in this behalf by the parliament' by
Article 142(2). However, the power to punish for contempt being inherent in a
court of record, it follows that no act of parliament can take away that inherent
jurisdiction of the Court of Record to punish for contempt and the Parliament's
power of legislation on the subject cannot, therefore, be so exercised as to stultify the
status and dignity of the Supreme Court and/or the High Courts, though such a
legislation may serve as a guide for the determination of the nature of punishment
which this court may impose in the case of established contempt. [...] [T]his Court
therefore exercises the power to investigate and punish for contempt of itself by virtue
of the powers vested in it under Articles 129 and 142(2) of the Constitution of India.
[The Learned Judge goes on to critically analyse the provisions of the Contempt of
Courts Act, 1971, and hold:]
[...] [T]he nature of punishment prescribed, under the Contempt of Courts Act, 1971,
may act as a guide for the Supreme Court but the extent of punishment as prescribed
under that Act can apply only to the High Courts, because the 1971 Act ipso facto
does not deal with the contempt jurisdiction of the Supreme Court, except that Section
15 of the Act prescribes procedural mode for taking cognizance of criminal contempt
by the supreme Court also. Section 15, however, is not a substantive provision
conferring contempt jurisdiction. [...] We are, therefore, doubtful of the validity of the
argument of the learned solicitor General that the extent of punishment which the
Supreme Court can impose in exercise of its inherent powers to punish for contempt
of itself and/or of subordinate courts can also be only to the extent prescribed under
the Contempt of Courts Act, 1971. [...]
[However, the Learned Judge categorically holds that the power to punish for
“professional misconduct” of an Advocate is definitely not covered within the ambits
of Articles 129 or 142, and that it is expressly covered by the Advocates Act, 1961.
He observes:]
When this Court is seized of a matter of contempt of court by an advocate, there is no

"case, cause or matter" before the Supreme Court regarding his "professional
misconduct" even though, in a given a case, the contempt committed by an advocate
may also amount to an abuse of the privilege granted to an advocate by virtue of the
licence to practice law but no issue relating to his suspension from practice is the
subject matter of the case. The powers of this Court, under Article 129 read
with Article 142 of the Constitution, being supplementary powers have "to be
used in exercise of its jurisdiction" in the case under consideration by this Court.
Moreover, a case of contempt of court is not stricto senso a cause or a matter between
the parties inter se. It is a matter between the court and the contemnor. It is not,
strictly speaking, tried as an adversarial litigation. The party which brings the
contumacious conduct of the contemnor to the notice of the court, whether a private
person or the subordinate court, is only an informant and does not have the status of a
litigant in the contempt of Court case.
[He categorically asserts:]
The power of the Supreme Court to punish for contempt of court, though quite
wide, is yet limited and cannot be expanded to include the power to determine
whether an advocate is also guilty of "Professional misconduct" in a summary
manner, giving a go bye to the procedure prescribed under the Advocates Act.
The power to do complete justice under Article 142 is in a way, corrective power,
which gives preference to equity over law but it cannot be used to deprive a
professional lawyer of the due process contained in the Advocates Act 1961 by
suspending his licence to practice in a summary manner, while dealing with a
case of contempt of court.
[The Learned Judge goes on to elucidate on the scope and object of Article 142. He
observes:]
The plenary powers of this court under Article 142 of the Constitution are
inherent in the court and are complementary to those powers which are
specifically conferred on the court by various statutes though are not limited by
those statutes. These powers also exist independent of the statutes with a view to
do complete justice between the parties. These powers are of very wide amplitude
and are in the nature of supplementary powers. This power exists as a separate and
independent basis of jurisdiction, apart from the statutes. It stands upon the
foundation, and the basis for its exercise may be put on a different and perhaps even
wider footing, to prevent injustice in the process of litigation and to do complete
justice between the parties. This plenary jurisdiction is, thus, the residual source of
power which this Court may draw upon as necessary whenever it is just and equitable
to do so and in particular to ensure the observance of the due process of law, to do
complete justice between the parties. There is no doubt that it is an indispensable
adjunct to all other powers and is free from the restraint of jurisdiction and operates as
a valuable weapon in the hands of the court to prevent "clogging or obstruction of the
stream of justice". It, however, needs to be remembered that the powers conferred
on the court by Article 142 being curative in nature cannot be construed as
powers which authorise the court to ignore the substantive rights of a litigant
while dealing with a cause pending before it. This power cannot be used to
"supplant" substantive law applicable to the case or cause under consideration
of the court. Article 142, even with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by ignoring express statutory
provisions dealing with a subject and thereby to achieve something indirectly which
cannot be achieved directly. Punishing a contemnor advocate, while dealing with a
contempt of court case by suspending his licence to practice, a power otherwise
statutorily available only to the Bar Council of India, on the ground that the
contemnor is also an advocate, is, therefore, not permissible in exercise of the
jurisdiction under Article 142. The construction of Article 142 must be functionally
informed by the salutary purpose of the Article viz. to do complete justice between
the parties. It cannot be otherwise. [...]
The Supreme Court in exercise of its jurisdiction under Article 142 has the power to
make such order as is necessary for doing complete justice "between the parties in any
cause or matter pending before it." The very nature of the power must lead the
court to set limits for itself within which to exercise those powers and ordinarily
it cannot disregard a statutory provision covering a subject, except perhaps to
balance the equities between the conflicting claims of the litgating parties by
"ironing out the creases" in a cause or matter before it. Indeed this Court is not a
court of restricted jurisdiction of only dispute settling. it is well recognised and
established that this court has always been a law maker and its role travels beyond
merely dispute settling. It is a "problem solver in the nebulous areas". But the
substantive statutory provisions dealing with the subject matter of a given case,
cannot be altogether ignored by this court, while making an order under Article
142. Indeed, these constitutional powers cannot, in any way, be controlled by any
statutory provisions but at the same time these powers are not meant to be exercised
when their exercise may come directly in conflict with what has been expressly
provided for in statute dealing expressly with the subject.
[To conclude, the Learned Judge quite pertinently sounds a note of caution for the
Judiciary against an unfettered use of the power to do complete justice. He observes:]
It must be remembered that wider the amplitude of its power under Article 142,
the greater is the need of care for this Court to see that the power is used with
restraint without pushing back the limits of the constitution so as to function
within the bounds of its own jurisdiction. To the extent, this Court makes the
statutory authorities and other organs of the State perform their duties in accordance
with law, its role is unexceptionable but it is not permissible or the Court to "take
over" the role of the statutory bodies or other organs of the State and "perform"
their functions.
Comment: This case specifies the scope of its power under article 129 to punish for
its contempt and under article 142 to do complete justice. The Court holds that though
the powers under article 129 and 142 are plenary, these powers cannot be used to
confer or build such a jurisdiction which never exists. The observations about the
nature and scope of Article 142 that the Court makes in this case goes a long way in
determining the question as to what happens when the Court seeks to use its powers
under Article 142 in complete defiance of a statutory provisions. The tone of this
judgement, it is submitted, is much more pragmatic and balanced, than the expansive
approach in the Delhi Judicial Service case which we had discussed before, in the
sense that unlike that case, in this case Anand, J., calls for a degree of harmonisation
and complementariness between the statutory provisions and Article 142.
On the Advisory Jurisdiction of the Supreme Court
Case: In Re The Kerala Education Bill, 1957, AIR 1958 SC956 (Coram: S.R.
Das, C.J., Sinha, Kapur, N.H. Bhagwati, S.K. Das, Jaffer Imam, Aiyyar, JJ.)
A reference was made by the President under Art. 143(1) of the Constitution of India
seeking the opinion of this Court on certain questions of law of considerable public
importance, i.e. to test the constitutional validity of certain provisions of the Kerala
Education Bill, 1957, which was passed by the Legislative Assembly of the State of
Kerala and was, reserved by the Governor of Kerala for the consideration of the
President. According to the counsel for the institutions, the reference was incomplete
and unsatisfactory as it did not bring out all the constitutional defects attached to the
provisions of the bill. Moreover, they apprehended that Supreme Court’s opinion on
these isolated abstract or hypothetical questions could prejudice the interest of the
institutions they represent and, therefore, the Supreme Court should not entertain this
reference or give any advisory opinion on the questions put before it.
Although this case involves discussions of some very significant Constitutional

issues, we will confine our discussion to the question of the Advisory Jurisdiction
only.
Per S.R. Das, C.J.:
[The Learned Chief Justice looks into the etymology of, and seeks to find global
parallels to, Article 143 of the Constitution. On the global front, he finds that such
provision is absent in the American Constitution. Even if there exists a similar
provision in Canada, he notes that the Courts have expressed their reluctance in
providing Advisory Opinions in several of such references. To locate the genesis of
this provision in the Indian context, he turns to the Government of India Act, 1935,
and opines:]
The Government of India Act, 1935, by section 213(1), authorised the Governor-
General to consult the Federal Court, if at any time it appeared to the Governor-
General that there had arisen or was likely to arise a question of law which was of
such a nature and of such public importance that it was expedient to obtain the
opinion of the Federal Court upon it and empowered that court, after such hearing as
they thought fit, to report to the Governor-General thereon. This provision has since
been reproduced word for word, except as to the name of the court, in clause (1)
of Art. 143 of our Constitution. That Article has a new clause, being clause (2) which
empowers the President, notwithstanding anything in the proviso to Art. 131, to refer
a dispute of the kind mentioned in the said clause to the Supreme Court for opinion
and the Supreme Court shall, after such hearing as it thinks fit, report to the President
its opinion thereon. It is worthy of note that, while under clause (2) it is obligatory
on this Court to entertain a reference and to report to the President its opinion
thereon, this Court has, under clause (1), a discretion in the matter and may in a
proper case and for good reasons decline to express any opinion on the questions
submitted to it. [...]
The present reference is the second of its kind under Art. 143(1) of the Constitution,
the first one being concerned with the In Re Delhi Laws Act, 1912 [AIR 1951 SC
332]. [...] The principles established by judicial decisions clearly indicate that the
complaint that the questions referred to us relate to the validity, not of a statute
brought into force but, of a Bill which has yet to be passed into law by being
accorded the assent of the President is not a good ground for not entertaining the
reference, for, [...] Art. 143(1) does contemplate the reference of a question of law
that is "likely to arise". It is contended that several other constitutional objections
also arise out of some of the provisions of the Bill considered in the light of other
provisions of the Constitution, e.g., Art. 19(1)(g) and Art. 337, and that as those
objections have not been included in the reference this Court should not entertain an
incomplete reference, for answers given to the questions put may be misleading in the
absence of answers to other questions that arise. In the first place it is for the
President to determine what questions should be referred and if he does not
entertain any serious doubt on the other provisions it is not for any party to say
that doubts arise also out of them and we cannot go beyond the reference and
discuss those problems. The circumstance that the President has not thought fit
to refer other questions as to the constitutional validity of some of the clauses of
the said Bill on the ground that they infringe other provisions of the Constitution
cannot be a good or cogent reason for declining to entertain this reference and
answer the questions touching matters over or in respect of which the President
does entertain some doubt.
Comment: This case puts to rest all questions about the nature of Advisory
Jurisdiction in India. It can be seen that India has seen several such Presidential
References with respect to very significant constitutional questions. Even though they
are by definition advices and are therefore not binding in nature, in most of these
cases, the parties have expressly stated that they intend to be bound by such advice,
for example, in the Third Judges’ Case.
Conclusion
This Chapter makes it clear that the Judiciary in India enjoys a position of enormous
significance. Judicial independence and the power of judicial review being made sacrosanct
and insurmountable by virtue of their inclusion into the Basic Structure Doctrine, the
Judiciary can play its role being the sentinel of the Constitution. The presence of plenary
constitutional provisions like Articles 129 and 142 allow the Judiciary to wield its powers of
justice delivery, sometimes even providing for extraordinary procedures (like the evolution of
the curative petitions) and remedies.
Section B
Legislature
Introduction
In this Chapter, we discuss the Legislature. There are different aspects of the Legislature that
have attracted constitutional adjudication. For example, the composition of the houses,
disqualification of members due to occupation of offices of profit, criminal convictions,
defections etc., the powers and privileges of Members of the Parliament and the State
Legislatures, and many other such issues have led to significant judgements, primarily by the
Supreme Court. This chapter seeks to discuss some of these landmark cases.
On Reservation of Seats for Groups in the Legislature
Case: R.C. Poudyal v. Union of India, AIR 1993 SC 1804 (Coram: Sharma, C.J.,
Venkatachalliah, Verma, Reddy, Agrawal, JJ.)
R. C. Poudyal filed this writ petition challenging the composition of the Sikkim
Legislative Assembly, which was constituted after the merger of Sikkim with India.
The two substantial questions of law that had arisen in this case are (i) whether a seat
can be earmarked at all in the Legislature of a State after its complete merger in India
for a representative of a group of religious institutions to be elected by them, and (ii)
whether seats can be reserved in favour of a particular tribe far in excess of its
population.
Per Sharma, C.J. (Dissenting):
[After elaborately discussing the historical developments surrounding Sikkim’s

merger with India, the Learned Judge looked at the issue of separate electorate for
separate religions. He observed:]
From the entire scheme of the Constitution, it is clear that its basic philosophy
eloquently rejects the concept of separate electorate in India. This conclusion is
reinforced by the historical background referred to above, the deliberations of the
Advisory Committee, and the discussion which took place in the Constituent
Assembly before giving final shape to the Constitution. I do not discover any reason
for assuming that while inserting Article 371F(f) in the Constitution there was
complete reversal of faith on this basic and vital matter, which was otherwise also not
permissible. It follows that consistent with the intention of the rest of the Constitution,
the provision regarding the delimitation of the Assembly constituencies in Article
371F(f) has to be interpreted in the same sense, as the expression has been used in the
other provisions. Clause (f) of Article 371F neither by its plain language nor
intendment permits separate electorates and any attempt to give a different
construction would not only be highly artificial and speculative but also would be
violative of a basic feature of the Constitution. I, accordingly, hold that the
provisions of section 25A of the Representation of the People Act, 1950 are also ultra
vires the Constitution and this furnishes another ground to strike down section
7 (1A)(c).
[On the reservation of seats for a particular tribe in excess of its population, he held:]
[...] If there is 90% reservation in the seats of a House in favour of 10% of the
population in the State, and only the remaining 10% of the seats are left to the
majority population, then the principle of adult suffrage as included in Article 326 is
sacrificed. By permitting the 90% of the population to vote not only for 10% seats
available to them, but also for the 90% reserved seats, the basic flaw going to the root
of the matter is not cured. The choice of the candidate and the right to stand as a
candidate at the election arc inherent in the principle of adult suffrage, that is, one-
man-one-vote. By telling the people that they have a choice to elect any of a select
group cannot be treated as a free choice of the candidate. This will only amount to lip
service, thinly veiled to conceal the reality of an oligarchy underneath. It will be just
an apology for democracy, a subterfuge; and if it is permitted to cross the limit so as
to violate the very core of the principle of one-man-one-vote, and is not controlled by
the constitutional safeguards as included in clause (3) of Article 332 of the
Constitution it will amount to a huge fraud perpetrated against the people. So far the
Sangha seat is concerned even this transparent cloak has been shed off. It has to be
appreciated that the very purpose of providing reservation in favour of a weaker
class is to aid the elemental principle of democracy based on one-man-one-vote to
succeed. The disproportionately excessive reservation creates a privileged class, not
brought to the same plane with others but put on a higher pedestal, causing unhealthy
competition, creating hatred and distrust between classes and fostering divisive forces.
This amounts to abnegations of the values cherished by the people of India (including
Sikkim), as told by their story of struggle and sufferings culminating into the framing
of the Indian Constitution (and the merger of Sikkim as one of the State in 1975). This
is not permissible even by an amendment of the Constitution.
Per Venkatatachlliah, J. (for himself, Verma, Reddy, JJ.):

[The Learned Judge also starts with an analysis of the special circumstances that led
to the incorporation of a special provision like Article 371(f) into the Constitution.
Moving on to the question of whether the clause violates any Basic Feature, he
answered in the negative. He opines:]
An examination of the constitutional scheme would indicate that the concept of

'one person one vote' is in its very nature considerably tolerant of imbalances
and departures from a very strict application and enforcement. The provision in
the Constitution indicating proportionality of representation is necessarily a broad,
general and logical principle but not intended to be expressed with arithmetical
precision. Articles 332 (3A) and 333 are illustrative instances. The principle of
mathematical proportionality of representation is not a declared basic
requirement in each and every part of the territory of India. Accommodations
and adjustments, having regard to the political maturity, awareness and degrees of
political development in different parts of India, might supply the justification
for even non-elected Assemblies wholly or in part, in certain parts of the country. The
differing degrees of political development and maturity of various parts of the
country, may not justify standards based on mathematical accuracy. Articles 371A, a
special provisions in respect of State of Negaland, 239A and 240 illustrate the
permissible areas and degrees of departure. The systemic deficiencies in the plenitude
of the doctrine of full and effective representation has not been understood in the
constitutional philosophy as derogating from the democratic principle. Indeed the
argument in the case, in the perspective, is really one of violation of the equality
principle rather than of the democratic principle. The inequalities in representation in
the present case are an inheritance and compulsion from the past. Historical
considerations have justified a differential treatment. Article 371F (f) cannot be said
to violate any basic feature of the Constitution such as the democratic principle.
[...] The provisions of clause (f) of the Article 371F and the consequent changes in the
electoral laws were intended to recognise and accommodate the pace of the growth of
the political institutions of Sikkim and to make the transition gradual and peaceful and
to prevent dominance of one section of the population over another on the basis of
ethnic loyalties and identities. These adjustments and accommodations reflect
political expediencies for the maintenance of social equilibrium. The political and
social maturity and of economic development might in course of time enable the
people of Sikkim to transcend and submerge these ethnic apprehensions and
imbalances and might in future - one hopes sooner - usher-in a more egalitarian
dispensation. Indeed, the impugned provisions, in their very nature, contemplate
and provide for a transitional phase in the political evolution of Sikkim and are
thereby essentially transitional in character.
It is true that the reservation of' seats of the kind and the extent brought about by the
impugned provisions may not, if applied to the existing States of the Union, pass the
Constitutional muster. But in relation to a new territory admitted to the Union, the
terms and conditions are not such as to fall outside the permissible constitutional
limits. Historical considerations and compulsions do justify in equality and
special treatment. [...]
[On the reservation of a seat for the Buddhist Sangha, the Learned Judge observes:]
The contention is that the reservation of one seat in favour of the 'Sangha' which is
Buddhist Lamaic religious monasteries, is one purely based on religious
considerations and is violative of Articles 15(1) and 325 of the Constitution and
offends its secular principles. The reservation of one seat for the 'Sangha', with a
special electorate of its own, might at the first blush appear to resuscitate ideas of
separate electorates considered pernicious for the unity and integrity of the country.
The Sangha, the Buddha and the Dharma are the three fundamental postulates and
symbols of Buddhism. In that sense they are religious institutions. However, the
literature on the history of development of the political institutions of Sikkim adverted
to earlier tend to show that the Sangha had played an important role in the political
and social life of the Sikkimese people. It had made its own contribution to the
Sikkimese culture and political development. There is material to sustain the
conclusion that the 'Sangha' had long been associated itself closely with the political
developments of Sikkim and was inter- woven with the social and political life of its
people. In view of this historical association, the provisions in the matter of
reservation of a seat for the Sangha recognises the social and political role of the
institution more than its purely religious identity. In the historical setting of
Sikkim and its social and political evolution the provision has to be construed
really as not invoking the impermissible idea of a separate electorate either.
Indeed, the provision bears comparison to Articles 333 providing for
representation for the Anglo-Indian community. So far as the provision for the
Sangha is concerned, it is to be looked at as enabling a nomination but the choice of
the nominee being left to the 'Sangha' itself. We are conscious that a separate
electorate for a religious denomination would be obnoxious to the fundamental
principles of our secular Constitution. If a provision is made purely on the basis
of religious considerations for election of a member of that religious group on the
basis of a separate electorate, that would, indeed, be wholly unconstitutional. But
in the case of the Sangha, it is not merely a religious institution. It has been
historically a political and social institution in Sikkim and the provisions in regard to
the seat reserved admit to being construed as a nomination and the Sangha itself being
assigned the task of and enabled to indicate the choice of its nominee. The provision
can be sustained on this construction.
Per Agrawal, J. (Partial Dissent):
[After reiterating the historical context, the Learned Judge observes:]
It would thus appear that by providing for reservation to the extent of 38% of seats in
the Legislative Assembly for Sikkimese of Bhutia-lepcha origin Parliament has
sought to strike a balance between protection to the extent of 50% that was available
to them in the former State of Sikkim and the protection envisaged under Article
332(3) of the Constitution which would have entitled them to reservation to the extent
of 25% seats in accordance with the proportion of their population to the total
population of Sikkim. It is argued that this departure from the provisions of Article
332(3) derogates from the principle of one man, one vote enshrined in the
Constitution and is destructive of Democracy which is a basic feature of the
Constitution. This argument proceeds on the assumption that for preservation of
Democracy, the principle of one man, one vote is inviolable and it fails to take note of
the non- obstante clause in Article 371-F which when read with clause (f) of Article
371-F envisage that Parliament may, while protecting the rights and interests of the
different sections of the population of Sikkim (which would include Sikkimese of
Bhutia-Lepcha origin), deviate from the provisions of the Constitution,
including Article 332. The principle of one man, one vote envisages that there
should be parity in the value of votes of electors. Such a parity though ideal for a
representative democracy is difficult to achieve. There is some departure in
every system following this democratic path. In the matter of delimitation of
constituencies, it often happens that the population of one constituency differs from
that of the other constituency and as a result although both the constituencies elect one
member, the value of the vote of the elector in the constituency having lesser
population is more than the value of the vote of the elector of the constituency having
a larger population. Take the instance of Great Britain. There a statutory allocation of
seats between England, Scotland, Wales and Northern Ireland whereunder Scotland is
to have not less than 71 seats; Wales not less than 35 and Northern Ireland 17. It has
been found that Scotland is over represented to the extent of 14 seats and Wales to the
extent of 5 seats and England is under- represented to the extent of 14 seats. The
justification that has been offered for these inequalities is that constituencies in
sparsely populated areas such as the Highlands would otherwise be inconveniently
large geographically. [...]
[On the contention that there has been a disproportionate reservation of seats in favour
of Bhutia - Lepchas, he opines:]
The non-obstante clause in Article 371-F read with clause (f) of the said Article
enlarges the field of deviation in the matter of reservation of seats from the proportion
laid down in Article 332(3). The only limitation on such deviation is that it must
not be to such an extent as to result in tilting the balance in favour of the
Scheduled Castes or the Scheduled Tribes for whom the seats are reserved and
thereby convert a minority in majority. This would adversely affect the democratic
functioning of the legislature in the State which is the core of representative
Democracy. Clause (a) of sub-s. (I-A) of s.7 of the 1950 Act provides for reservation
of twelve seats in an Assembly having thirty-two seats, i.e., to the extent of about
38% seats for Sikkimese of Bhutia-Lepcha origin. The said provision does not,
therefore, transgress the limits of the power conferred on Parliament under Article
371-F(f) and it cannot be said that it suffers from the vice of unconstitutionality.
[On the reservation of one seat for the Sangha, he observes:]

Clause (1) of Article 15 prohibits discrimination by the State against any citizen on
the ground only of religion, race, caste, sex or any of them. Clause (3), however,
permits the State to make special provision for women and children. Similarly, Clause
(4) permits the State to make special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes. Clauses (3) and (4) do not, however, permit making of special
provisions in derogation of the prohibition against discrimination on the ground
of religion. This Court has laid down that this constitutional mandate to the
State contained in Article 15(1) extends to political as well as to other rights and
any law providing for elections on the basis of separate electorates for members
of different religious communities offends against this clause. [...]
Similarly Article 325 requires that there shall be one general electoral roll for every
constituency for election to either House of Parliament or to the house of either House
of Legislature of a State and precludes a person being rendered ineligible for inclusion
in any such roll or to be included in any special electoral roll for any such
constituency on the grounds only of religion, race, caste, sex or any of them. [...]
The question for consideration is whether the impugned provisions providing for
reservation of one seat for Sanghas, preparation of a special electoral roll for the
Sangha constituency in which Sanghas alone can be registered as electors and a
person who is an elector in the said electoral roll alone being eligible to contest for the
Sangha seat, can be held to be violative of the provisions of Articles 15(1) and 325 on
the ground that in relation to one seat reserved for Sanghas in the Legislative
Assembly of the State of Sikkim a person who is a non-Budhist is being discriminated
on the ground of religion only and similarly in the preparation of the special electoral
roll for Sangha constituency a person who is a non-Budhist is rendered ineligible
for inclusion in the said electoral roll on the ground only of religion.
[Alluding to the historical context in which the Chogyal kings, Buddhists themselves,
used to provide these special statuses to the Buddhist Sangha, the Learned Judge
opines:]
This shows that the reservation of one seat for Sanghas in Sikkim Council and
subsequently in the Sikkim Assembly was in the context of the administrative set up
in Sikkim at the time wherein Sanghas were playing a major part in the taking of
decisions in the Council. The said reason does not survive after the admission of
Sikkim as a new State in the Indian Union. The continuation of a practice which
prevailed in Sikkim from 1958 to 1976 with regard to reservation of one seat for
Sanghas and the election to the said seat on the basis of a special electoral college
composed of Sanghas alone cannot, therefore, be justified on the basis of
historical considerations and the impugned provisions are violative of the
Constitutional mandate contained in Article 15 (1) and Article 325 of the
Constitution.
[On the question as to whether this patently unconstitutional practice could be saved
by Article 371(f), he observes:]
It has already been pointed out that Article 371-F, whether it is treated as having been
inserted in the Constitution by way of an amendment under Article 368 or by way of
terms and conditions on which Sikkim was admitted into the Indian Union
under Article 2, does not permit alteration of any of the basic features of the
Constitution. Although the expression 'Secular' did not find a place in the Constitution
prior to its insertion in the Preamble by Constitution (Forty-Second Amendment) Act,
1976, but the commitment of the leaders of our freedom struggle during the course of
freedom movement which finds expression in the various provisions of the
Constitution leaves no room for doubt that secularism is one of the basic features of
the Constitution. [...] In so far as clause (1) of Article 15 is concerned, express
provision has been made in clauses (3) and (4) empowering the State to make
special provisions for certain classes of persons. Sanghas, as such, do not fall
within the ambit of clauses (3) and (4) of Article 15 and therefore, a special
provision in their favour, in derogation of clause (1) of Article 15 is not
permissible. Article 325 also does not postulate any departure from the
prohibition with regard to special electoral roll contained therein. [...]
[Thus, he concludes:]
Having found that the impugned provision providing for a separate electoral roll for
Sangha Constituency contravenes Article 325 and reservation of one seat for Sanghas
contravenes Article 15(1) and Articles 325 and 15(1) are of crucial importance to the
concept of Secularism envisaged in the Constitution it becomes necessary to examine
whether Article 371-F permits a departure from the principle contained in Articles
325 and 15(1) while applying the Constitution to the newly admitted State of Sikkim.
I am unable to construe the provisions of Cl (f) of Article 371-F as conferring such a
power. Clause (f) of Article 371-F which empowers Parliament to make provision for
reservation of seats in the Legislative Assembly of Sikkim for protecting the rights
and interest of the different sections of the population of Sikkim, must be considered
in the context of clause (5) of the tripartite agreement of May 8, 1973. The 'different
sections' contemplated in clause (f) of Article 371-F are Sikkimese of Bhutia-Lepcha
origin on the one hand and Sikkimese of Nepali origin on the other and the said
provision is intended to protect and safeguard the rights and interests of these
sections. Clause (f) of Article 371-F, in my view, cannot be construed to permit
reservation of a seat for Sanghas and election to that seat on the basis of a separate
electoral roll composed of Sanghas only.
[Therefore, on these considerations, he only partly allowed the petition].
Comment: All the three sets of opinions in this case carry a lot of interesting insights,
insofar the different Judges’ differing approaches of looking at the socio-ethnic
groups in question are concerned. Especially with respect to the Buddhist Sangha,
whether to call the reservation of one seat as discrimination on the basis of religion or
not is a highly thought-provoking question which was answered using three different
approaches by the three sets of opinions in this case.
On the Composition of the Rajya Sabha
Case: Kuldip Nayar v. Union of India, AIR 2006 SC 3127 (Coram: Sabharwal,
C.J., Balakrishnan, Kapadia, Thakker and Balasubramanyan, JJ.)
Amendments were made in Sections 3 of the Representation of People Act, 1951

(hereon referred to as the ‘RP Act’) through the Representation of People
(Amendment) Act, 2003 which deleted the requirement of domicile in the state
concerned for a candidate to be elected to the Council of States (Rajya Sabha). There
were also amendments made to Sections 59, 94 and 128 which removed the secrecy
of voting through the introduction of an Open Ballot System in the election to the
Council of States. Thus, there arose two fundamental issues: (i) deletion of the
requirement of ‘domicile’, and (ii) importance of the concept of secrecy of voting.
Per Sabharwal, C.J.:
[To analyse the issue of the removal of the domicile requirement, the Learned Chief
Justice starts his analysis by looking at the meaning of the term “elector”, by referring
to different provisions of the RP Act, to ultimately conclude:]
All the above provisions of law have to be read together and the conjoint effect
thereof is that a person in order to qualify to be registered as an elector in relation
to a constituency, besides fulfilling other qualifications, must be a citizen of
India, not less than 18 years of age on the qualifying date (which by virtue of
Section 14 of RP Act, 1950, means the first day of January of the year in which
the electoral list of the constituency is prepared or revised), and, what is
significant here, be "ordinarily resident" in that constituency. As a result of the
impugned amendment to Section 3 of the RP Act, 1951, it is no longer required that
the candidate for an election to fill a seat in the Council of States be "ordinary
resident" of the State to which that seat pertains. The above amendment, which can be
loosely described as an amendment doing away with the requirement of domicile, has
been challenged as unconstitutional in the writ petitions at hand.
[Moving on, he refers to the argument advanced by the Counsel for the petitioner that
this removal of the domicile requirement is in violation of the principles of
Federalism, which is a key element of the Basic Structure of the Constitution. He
refers to the legislative history of these constitutional provisions and observes:]
To sum up, the legislative history indicates that residence is not a constitutional
requirement of clause (4) of Article 80. Residence is a matter of qualification.
Therefore, it comes under Article 84 which enables the Parliament to prescribe
qualifications from time to time depending upon the fact situation. Unlike USA,
residence is not a constitutional requirement. In the context of Indian Constitution,
residence/domicile is an incident of federalism which is capable of being regulated by
the Parliament as a qualification which is the subject matter of Article 84. This is
borne out by the legislative history.
[On the Federalism argument, he emphatically asserts:]
India is not a federal State in the traditional sense of the term. There can be no doubt
as to the fact, and this is of utmost significance for purposes at hand, that in the
context of India, the principle of federalism is not territory related. This is evident
from the fact that India is not a true federation formed by agreement between various
States and territorially it is open to the Central Government under Article 3 of the
Constitution, not only to change the boundaries, but even to extinguish a State.
Further, when it comes to exercising powers, they are weighed heavily in favour of
the Centre, so much so that various descriptions have been used to describe India such
as a pseudo-federation or quasi- federation in an amphibian form, etc. The
Constitution provides for the bicameral legislature at the centre. The House of the
People is elected directly by the people. The Council of States is elected by the
Members of the Legislative assemblies of the States. It is the electorate in every State
who are in the best position to decide who will represent the interests of the State,
whether as members of the lower house or the upper house.
It is no part of Federal principle that the representatives of the States must

belong to that State. There is no such principle discernible as an essential attribute of
Federalism, even in the various examples of upper chamber in other countries. [...] It
can be safely said that as long as the State has a right to be represented in the
Council of States by its chosen representatives, who are citizens of the country, it
cannot be said that federalism is affected. It cannot be said that residential
requirement for membership to the Upper House is an essential basic feature of
all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom has
chosen not to require residential qualification, it would definitely not violate the
basic feature of Federalism. Our Constitution does not cease to be a federal
constitution simply because a Rajya Sabha Member does not "ordinarily reside"
in the State from which he is elected.
[He also rejects the argument that the RP Act amendment is a violation of the Basic
Structure Doctrine, by referring o case law and pointing out that ordinary legislations
cannot be subject to the Basic Structure Test.]
[On the argument by the petitioner that the members being “representatives” of the
state should have the authority to represent, by being resident in the State, he
responds:]
We do not find any contradiction, ambiguity, or absurdity in the provisions of the law
as a result of the impugned amendment. Even while construing the provisions of the
Constitution and the RP Acts in the broadest or most generous manner, the rule of
"plain meaning" or "literal" interpretation compels us not to accept the contentions of
the petitioners. Upon being given their plain meaning, the words "representatives of
the States" in Article 80 (1) (b), Article 80 (2) and Article 80 (4) must be interpreted
to connote persons who are elected to represent the State in the Council of States. It is
the election that makes the person elected the "representative". In order to be
eligible to be elected to the Council of States, a person need not be a
representative of the State before hand. It is only when he is elected to represent
the State that he becomes a representative of the State. Those who are elected to
represent the State by the Electoral College, which for present purposes means
the elected members of the legislative assembly of the State, are necessarily the
"representatives" of the State. [...] On the same analogy, it must be said that when a
candidate is elected by the electorate comprising of the members of the Legislative
Assembly of the State to represent the State in the Council of States, he is elected and
chosen as "a representative of the State". The words "representative of the State"
do not in any manner connote that the representative must also be an elector or a
voter registered in the State itself.
When voting for a candidate in an election, perception of his skills as a legislator, his
knowledge of State affairs, his services to the constituency he seeks to represent and
the satisfaction or confidence in having him as the representative of the electorate are
enough considerations or qualifications. These considerations undoubtedly are
certainly of more weight than transitory or often illusory concept of "residence".
The Constitution, thus, has no requirement that a person chosen to represent a State in
the Council of States must necessarily be a voter in that State itself. The Constitution,
after prescribing certain qualifications and disqualifications, has left it to the
Parliament to provide other such qualifications or disqualifications. The Parliament
had initially prescribed an additional qualification that a person so chosen should be
an elector for a Parliamentary constituency in the State. After working out this
provision for more than five decades, the Parliament in its legislative wisdom, decided
through the impugned amendment that a person chosen to be a representative of a
State in the Council of States need not necessarily be an elector within the particular
State or, in other words he must be an elector in any parliamentary constituency in
India, but not necessarily in the concerned State.
[Hence, he goes on to conclude that there was nothing constitutionally wrong with
this prong of the impugned amendment].
[On the second issue, that is, the removal of the requirement for secret ballot, he refers
to the arguments advanced in support of the petitioner’s contention that Secrecy of
Ballot is a prerequisite for free and fair elections, and opines:]
The learned Counsel representing the petitioners, while arguing on the challenge to
the impugned amendment respecting the secrecy of ballot in the election to fill the
seats of the representatives of the States in the Council of States again referred to the
'basic structure' theory and submitted that democracy was part of the basic features of
the Constitution. They would submit that free and fair election was a concept inherent
in the democratic values adopted by our polity.
There cannot be any quarrel with these preliminary propositions urged on behalf of
the petitioners. It has been authoritatively held, time and again, by this Court that
democracy is a basic feature of the Constitution of India, one that is not amenable to
the power of amendment of the Parliament under the Constitution. It has also been the
consistent view of this Court that the edifice of democracy in this country rests on a
system of free and fair elections. These principles are discernible not only from the
preamble, which has always been considered as part of the Constitution, but also from
its various provisions. [He refers to a catena of case law to support this contention].
[However, he refuses to accept the contention that secrecy of ballot in the election of
members to the Council of States is a facet of democracy or free and fair elections. He
opines:]
The submission on the part of the Petitioner that a right to vote invariably carries as an
implied term, the right to vote in secrecy, is not wholly correct. Where the
Constitution thought it fit to do so, it has itself provided for elections by secret ballot,
e.g., in case of election of the President of India and the Vice-President of India. It is
apt to point out that unlike silence on the subject in the case of provisions of the
Constitution concerning election to fill the seats of the representatives of States in the
Council of States, Articles 55(3) and 66(1), that relate to the manner of election for
the offices of the President and the Vice President respectively, provide for election
by "secret ballot". [...] In both cases, it was felt necessary by the framers of the
Constitution to provide that the voting at such elections shall be by secret ballot
through inclusion of the words "and the voting at such election shall be by secret
ballot." If the right to vote by itself implies or postulates voting in secrecy, then
Articles 55(3) and 66(1) would not have required inclusion of such words. The
necessity for including the said condition in the said Articles shows that "secret
ballot" is not always implied. It is not incorporated in the concept of voting by
necessary implication. It follows that for 'secret ballot' to be the norm, it must be
expressly so provided. To read into Article 80(4) the requirement of a secret ballot
would be to read the words "and the voting at such election shall be by secret
ballot" into the provision. To do so would be against every principle of
Constitutional and statutory construction. In view of it not being the
requirement of the Constitution, as in the case of the President and the Vice
President, it was permissible for Parliament when passing legislation like
the Representation of the People Act to provide otherwise, that is to choose
between the system of secret ballot or open ballot. Thus, from this angle, it is
difficult to hold that there is Constitutional infirmity in providing open ballot system
for the Council of States.
Comment: The judgement provides for very interesting insights into the composition
and functioning of the Council of States. It also touches upon several important
issues, like whether ordinary laws can be subject to the Basic Structure test, whether
there is a Fundamental/ Constitutional Right to Vote, and several others.
On Premature Dissolution of the House and Holding of Elections
Case: In Re Special Reference 1 of 2002, (2002) 8 SCC 237 (Coram: Kirpal, C.J.,
Khare, Balakrishnan, Bhan, Pasayat, JJ.)
On the advice of the Chief Minister, the Governor of Gujarat dissolved the Legislative
Assembly on July 19th, 2002, about 8 months prior to its scheduled dissolution. The
Election Commission while preparing for fresh elections acknowledged that the six
month time period between two consecutive sessions of the House mentioned in
Article 174(1) was applicable to a dissolved Legislative Assembly as well. However,
it was noted that the Election Commission was not in a position to conduct elections
before the last date of expiry of the six month period starting from the date of the last
sitting of the dissolved Assembly. In light of these developments, the President of
India referred three questions to the Supreme Court. The first question was regarding
whether the requirements under Article 174 were subject to the decision regarding the
schedule of elections. The second question dealt with the matter of whether the
Election Commission could frame an election schedule based on the idea that
infractions of Article 174 were remedial by the President through the provisions of
Article 356. The final question was about whether the Election Commission was duty
bound to follow Article 174 by drawing on all the required resources from the Union
and State in pursuance of free and fair elections.
Per Khare, J.:
On the argument of learned counsel for the parties, the first question that arises for
consideration is whether Article 174(1) is applicable to a dissolved Assembly?
A plain reading of Article 174 shows that it stipulates that six months shall not
intervene between the last sitting in one session and the date appointed for its first
sitting in the next session. It does not provide for any period of limitation for holding
fresh election in the event a Legislative Assembly is prematurely dissolved. It is true
that after commencement of the Constitution, the practice has been that whenever
either Parliament or Legislative Assembly were prematurely dissolved, the election
for constituting fresh Assembly or Parliament, as the case may be, were held within
six months from the date of the last sitting of the dissolved Parliament or Assembly. It
appears that the Election Commission's interpretation of Article 174 that fresh
elections for constituting Assembly are required to be held within six months from the
date of the last sitting of the last session was very much influenced by the prevailing
practice followed by the Election Commission since enforcement of the Constitution.
At no point of time any doubt had arisen as to whether the interval of six months
between the last sitting of one session and the first sitting of the next session of the
Assembly under Article 174(1) provides a period of limitation for holding fresh
election to constitute new Assembly by the Election Commission in the event of a
premature dissolution of Assembly. Since the question has arisen in this Reference
and also in view of the fact that Article 174 on its plain reading does not show
that it provides a period of limitation for holding fresh election after the
premature dissolution of the Assembly, it is necessary to interpret the said
provision by applying accepted rules of interpretations.
[The Learned Judge looks at the Constituent Assembly Debates in order to look at the
real intent of Articles 85 and 174, and holds that these provisions do not have any
applicability in case of dissolved Assemblies. He also arrives at the same conclusion
by interpreting the word “session” in Articles 85 and 174, observing that a “session”
essentially implies a functional Assembly, and not a dissolved one].
[He then went into an analysis of the question as to whether there is a period of
limitation for holding the next election. To answer this, he observed:]
[…] [W]e do not find any provision expressly providing for any period of limitation
for constituting a fresh Legislative Assembly on the premature dissolution of the
previous Legislative Assembly. On our interpretation of Article 174(1), we have
already held that it does not provide for any period of limitation for holding
elections within six months from the date of last sitting of the session of the
dissolved Assembly. [He does not find any limitation imposed by the provisions of
the Representation of People Act, 1951 as well].
The aforesaid provisions also do not provide for any period of limitation for holding
elections for constituting new Legislative Assembly in the event of premature
dissolution of an existing Legislative Assembly, excepting that election process can
be set in motion by issuing a notification six months prior to the date on which the
normal duration of the Assembly expires.
[Thus, he concludes that:]
The provision in Article 174(1) that six months shall not intervene between its last
sitting in one session and the date appointed for its sitting in the next session is
mandatory and relates to the frequencies of the sessions of a live and existing
Legislative Assembly and does not provide for any period of limitation for holding
fresh elections for constituting Legislative Assembly on premature dissolution of the
Assembly.
[…]
Neither under the Constitution nor under the Representation of the People Act, any
period of limitation has been prescribed for holding election for constituting
Legislative Assembly after premature dissolution of the existing one. However, in
view of the scheme of the Constitution and the Representation of the People Act, the
elections should be held within six months for constituting Legislative Assembly from
the date of dissolution of the Legislative Assembly.
[…]
Per Balakrishnan, J.:
[The Learned Judge starts off by observing:]
The sole object of Article 174(1) is to ensure accountability of executive to the people
through their elected representatives. Article 164(2) states that the Council of
Ministers shall be collectively responsible to the Legislative Assembly of the State. In
a democratic form of Government the responsibility of the Government is to the
people of the country and the Members of the Legislative Assembly represent the
people of the State and the Council of Ministers shall be collectively responsible to
the Legislative Assembly. Therefore, frequency of the meeting of the Legislative
Assembly is necessary, otherwise, there will not be any check and balance to the
actions of the executive government.
[Coming to the role of the Election Commission in deciding the timings of the
Election, and the need to adhere to Article 174 in the process, he opines:]
Article 174 and Article 324 operate in different fields. Article 174 does not apply to
dissolved Assemblies. The schedule of the election of the Assembly is to be fixed
having regard to the urgency of the situation that a democratically elected
Government be installed at the earliest and the process of election shall start
immediately on the dissolution of the Assembly. Though the ultimate authority to
decide as to when a free and fair election can be conducted is Election
Commission, such decisions shall be just and reasonable and arrived at having
regard to all relevant circumstances. Any decision to postpone election on
unreasonable grounds is anathema to democratic form of government and it is
subject to judicial review on traditionally accepted grounds.
[Thus, he holds that Article 174 has no role to play in the Election Commissions’s
conduct of Free and Fair Elections].
Per Pasayat, J.:
[Identifying the sacrosanct nature of Democracy and Free and Fair Elections, both
being intrinsic elements of the Basic Structure Doctrine, the Learned Judge looks at
the meaning and significance of the term “Dissolution”, thus:]
The House of the People or the Legislature is a permanent body. On dissolution of the
House of the People or the Legislative Assembly, the House does not cease to be in
existence. Dissolution in its broadest sense means decomposition, disintegration,
undoing a bond. In a broad sense – the Constitutional - it implies the dismissal of an
Assembly or the House of the People. Dissolution is an act of the Executive which
dismisses the legislative body and starts the process through exercise of franchise by
the little men who are the supreme arbitrators of the State to put the new legislative
body in place. The natural dissolution is on expiry of period fixed under the
Constitution, and other mode of dissolution is by an act of the Executive. It is the
lawful act of the Executive that prematurely dissolution ends the life of the
Legislature. We are not concerned whether such an act of the Executive can be
subject to judicial review, which is another matter.
The exercise of the right of the Executive to dissolve the House of the People or the
Legislative Assembly pre-supposes certain conditions i.e. (i) the existence of a
representative body which is the object of dissolution and (ii) the act of the Executive
which implies a separate and distinct state organ vested with the power to dissolve
(iii) the consequential summoning of a new House of People or Legislative Assembly
after the election is held by the Election Commission and the result notified after its
conclusion.
The State organ vested with the right to dissolve Parliament must express its will to
do so in a manner which accords with the Constitution, and the relevant laws. The
primary consequence of dissolution is that House of People or the Legislative
Assembly, as the case may be, legally ceases to exist and cannot perform its
legislative functions. Such pre-mature interruption of the life of the House of the
People or the Legislative Assembly as the case may be, amongst others factors affects
it as a body as well as its individual members likewise its work is also abruptly ended,
subject to prescribed exclusions, if any. Any further meeting of the ex-members has to
be considered an ordinary meeting of citizens, and not an official session of the
Legislative Assembly or House of People in the legislative capacity.
When the House meets after the results of election are notified and notification has
been issued under the relevant law, it becomes a live body after it is duly constituted.
The constituents of the body may have been changed but the constitutional body
which is permanent one becomes alive again. Therefore, the submission that
under Article 174(1) time period fixed does not apply to dissolved Legislative
Assembly has substance.
Dissolution brings a legislative body to an end. It essentially terminates the life of

such body and is followed by a constitution of new body (a Legislative Assembly or a
House of People, as the case may be). Prorogation on the other hand relates to
termination of a session and thus preclude another session, unless it coincides with
end of the legislative term. The basic difference is that prorogation unlike
dissolution does not affect a legislative body’s life which may continue from
session to session, until brought to an end of dissolution. Dissolution draws the
final curtain upon the House. Once the House is dissolved it becomes irrevocable.
There is no power to recall the order of dissolution and or revive the previous
House. Consequently effect of dissolution is absolute and irrevocable. It has been
described by some learned authors that dissolution "passes a sponge ever the
parliamentary slate". The effect of dissolution is in essence termination of current
business of the legislative body, its sittings and sessions. There is a cessation of chain
of sessions, sittings and for a dissolved legislative body and there cannot be any next
session or its first sitting. With the election of legislative body a new Chapter comes
into operation. Till that is done, the sine qua non of responsible government i.e.
accountability is non-existent. Consequentially, the time stipulation is non-
existent. Any other interpretation would render use of the word "its" in relation
to "last sitting in one session" and "first sitting in the next session" without
significance.
[He concludes his discussions by stating:]
To sum up, answers to the questions set out in the Reference are as follows:
1. The provisions of Article 174 are mandatory in character so far as the time period
between two sessions is concerned in respect of live Assemblies and not dissolved
Assemblies. Article 174 and Article 324 operate in different fields. Article 174 does
not deal with elections which is the primary function of the Election Commission
under Article 324. Therefore, the question of one yielding to the other does not arise.
There is scope of harmonizing both in a manner indicated supra.
2. Article 174 is not relatable to a dissolved Assembly. Similar is the position under
Article 85 vis-a-vis House of People. Merely because the time schedule fixed under
Article 174 cannot be adhered to, that per se cannot be the ground for bringing into
operation Article 356.
3. As Article 174 does not deal with election, the question of Election Commissioner
taking the aid, assistance or co-operation of the Center or the State Governments or to
draw upon their resources to hold the election does not arise. On the contrary for
effective operation of Article 324 the Election Commission can do so to ensure
holding of free and fair election. The question whether free and fair election is
possible to be held or not has to be objectively assessed by the Election Commission
by taking into consideration all relevant aspects. Efforts should be to hold the election
and not to defer holding of election.
Conclusion: The key point that emerges out of this case is that Article 174 is meant to
ensure that the elected representatives remain accountable to the people. The six
month period specified as the maximum time that is allowed to pass between two
sittings is inapplicable to dissolved Legislative Assemblies. As a result it is not
mandatory to hold elections within six months of the dissolution of a Legislative
Assembly. However, the Election Commission should attempt to arrange for fresh
elections in an expedient manner (preferably within six months).
On the Ambit of the ‘Office of Profit’ Disqualification
Case: Jaya Bachchan v. Union of India, (2006) 5 SCC 266, (Coram: Sabharwal,
C.J., Thakker, Raveendran, JJ.)
The eminent Film Actress Jaya Bachchan, who was also a Member of Parliament in
the Rajya Sabha, was appointed as the Chairperson of the U.P. Film Development
Council. Due to this, she was disqualified as a member of the Rajya Sabha in
accordance with Article 102(1)(a) of the Indian Constitution. She contended that none
of the benefits conferred upon the Chairman by the Council were availed by her, and
that that in absence of any monetary considerations received by her, it cannot be said
that she was holding an office of profit.
Order (Per Sabharwal, C.J., Thakker, Raveendran, JJ.):
[The Court, after carefully perusing through the nature of benefits, pecuniary or
otherwise, that the office of the Chairperson of the U.P. Film Development Council,
entitles its holder to, observes:]
Clause (1)(a) of Article 102 provides that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament if he holds any
office of profit under the Government of India or the Government of any State, other
than an office declared by Parliament by law not to disqualify its holder. The term
`holds an office of profit' though not defined has been the subject matter of
interpretation, in several decisions of this Court. An office of profit is an office
which is capable of yielding a profit or pecuniary gain. Holding an office under
the Central or State Government to which some pay salary, emolument,
remuneration or non-compensatory allowance is attached, is `holding an office of
profit'. The question whether a person holds an office of profit is required to be
interpreted in a realistic manner. Nature of the payment must be considered as a
matter of substance rather than of form. Nomenclature is not important. In fact, mere
use of the word `honorarium' cannot take the payment out of the purview of profit, if
there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily
allowances in the nature of compensatory allowances, rent free accommodation and
chauffeur driven car at State expense, are clearly in the nature of remuneration and a
source of pecuniary gain and hence constitute profit. For deciding the question as to
whether one is holding an office of profit or not, what is relevant is whether the
office is capable of yielding a profit or pecuniary gain and not whether the
person actually obtained a monetary gain. If the "Pecuniary gain" is
"receivable" in connection with the office then it becomes an office of profit,
irrespective of whether such pecuniary gain is actually received or not. If the
office carries with it, or entitles the holder to, any pecuniary gain other than
reimbursement of out of pocket/actual expenses, then the office will be an office
of profit for the purpose of Article 102(1)(a).
[After referring to precedents on the issue, the Learned Judges conclude:]
[...] It is well settled that where the office carries with it certain emoluments or
the order of appointment states that the person appointed is entitled to certain
emoluments, then it will be an office of profit, even if the holder of the office
chooses not to receive/draw such emoluments. What is relevant is whether
pecuniary gain is "receivable" in regard to the office and not whether pecuniary
gain is, in fact, received or received negligibly.
In this case, as noticed above, the office carried with it a monthly honorarium of Rs.
5000, entertainment expenditure of Rs. 10,000, staff car with driver, telephones at
office and residence, free accommodation and medical treatment facilities to self and
family members, apart from other allowances etc. That these are pecuniary gains,
cannot be denied. The fact that the petitioner is affluent or was not interested in
the benefits/facilities given by the State Government or did not in fact, receive
such benefits till date, are not relevant to the issue.
[Therefore, they went on to dismiss the petition].
Comment: The assertion of the Court that in construing the term ‘Office of Profit’,
the important issue to be considered is whether the Office entitles the holder to profit,
rather than whether the holder has actually received any profit, is a very timely and
appropriate interpretation of Article 102 of the Constitution. However, it has been
noted that in the aftermath of this judgement, certain legal changes had been brought
about in order to bring certain specific offices and their holders outside the ‘Office of
Profit’ umbrella. Such laws, it is submitted, clearly militate against the very purpose
for which the disqualification had been put in the Constitution.
On Disqualification due to Criminal Convictions
Case: Lily Thomas v. Union of India, AIR 2013 SC 2662 (Coram: Patnaik,
Mukhopadhyay, JJ.)
This case arose out of a Public Interest Litigation asking the Supreme Court to declare
Section 8(4) of the Representation of People Act, 1951 as unconstitutional, in view of
Articles 102(1)(e) and 192(1)(e) of the Constitution. Section 8(4) states that a sitting
MP or MLA cannot be disqualified for three months from the date of conviction by a
Court for having committed an offence specified in clauses (1) to (3) of Section 8, and
if in that period he or she files an appeal against the conviction, till its disposal by a
higher court.
Per Patnaik, J.:
[After briefly summarising the points put forward by both sides, the Learned Judge
went into an elaborate analysis of Section 8(4) and Articles 102 and 191. He opined:]
The result of our aforesaid discussion is that the affirmative words used in Articles
102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the
same disqualifications for a person who is to be chosen as member of either House of
Parliament or as a member of the Legislative Assembly or Legislative Council of a
State and for a person who is a sitting member of a House of Parliament or a House of
the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the
Constitution put express limitations on such powers of the Parliament to defer the date
on which the disqualifications would have effect. Accordingly, sub-section (4)
of Section 8 of the Act which carves out a saving in the case of sitting members of
Parliament or State Legislature from the disqualifications under sub-sections (1),
(2) and (3) of Section 8 of the Act or which defers the date on which the
disqualification will take effect in the case of a sitting member of Parliament or a
State Legislature is beyond the powers conferred on Parliament by the
Constitution.
Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the

Constitution, we hold that Parliament has been vested with the powers to make law
laying down the same disqualifications for person to be chosen as a member of
Parliament or a State Legislature and for a sitting member of a House of Parliament or
a House of a State Legislature. We also hold that the provisions of Article
101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the
date from which the disqualification will come into effect in case of a sitting member
of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers
conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act
and accordingly sub-section (4) of Section 8 of the Act is ultra vires the
Constitution.
Comment: This judgement can be looked at a laudable effort by the Supreme Court
to cleanse the political sphere and restore public confidence in the political system.
However, like the previous case, here too, the government had made efforts to
circumvent the rigours of this judgement by bringing in an ordinance to restore the
effect of Section 8(4). But for some smart and aggressive political gimmickry by Mr.
Rahul Gandhi, this ordinance could well have been promulgated. These are not happy
signals, it is humbly submitted. It has to be appreciated that the cause of Rule of Law
can only be furthered if a minimum modicum of accountability is ensured by all the
organs of governance.
On Disqualification due to Defection
Case: Kihoto Hollohan v. Zachillhu, AIR 1992 SC 686 (Coram: Sharma, C.J.,
Venkatachalliah, Verma, Reddy, Agrawal, JJ.)
By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the

Anti-defection law) the Tenth Schedule was inserted in the constitution of India
providing for disqualification of a Member of either House of Parliament or of a State
Legislature found to have defected from one political party to another. This
amendment was challenged on many grounds, including on the ground that it violates
the Basic Structure of the Constitution.
Per Venkatachalliah, J. (for himself, Reddy, Agrawal, JJ.):
[The Learned Judge starts his analysis with the following observations on the nature
of the Parliamentary Democratic system:]
Parliamentary democracy envisages that matters involving implementation of policies

of the Government should be discussed by the elected representatives of the people.
Debate, discussion and persuasion are, therefor, the means and essence of the
democratic process. During the debates the Members put forward different points of
view. Members belonging to the same political party may also have, and may give
expression to, differences of opinion on a matter. Not unoften the view expressed by
the Members in the House have resulted in substantial modification, and even the
withdrawal, of the proposals under consideration. Debate and expression of different
points of view, thus, serve an essential and healthy purpose in the functioning of
Parliamentary democracy. At times such an expression of views during the debate in
the House may lead to voting or abstenance from voting in the House otherwise than
on party lines.
But a political party functions on the strength of shared beliefs. Its own political
stability and social utility depends on such shared beliefs and concerted action of
its Members in furtherance of those commonly held principles. Any freedom of
its members to vote as they please independently of the political party's declared
policies will not only embarrass its public image and popularity but also
undermine public confidence in it which, in the ultimate analysis, is its source of
sustenance - nay, indeed, its very survival. Intra-party debates are of course a
different thing. But a public image of disparate stands by Members of the same
political party is not looked upon, in political tradition, as a desirable state of things.
[...]
[On the relationship between the elected representative and his electors from the
constituency, the Learned judge observes:]
The working of the modern Parliamentary democracy is complex. The area of the
inter se relationship between the electoral constituencies and their elected
representatives has many complex features and overtones. The citizen as the
electorate is said to be the political sovereign. As long as regular general elections
occur, the electorate remains the arbiter of the ultimate composition of the
representative legislative body to which the Government of the day is responsible.
There are, of course, larger issues of theoretical and philosophical objections to the
legitimacy of a representative Government which might achieve a majority of the
seats but obtains only minority of the electoral votes. [...] But in the area of the
inter-relationship between the constituency and its elected representative, it is
the avowed endeavour of the latter to requite the expectations of his voters.
Occasionally, this might conflict with his political obligations to the political
party sponsoring him which expects - and exacts in its own way - loyalty to it. [...]
So far as his own personal views on freedom of conscience are concerned, there may
be exceptional occasions when the elected representative finds himself compelled to
consider more closely how he should act. [...]
Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and
justification underlying the power of recall. What might justify a provision for
recall would justify a provision for disqualification for defection. Unprincipled
defection is a political and social evil. It is perceived as such by the legislature.
People, apparently, have grown distrustful of the emotive political exultations that
such floor-crossings belong to the sacred area of freedom of conscience, or of the
right to dissent or of intellectual freedom. The anti-defection law seeks to recognise
the practical need to place the proprieties of political and personal conduct--
whose awkward erosion and grotesque manifestations have been the base of the
times - above certain theoretical assumptions which in reality have fallen into a
morass of personal and political degradation. We should, we think, defer to this
legislative wisdom and perception. The choices in constitutional adjudications quite
clearly indicate the need for such deference.
[The Learned Judge went on to declare that the impugned Amendment does in no way
violate the Basic Structure Doctrine. Only a part of it – Paragraph Seven, which
excluded the Court’s power of Judicial Review to be exercised over the Speaker’s
rulings on such defections, was struck down on Basic Structure considerations].
Per Verma, J. (dissenting, for Sharma, C.J. and himself):
[The Learned Judge agrees with the majority on the question of the unconstitutionality
of Paragraph 7. However, in his opinion, the unconstitutionality does not end there.
He points out procedural lapses in adopting this Amendment, for want of prior
ratification of the States to the Amendment Bill. He holds:]
Democracy is a part of the basic structure of our Constitution; and rule of law, and
free and fair elections are basic features of democracy. One of the Postulates of free
and fair elections is provision for resolution of election disputes as also adjudication
of disputes relating to subsequent disqualifications by an independent authority. It is
only by a fair adjudication of such disputes relating to validity of electrons and
subsequent disqualifications of members that true reflection of the electoral mandate
and governance by rule of law essential for democracy can be ensured. In the
democratic pattern adopted in our Constitution, not only the resolution of election
dispute is entrusted to a judicial tribunal, but even the decision on questions as to
disqualification of members under Articles 103 and 192 is by the President/Governor
in accordance with the opinion of the Election Commission. The constitutional
scheme, therefore, for decision on questions as to disqualification of members
after being duly elected, contemplates adjudication of such disputes by an
independent authority outside the House, namely, President/Governor in
accordance with the opinion of the Election Commission, all of whom are high
constitutional functionaries with security of tenure independent of the will of the
House. [...]
The Speaker's office is undoubtedly high and has considerable aura with the attribute
of impartiality. This aura of the office was even greater when the Constitution was
framed and yet the farmers of the Constitution did not choose to vest the authority of
adjudicating disputes as to disqualification of members to the Speaker; and provision
was made in Articles 103 and 192 for decision of such disputes by the
President/Governor in accordance with the opinion of the Election Commission. To
reason is not far to seek.
The Speaker being an authority within the House and his tenure being
dependent on the will of the majority therein, likelihood of suspicion of bias
could not be ruled out. The question as to disqualification of a member has
adjudicatory disposition and, therefore, requires the decision to be rendered in
consonance with the scheme for adjudication of disputes. Rule of law has in it firmly
entrenched, natural justice, of which, rule against Bias is a necessary concomitant;
and basic postulates of Rule against Bias are; Nemo judex in causa sua - À Judge is
disqualified from determining any case in which he may be, or may fairly be
suspected to be, biased'; and ìt is of fundamental importance that justice should not
only be done, but should manifestly and undoubtedly be seen to be done.' This
appears to be the underlying principle adopted by the framers of the Constitution in
not designating the Speaker as the authority to decide election disputes and questions
as to disqualification of members under Articles 103, 192 and 329 and opting for an
independent authority outside the House. The framers of the Constitution had in this
manner kept the office of the Speaker away from this controversy. There is nothing
unusual in this scheme if we bear in mind that the final authority for removal of a
Judge of the Supreme Court and High Court its outside the judiciary in the Parliament
under Article 124(4). On the same principle the authority to decide the question of
disqualification of a member of legislature is outside the House as envisaged by
Articles 103 and 192.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter
of such dispute with no provision for any appeal or revision against the
Speaker's decision to any independent outside authority. This departure in the
Tenth Schedule is a reverse trend and violates a basic feature of the Constitution
since the speaker cannot be treated as an authority contemplated for being
entrusted with this function by the basic postulates of the Constitution,
notwithstanding the great dignity attaching to that office with the attribute of
impartiality.
It is the Vice-President of India who is ex-officio chairman of the Rajya Sabha and his
position, being akin to that of the President of India, is different from that of the
Speaker. Nothing said herein relating to the office of the Speaker applies to the
Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only
authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of
the House and entrustment of this adjudicatory function fouls with the constitutional
scheme and, therefore, violates a basic feature of the Constitution. Remaining part of
the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect
would not apply to the Rajya Sabha alone whose Chairman is the Vice-President of
India, since the Tenth Schedule becomes unworkable for the Lok Sabha and the State
Legislatures. The Statutory exception of Doctrine of Necessity has no application
since designation of authority in the Tenth Schedule is made by choice while enacting
the legislation instead of adopting the other available options.
Since the conferment of authority is on the Speaker and that provision cannot be
sustained for the reason given, even without para 7, the entire Tenth Schedule is
rendered invalid in the absence of any valid authority for decision of the dispute.
Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the
ground of absence of ratification of the Bill, assuming it is permissible to strike down
para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional
also on account of violation of the aforesaid basic feature. Irrespective of the view on
the question of effect of absence of ratification, the entire Tenth Schedule must be
struck down as unconstitutionally.
Comment: This case is highly relevant not just with respect to the determination of
the contours of disqualification of members of legislatures due to defection, it has its
significance in the way Venkatachalliah, J., deals with the issues of political discipline
and intra-party democracy.
On the Constitutional Positions of the Governor and the Speaker vis-a-vis the
Legislature
Case: Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1 (Coram: Khehar, Dipak
Misra, Lokur, Ghose, Ramana, JJ.)
A notice of resolution for the removal of the Speaker of the Assembly Nabam Rebia,
was moved by some of the MLAs of the State of Arunachal Pradesh under Article
179(c) of the Constitution on the grounds that the Speaker was not functioning
neutrally, had flagrantly violated the Constitution and was not following appropriate
administrative procedure in making appointments. Immediately afterwards, the
members of the BJP requested the Governor to prepone the next session of the
assembly, such that the resolution for the removal of the Speaker could be dealt with
expeditiously. Without consulting the Council of Ministers, the Governor did so under
Article 174(1). He also passed additional orders.
The Speaker, considering the order of the Governor to be ultra vires, proceeded to
disqualify several members including the Deputy Speaker, following which, the
disqualified Deputy Speaker passed an order against the previous order of his
disqualification.
Eventually, this imbroglio reached the Supreme Court, where the Court had to inter se
make conclusive determination on the constitutional position of the Speaker under the
Constitution.
Per Khehar, J. (for himself and Ghose, Ramana, JJ.):
[The Learned Judge critically introspects the position of the Governor and the
Discretionary powers enjoyed by him, and opines:]
First of all, it is extremely essential to understand, the nature of powers and the
functions of the Governor, under the provisions of the Constitution. Insofar as the
instant aspect of the matter is concerned, it is apparent that the Governor has been
assigned functions and powers, concerning the executive and the legislative affairs of
the State. [After referring to the Constitutional provisions relevant to the issue, the
Learned Judge opines:] All in all, it is apparent, that the Governor is not assigned any
significant role in the executive functioning of the State. We would also endeavour to
examine the duties and responsibilities of the Governor in the legislative functioning
of a State. Details with reference to the same are found incorporated in Part VI
Chapter III of the Constitution, which includes Articles 168 to 212. [Here too, the
Learned Judge fails to find any significant legislative responsibility of the Governor].
The only responsibility allocated to the Governor under Article 208, is of making
rules as to the procedure with respect to communications between the two Houses of
State Legislature. All in all, it is apparent, that the Governor is not assigned any
significant role even in the legislative functioning of the State.
The above position, leaves no room for any doubt, that the Governor cannot be
seen to have such powers and functions, as would assign to him a dominating
position, over the State executive and the State legislature. [Referring to the
respondent’s views about the primacy of the Governor, the Learned Judge holds:]
Accepting the above position, will convert the Governor into an all- pervading super-
constitutional authority. This position is not acceptable because an examination of the
executive and legislative functions of the Governor, from the surrounding provisions
of the Constitution clearly brings out, that the Governor has not been assigned any
significant role either in the executive or the legislative functioning of the State. The
position adopted on behalf of the appellants, on the other hand, augurs well in an
overall harmonious construction of the provisions of the Constitution. Even on a
cursory examination of the relevant provisions of the Constitution, we are inclined to
accept the contention advanced on behalf of the appellants.
[He further refers to the Constituent Assembly Debates, the Sarkaria and the Punchhi
Commission recommendations, and relevant Supreme Court decisions to substantiate
his point. He holds:]
We are therefore of the considered view, that insofar as the exercise of discretionary
powers vested with the Governor is concerned, the same is limited to situations,
wherein a constitutional provision expressly so provides, that the Governor should act
in his own discretion. Additionally, a Governor can exercise his functions in his own
discretion, in situations where an interpretation of the concerned constitutional
provision, could not be construed otherwise. We therefore hereby reject the
contention advanced on behalf of the respondents, that the Governor has the
freedom to determine when and in which situation, he should take a decision in
his own discretion, without the aid and advice of the Chief Minister and his
Council of Ministers. We accordingly, also turn down the contention, that
whenever the Governor in the discharge of his functions, takes a decision in his
own discretion, the same would be final and binding, and beyond the purview of
judicial review. We are of the view, that finality expressed in Article 163(2) would
apply to functions exercised by the Governor in his own discretion, as are permissible
within the framework of Article 163(1), and additionally, in situations where the clear
intent underlying a constitutional provision, so requires i.e., where the exercise of
such power on the aid and advice, would run contrary to the constitutional scheme, or
would be contradictory in terms.
[The Learned Judge finally holds:]
[...] We are of the view, that it needs to be asserted as a constitutional determination,

that it is not within the realm of the Governor to embroil himself in any political
thicket. The Governor must remain aloof from any disagreement, discord,
disharmony, discontent or dissension, within individual political parties. The activities
within a political party, confirming turbulence, or unrest within its ranks, are beyond
the concern of the Governor. The Governor must keep clear of any political horse-
trading, and even unsavoury political manipulations, irrespective of the degree of their
ethical repulsiveness. Who should or should not be a leader of a political party, is a
political question, to be dealt with and resolved privately by the political party itself.
The Governor cannot, make such issues, a matter of his concern. The provisions of
the Constitution do not enjoin upon the Governor, the authority to resolve disputes
within a political party, or between rival political parties. The action of the Governor,
in bringing the aforesaid factual position to the notice of the President, in his monthly
communications, may well have been justified for drawing the President’s attention to
the political scenario of the State. But, it is clearly beyond the scope of the Governor’s
authority, to engage through his constitutional position, and exercise his constitutional
authority, to resolve the same. [...]
The Governor has no role whatsoever, in the removal of the Speaker (or the
Deputy Speaker) under Article 179. The question of adoption or rejection of a
notice of resolution, for the removal of the Speaker, is to be determined by the
legislators. If the resolution for the Speaker’s removal is supported by a simple
majority of the members of the House, the motion has to be adopted, and the Speaker
has to be removed. Failing which, the motion has to be rejected. Any action taken by
the Governor, based on disputations, with reference to activities in which he has no
role to play, is liable to be considered as extraneous. It is not for the Governor to
schedule the functioning of the Assembly. It is also not in the Governor’s
domain, to schedule the agenda of the House. The Governor has no role with
reference to the ongoings in the Assembly. The Governor must keep away, from
all that goes on, within the House.
As long as the democratic process in the Assembly functions through a Government,

which has the support of the majority, there can be no interference at the behest of the
Governor. A constitutional failure as contemplated under Article 356, is quite another
matter. So also, a constitutional failure under Article 360. Herein, the Governor has
not treaded the procedure postulated for a constitutional breakdown.
There is no justification for a Governor to be disturbed about proceedings in

connection with the disqualification of MLAs under the Tenth Schedule. Because, the
Governor has no role therein. Even the Chief Minister and his Council of Ministers,
have no concern with the disqualification proceedings contemplated under the Tenth
Schedule. Therefore, the legitimacy or illegitimacy thereof, is beyond
consideration of the Governor. That being the constitutional position, there can
be no justification in the Governor initiating action, based on proceedings
commenced against MLAs, under the Tenth Schedule. Any action taken by the
Governor, based on the proceedings being carried on under the Tenth Schedule,
would be a constitutional impropriety. It is open to individual MLAs, against
whom disqualification proceedings are taken (or who have been disqualified, and
consequently have lost their membership of the House), to seek judicial review
thereof. The fact that 14 MLAs who were disqualified by the Speaker – Nabam Rebia,
on 15.12.2015, had approached the Gauhati High Court, which had stayed the order of
their disqualification, demonstrates that there are appropriate remedies in place. The
Governor need not worry about, or involve himself in, issues which are within the
realm of other constitutional authorities. The Indian Constitution provides for checks
and balances, and a regime of redressal, for all situations.
Per Dipak Misra, J. (Concurring):
[He concurs with the majority, and only adds the following points with respect to the
constitutional position of the Speaker:]
[...] [T]he Speaker enjoys high constitutional status and the Constitution reposes
immense faith in him. For this reason alone, the Speaker is expected to have a sense
of elevated independence, impeccable objectivity and irreproachable fairness, and
above all absolute impartiality. This expectation is the constitutional warrant; not a
fond hope and expectation of any individual or group.
The Speaker has the duty to see that business of the House is carried out in a decorous
and disciplined manner. This functioning requires him to have unimpeachable faith in
the intrinsic marrows of the Constitution, constitutionalism and, “Rule of Law”. The
faith, needless to emphasise, should be a visible and apparent one. [...]
[...] The power conferred on the Speaker under the Tenth Schedule is enormous. It is
not to be forgotten that the Constitution of India is a controlled constitution. It
provides for checks and balances. Some are fundamentally inherent. Founding Fathers
had desired [...] the Speaker can be removed by the resolution passed by majority of
all the then members and not by the majority of the members present and voting. It is
to borne in mind that at the time of framing of the Constitution the Tenth Schedule
was not in existence in the Constitution. Certain grounds were mentioned in the
Constitution itself and it has also been provided that if a person is disqualified by or
under any law made by the Parliament. Therefore, it is necessary to sustain the
elevated position the Speaker constitutionally enjoys and also have room for
constitutional propriety. There can be myriad situations in a democracy. The
Constitution, as an organic instrument, has to be interpreted to meet all exigencies. It
has to have flexibility. [...]
The aforesaid reasoning eloquently speaks of the power, position and the status the
office of the Speaker enjoys under the Constitution. It also states about the scope of
the fiction. The Court has constricted the power of judicial review and restricted it to
the stage carving out certain extreme exceptions. It is because the speaker, while
exercising the authority/jurisdiction, exercises the power of “constitutional
adjudication”. The concept of constitutional adjudication has constitutional value in a
parliamentary democracy; and constitutional values sustain the democracy in a
sovereign Republic. The Speaker is expected to maintain propriety as an
adjudicator. The Speaker when functions as a tribunal has the
jurisdiction/authority to pass adverse orders. It is therefore, required that his
conduct should not only be impartial but such impartiality should be perceptible.
It should be beyond any reproach. It must reflect the trust reposed in him under
the Constitution. Therefore, the power which flows from the introduction of
Tenth Schedule by constitutional amendment is required to be harmoniously
construed with Article 179(c). Both the provisions of the Constitution are meant
to subserve the purpose of sustenance of democracy which is a basic feature of
the Constitution.
Per Lokur, J. (Concurring):
[The Learned Judge outlines the key facets of Article 163, as thus:]
The sum and substance of the historical background leading to Article 163 of the
Constitution, as enacted, is this: (i) The Council of Ministers will aid and advise the
Governor in the exercise of his functions. This is the first part of Article 163 (1) of the
Constitution. The Governor then has two options – (a) To reject the aid and advice
of the Council of Ministers and act in “his individual judgment”. This is an
illusory and non- existent option since the Constitution does not permit it. (b) To
act on the aid and advice of the Council of Ministers. By default this is the only real
option available to him. (ii) If the exercise of function is beyond the purview of the
aid and advice of the Council of Ministers but is by or under the Constitution, the
Governor can act “in his discretion”. Article 163(2) of the Constitution will have
reference only to the last part of Article 163(1) of the Constitution and is not all-
pervasive.
If there is a break-down in communications between the Council of Ministers and the

Governor, [...] then the Governor will not have the benefit of the aid and advice of the
Council of Ministers. In that event, the Governor may “take the matter into his own
hands and act freely.” The break-down of communications was a possibility under the
Government of India Act, 1935 since it was “in the main undemocratic” and there
could be a break-down of communications between the representative of His Majesty
and the Council of Ministers. However, if such a situation were to arise today in
independent India, namely, a breakdown of communications between the Governor
of a State and the Council of Ministers, it would be most unfortunate and detrimental
to our democracy. In the unlikely event of a complete break-down of
communications, the President can and must intervene to bring in constitutional
order.
[On the role of the Governor vis-a-vis Article 174, he observes:]
The historical background and the debates pertaining to Article 174 (and Article 85)
of the Constitution lead to the conclusion that it is only the Governor who may
summon the Legislative Assembly, but only on the advice of the Council of Ministers
and not suo moto. In other words, the Governor cannot summon the Legislative
Assembly “in his discretion”. If the Governor does so, there would be no business to
transact and summoning the House in such a situation would be a futile operation.
The Governor cannot manufacture any business for the House to transact, through a
so-called message or otherwise. If the Governor disregards the advice of the Council
of Ministers for summoning the House, necessary consequences would follow. In this
regard, it may be mentioned that if the President disregards the advice of the Council
of Ministers he can impeached. As far as the Governor is concerned, if he
disregards the advice of the Council of Ministers the pleasure of the President
can be withdrawn since the Governor holds office during his pleasure. On a
different note, if the Legislative Assembly does not meet once in six months, there
would be a breach of the Constitution requiring severe sanction.
[He also went on to declare that the governor had acted unilaterally, and therefore
went on to quash all his orders].
Comment: This case discusses a number of critical issues. While Khehar, J. and
Lokur, J. primarily deal with the unilateral actions of the Governor and the limitations
on his executive and legislative discretion, Misra, J., focuses on the elevated
constitutional position of the Speaker. Overall, all the Learned Judges point out the
need to maintain the objectivity and political detachment that such high Constitutional
offices necessitates, and renders a stinging blow to all such attempts that tend to
politicise such constitutional positions of paramount significance.
On Powers and Privileges of Legislators
Case: In Re Under Article 143 of the Constitution of India (Keshav Singh’s

Case), AIR 1965 SC 745 (Coram: Gajendragadkar, Shah, Rao, Wanchoo,
Hidayatullah, Ayyangar, JJ.)
The Speaker of the Legislative Assembly of Uttar Pradesh had reprimanded one
Keshav Singh, for having committed contempt of the House and also for having
committed a breach of the privileges of Narsingh Narain Pandey, a member of the
House by publishing a pamphlet against the said MLA. In pursuance of the decision
taken by the House later on the same day, the Speaker directed that Keshav Singh be
committed to prison for committing another contempt of the House by his conduct in
the House when he was summoned to receive the aforesaid reprimand and for writing
a disrespectful letter to the Speaker of the House earlier.
Mr. B. Solomon, an Advocate representing Keshav Singh before the Allahabad High
Court, alleged that his detention in jail was illegal on several grounds. The Court
passed an Order that Keshav Singh should be released on bail subject to certain
conditions and restrictions.
However, the House proceeded to take action against the two learned Judges who
passed the order on Keshav Singh's application, as well as Keshav Singh and his
Advocate.
The two learned Judges rushed to the Allahabad High Court with separate petitions
under Art. 226 of the Constitution, alleging that the impugned Resolution passed by
the House was wholly unconstitutional and violated the provisions of Art. 211 of the
Constitution. According to the petitions, in making an order releasing Keshav Singh,
the Judges were exercising their jurisdiction and authority as Judges of the High Court
under Art. 226. Their contention was that the resolution passed by the House
amounted to contempt of Court, and since it was wholly without jurisdiction, it should
be set aside and by an interim order its implementation should be stayed.
Apprehending that these developments had given rise to a very serious problem, a
Full Bench of the Allahabad High Court consisting of 28 Judges took up on the same
day the petitions presented before them by their two colleagues at Lucknow, issued
restraining orders against the Speaker from executing the warrant that it had issued.
Meanwhile, Mr. Solomon, the Advocate of Keshav Singh, presented a similar petition
to the High Court under Art, 226, praying for a writ of mandamus on the same lines as
the petitions filed by the two learned Judges.
This application again was heard by a Full Bench of 28 Judges of the Allahabad High
Court, and an interim order was passed prohibiting the implementation of the
resolution.
After this, the House passed a this resolution, withdrawing the arrest warrants issued
against the two learned Judges and Mr. Solomon were withdrawn, but placing an
obligation upon them to appear before the House and offer their explanations as to
why the House should not proceed against them for their alleged contempt of the
House.
At this stage, the President decided to exercise his power to make a reference to this
Court under Art. 143(1) of the Constitution.
The primary question that the Court was to answer in this reference pertained to the
scope and extent of the Legislative powers, privileges and immunities.
Per Gajendragadkar, J.:
[The Learned Judge rephrases the questions asked by the President as thus:]
It will thus be seen that the main controversy disclosed by the five questions
formulated by the President ultimately lies within a very narrow compass. Is the
House the sole and exclusive judge of the issue as to whether its contempt has been
committed where the alleged contempt has taken place outside the four walls of the
House? Is the House the sole and exclusive judge of the punishment which should be
imposed on the party whom it has found to be guilty of its contempt? And, if in
enforcement of its decision the House issues a general or unspeaking warrant, is the
High Court entitled to entertain a habeas corpus petition challenging the validity of
the detention of the person sentenced by the House? [...]
[To answer these questions, the Learned Judge ventures into a detailed analysis of
Article 194 of the Constitution that provides for Privileges of the Members of the
Legislative Assemblies, and its interplay with Part III of the Constitution, especially
Article 19(1)(a). He opines:]
It will be noticed that the first three material clauses of Art. 194 deal with three
different topics. Clause (1) makes it clear that the freedom of speech in the
Legislature of every State which it prescribes, is subject to the provisions of the
Constitution, and to the rules and standing orders, regulating the procedure of the
Legislature. While interpreting this clause, it is necessary to emphasise that the
provisions of the Constitution subject to which freedom of speech has been conferred
on the legislators, are not the general provisions of the Constitution but only such of
them as relate to the regulation of the procedure of the Legislature. The rules and
standing orders may regulate the procedure of the Legislature and some of the
provisions of the Constitution may also purport to regulate it; these are, for instance,
Articles 208 and 211. The adjectival clause "regulating the procedure of the
Legislature" governs both the preceding clauses relating to "the provisions of the
Constitution" and "the rules and standing orders." Therefore, clause (1) confers on the
legislators specifically the right of freedom of speech subject to the limitation
prescribed by its first part. It would thus appeal that by making this clause subject
only to the specified provisions of the Constitution, the Constitution-makers
wanted to make it clear that they thought it necessary to confer on the legislators
freedom of speech separately and, in a sense, independently of Art. 19(1)(a). If all
that the legislators were entitled to claim was the freedom of speech and
expression enshrined in Art. 19(1)(a), it would have been unnecessary to confer
the same right specifically in the manner adopted by Art. 194(1); and so, it would
be legitimate to conclude that Art. 19(1)(a) is not one of the provisions of the
Constitution which controls the first part of clause (1) of Art. 194.
Having conferred freedom of speech on the legislators, clause (2) emphasises the
fact that the said freedom is intended to be absolute and unfettered. Similar
freedom is guaranteed to the legislators in respect of the votes they may give in the
Legislature or any committee thereof. In other words, even if a legislator exercise
his right of freedom of speech in violation, say, of Art. 211, he would not be liable
for any action in any court. Similarly, if the legislator by his speech or vote, is
alleged to have violated any of the fundamental rights guaranteed by Part III of the
Constitution in the Legislative Assembly, he would not be answerable for the said
contravention in any court. If the impugned speech amounts to libel or becomes
actionable or indictable under any other provision of the law, immunity has been
conferred on him from any action in any court by this clause. He may be answerable
to the House for such a speech and the Speaker may take appropriate action against
him in respect of it; but that is another matter. It is plain that the Constitution-makers
attached so much importance to the necessity of absolute freedom in debates within
the legislative chambers that they thought it necessary to confer complete immunity
on the legislators from any action in any court in respect of their speeches in the
legislative chambers in the wide terms prescribed by clause (2). Thus, clause (1)
confers freedom of speech on the legislators within the legislative chamber and
clause (2) makes it plain that the freedom is literally absolute and unfettered.
That takes us to clause (3). The first part of this clause empowers the Legislatures of
States to make laws prescribing their powers, privileges and immunities; the latter
part provides that until such laws are made, the Legislatures in question shall enjoy
the same powers, privileges and immunities which the House of Commons enjoyed at
the commencement of the Constitution. The Constitution-makers must have thought
that the Legislatures would take some time to make laws in respect of their powers,
privileges and immunities. During the interval, it was clearly necessary to confer on
them the necessary powers, privileges and immunities. There can be little doubt that
the powers, privileges and immunities which are contemplated by clause (3), are
incidental powers, privileges and immunities which every Legislature must possess in
order that it may be able to function effectively, and that explains the purpose of the
latter part of clause (3).
This clause requires that the powers, privileges and immunities which are claimed by
the House must be shown to have subsisted at the commencement of the Constitution,
i.e., on January 26, 1950. It is well-known that out of a large number of privileges and
powers which the House of Commons claimed during the days of its bitter struggle
for recognition, some were given up in course of time, and some virtually faded out
by desuetude; and so, in every case where a power is claimed, it is necessary to
enquire whether it was an existing power at the relevant time. It must also appear that
the said power was not only claimed by the House of Commons, but was recognised
by the English Courts. It would obviously be idle to contend that if a particular power
which is claimed by the House was claimed by the House of Commons but was not
recognised by the English courts, it would still be upheld under the latter part of
clause (3) only on the ground that it was in fact claimed by the House of Commons. In
other words, the inquiry which is prescribed by this clause is : is the power in question
shown or proved to have subsisted in the House of Commons at the relevant time ?
Clause (4) extends the provision prescribed by the three preceding clauses to certain
persons therein described.
It will thus be seen that all the four clauses of Art. 194 are not in terms made
subject to the provisions contained in Part III. In fact, clause (2) is couched in such
wide terms that in exercising the rights conferred on them by clause (1), if the
legislators by their speeches contravene any of the fundamental rights guaranteed by
Part III, they would not be liable for any action in any court. Nevertheless, if for
other valid considerations, it appears that the contents of clause (3) may not
exclude the applicability of certain relevant provisions of the Constitution, it
would not be reasonable to suggest that those provisions must be ignored just
because the said clause does not open with the words "subject to the other
provisions of the Constitution." In dealing with the effect of the provisions
contained in clause (3) of Art. 194, wherever it appears that there is a conflict
between the said provisions and the provisions pertaining to fundamental rights,
an attempt will have to be made to resolve the said conflict by the adoption of the
rule of harmonious construction. [...]
The implications of the first part of clause (3) may, however, be examined at this
state. The question is, if the Legislature of a State makes a law which prescribed its
powers, privileges and immunities, would this law be subject to Art. 13 or
not? [Referring to the decision of the Supreme Court delivered in the case of M.S.M.
Sharma v. Sri Krishna Sinha, (AIR 1959 SC 395), the Learned Judge opines:] it must
not be taken as settled that if a law is made under the purported exercise of the power
conferred by the first part of clause (3), it will have to satisfy the test prescribed by the
fundamental rights guaranteed by the Constitution. If that be so, it becomes at once
material to enquire whether the Constitution-makers had really intended that the
limitations prescribed by the fundamental rights subject to which alone a law can be
made by the Legislature of a State prescribing its powers, privileges and immunities,
should be treated as irrelevant in construing the latter part of the said clause. The same
point may conveniently be put in another form. If it appears that any of the powers,
privileges and immunities claimed by the House are inconsistent with the fundamental
rights guaranteed by the Constitution, how is the conflict going to be resolved? Was it
the intention of the Constitution to place the powers, privileges and immunities
specified in the latter part of clause (3) on a much higher pedestal than the law which
the Legislature of State may make in that behalf on a future date? As a matter of
construction of clause (3), the fact that the first part of the said clause refers to future
laws which would be subject to fundamental rights, may assume significance in
interpreting the latter part of clause (3). That, in brief, is the position of the first three
material provisions of Art. 194.
[On the question as to who decides the legality of a decision taken in pursuance of
Article 194(3), the Learned Judge goes on to hold:]
There is another aspect of this matter which must also be mentioned; whether or not
there is distinct and rigid separation of powers under the Indian Constitution, there is
no doubt that the Constitution has entrusted to the Judicature in this country the task
of construing the provisions of the Constitution and of safeguarding the fundamental
rights of the citizens. When a statute is challenged on the ground that it has been
passed by Legislature without authority, or has otherwise unconstitutionally
trespassed on fundamental rights, it is for the courts to determine the dispute and
decide whether the law passed by the legislature is valid or not. Just as the legislatures
are conferred legislative functions, and the functions and authority of the executive lie
within the domain of executive authority, so the jurisdiction and authority of the
Judicature in this country lie within the domain of adjudication. If the validity of any
law is challenged before the courts, it is never suggested that the material
question as to whether legislative authority has been exceeded or fundamental
rights have been contravened, can be decided by the legislatures themselves.
Adjudication of such a dispute is entrusted solely and exclusively to the
Judicature of this country; and so, we feel no difficulty in holding that the
decision about the construction of Art. 194(3) must ultimately rest exclusively
with the Judicature of this country.
[The Court revisits the M.S.M. Sharma case and culls out the majority decision from
that case as: if there is a conflict between the operation of Article 194(3) and Article
19(1)(a) or 21, the former provision is not subject to Article 19(1(a), but is subject to
Article 21. He goes on to elaborately discuss the jurisprudence of Legislative
Privilege, by comparing the Indian position with corresponding position in England
and Canada. Eventually, he goes on to observe:]
[...] If a citizen moves this Court and complains that his fundamental right under Art.
21 had been contravened, it would plainly be the duty of this Court to examine the
merits of the said contention, and that inevitably raises the question as to whether the
personal liberty of the citizen has been taken away according to the procedure
established by law. [...] If in a given case, the allegation made by the citizen is that he
has been deprived of his liberty not in accordance with law, but for capricious or mala
fide reasons, this Court will have to examine the validity of the said contention, and it
would be no answer in such a case to say that the warrant issued against the citizen is
a general warrant and a general warrant must stop all further judicial inquiry and
scrutiny. In our opinion, therefore, the impact of the fundamental constitutional
right conferred on Indian citizens by Art. 32 on the construction of the latter
part of Art. 194(3) is decisively against the view that a power or privilege can be
claimed by the House though it may be inconsistent with Art. 21. [...]
If the power of the High Courts under Art. 226 and the authority of this Courts
under Art. 32 are not subject to any exceptions, then it would be futile to contend that
a citizen cannot move the High Courts or this Court to invoke their jurisdiction even
in cases where his fundamental rights have been violated. The existence of judicial
power in that behalf must necessarily and inevitably postulate the existence of a right
in the citizen to move the Court in that behalf; otherwise the power conferred on the
High Courts and this Court would be rendered virtually meaningless. Let it not be
forgotten that the judicial power conferred on the High Courts and this Court is meant
for the protection of the citizens' fundamental rights, and so, in the existence of the
said judicial power itself is necessarily involved the right of the citizen to appeal to
the said power in a proper case.
[On the role played by the Advocate to represent his client, and a warrant by invoking
Article 194(3) being slapped on him, the Learned Judge opines:]
[...] It is hardly necessary to emphasise that in the enforcement of fundamental rights

guaranteed to the citizens the legal profession pays a very important and vital role,
and so, just as the right of the Judicature to deal with matters brought before
them under Art. 226 or Art. 32 cannot be subjected to the powers and privileges
of the House under Art. 194(3), so the rights of the citizens to move the
Judicature and the rights of the advocates to assist that process must remain
uncontrolled by Article 194(3). That is one integrated scheme for enforcing the
fundamental rights and for sustaining the rule of law in this country. Therefore, our
conclusion is that the particular right which the House claims to be an integral part of
its power or privilege is inconsistent with the material provisions of the Constitution
and cannot be deemed to have been included under the latter part of Art. 194(3).
[He goes on to hold that Keshav Singh, Solomon and the two Learned Judges had not
committed any contempt of the House, and that the Legislature, in exercise of its
Legislative Privileges, cannot be allowed to take any action against any Judge hearing
a Habeas Corpus petition, or an Advocate representing his client in the said matter].
Per Sarkar, J.:
The main question in this reference is whether the Assembly has the privilege of
committing a person for contempt by a general warrant, that is, without stating the
facts which constituted the contempt, and if it does so, have the courts of law the
power to examine the legality of such a committal? In other words, if there is such a
privilege, does it take precedence over the fundamental rights of the detained citizen?
It is said on behalf of the Assembly that it has such a privilege and the interference by
the court in the present case was without jurisdiction. The question is then of the
privilege of the Assembly, for if it does not possess the necessary privilege, it is not
disputed, that what the High Court has done in this case would for the present
purposes be unexceptionable.
[After elaborately discussing the law of Privileges, Contempt of the House and
concomitant issues in the Common Law jurisprudence, the Learned Judge comes to
an analysis of the M.S.M. Sharma decision, and observes:]
I feel no doubt, however, that the majority judgment in Sharma's case was perfectly
correct when it held that privileges were not subject to fundamental rights. I have
earlier set out the first three clauses of Art. 194. The first clause was expressly made
subject to the provisions of the Constitution - whatever the provisions contemplated
were - while the third clause was not made so subject. Both the majority and the m
minority judgments are agreed that the third clause cannot, therefore, be read as if it
had been expressly made subject to the provisions of the Constitution. For myself, I
do not think that any that other reading is possible. Clause (3) of Art. 194 thus not
having been expressly made subject to the other provision of the Constitution, how is
a conflict between it and any other provisions of the Constitution which may be found
to exist, to be resolved? The majority held that the principle of harmonious
construction has to be applied for reconciling the two and Art. 194(3) being a special
provision must take precedence over the fundamental right mentioned in Art.
19(1)(a) which was a general provision. Though Subba Rao, J., said that there was no
inherent inconsistency between Art. 19(1)(a) and Art. 194(3), he nonetheless applied
the rule of harmonious construction. He felt that since the legislature had a wide range
of powers and privileges and those privileges can be exercised without infringing the
fundamental rights, the privilege should yield to the fundamental right. This
construction, he thought, gave full effect to both the articles. With great respect to the
learned Judge, I find it difficult to follow how this interpretation produced the result
of both the articles having effect and thus achieving a harmonious construction.
[He goes on to the other arguments advanced in support of the contention that the
majority decision in M.S.M. Sharma had been incorrectly decided, and rejected each
one of them. He goes on to observe:]
No doubt Sharma's case was concerned with the concerned with the conflict
between Art. 19(1)(a) and the privilege of the House under the second part of Art.
194(3) to prohibit publication of its proceedings and, therefore, it was unnecessary to
refer to the other fundamental rights. The reason, however, which led the majority to
hold that the conflict between the two had to be resolved by giving precedence to the
privilege would be available the case of a conflict between many other privileges and
many other fundamental rights. Now that reason was that the resolve the conflict,
the rule of harmonious construction had to be applied and the result of that
would be that fundamental rights, which in their nature were general, had to
yield to the privileges which were special. The whole decision of majority in that
case was that when there was a conflict between a privilege created by the second part
of Art. 194(3) and a fundamental right, that conflict should be resolved by
harmonising the two. The decision would apply certainly to the conflict between the
privilege of committal to prison for contempt by a general warrant without the
validity of that warrant being reviewed by a court of law and the fundamental rights
guaranteed by Arts. 21, 22 and 32. The majority judgment would be authority for
holding that the conflict should be resolved by a harmonious construction. Indeed that
was the view of the minority also. The difference was as to the actual construction.
For the reasons earlier stated I come to the conclusion that when there is a conflict
between a privilege conferred on a House by the second part of Art. 194(3) and a
fundamental right, that conflict has to be resolved by harmonising the two provisions.
It would be wrong to say that the fundamental right must have precedence over
the privilege simply because it is a fundamental right or for any other reason. In
the present case the conflict is between the privilege of the House to commit a person
for contempt without that committal being liable to be examined by a court of law and
the personal liberty of a citizen guaranteed by Art. 21 and the right to move the courts
in enforcement of that right under Art. 32 or Art. 226. If the right to move the courts
in enforcement of the fundamental right is given precedence, the privilege which
provides that if a House commits a person by a general warrant that committal would
not be reviewed by courts of law, will lose all its effect and it would be as if that
privilege had not been granted to a House by the second part of Art. 194(3). This, in
my view, cannot be. That being so, it would follow that when a House commits a
person for contempt by a general warrant that person would have no right to
approach the courts nor can the courts sit in judgment over such order of
committal.
Comment: This Presidential Reference is relevant for a number of reasons. It is
significant not only for an authoritative analysis on the synergies between the power
of the House to punish for its contempt and the other Legislative Privileges, it also
provides very interesting insights into the interplay between Article 194 and the
Fundamental Rights, especially Articles 19(1)(a) and 21, insofar as it reconsiders the
decision rendered in the M.S.M. Sharma case.
On the Extent of Legislative Privileges
Case: P.V. Narasimha Rao v. State (CBI/ SPE), AIR 1998 SC 2120 (Coram:
Agrawal, G.N. Ray, Anand, Bharucha, Rajendra Babu, JJ.)
This case involves the infamous JMM Bribery Scandal in which some Members of
Parliament belonging to the Jharkhand Mukti Morcha (JMM) were allegedly paid
bribes to save the then Government led by Mr. P.V. Narasimha Rao in the Vote of
Confidence before the Lok Sabha. A criminal prosecution was initiated against the
alleged bribe-givers and bribe-takers. However, it was challenged on the ground, inter
alia, that the Parliamentary Privileges of MPs extends to anything done “in respect
of” parliamentary proceedings.
We will confine our discussions to the majority and minority opinions only on this
specific point, the extent of immunity accorded to the bribe taker.
Per Bharucha, J. (for himself and Rajendra Babu, J.):
By reason of Sub-article (1) of Article 105, members of Parliament enjoy freedom of

speech subject only to the provisions of the Constitution and the rules and standing
orders regulating the procedure of Parliament. That express provision is made for
freedom of speech in Parliament in sub-article (1) of article 105 suggests that this
freedom is independent of the freedom of speech conferred by Article 19 and
unrestricted by the exceptions contained therein. This is recognition of the fact
that members need to be free of all constraints in the matter of what they say in
Parliament if they are effectively to represent their constituencies in its
deliberations. Sub-article (2) of Article 105 puts negatively what sub-article (1) states
affirmatively.
Both sub-articles must be read together to determine their content. By reason of the
first part of sub-article (2), no member is answerable in a court of law or any similar
tribunal for what he has said in Parliament. This again is recognition of the fact that a
member needs the freedom to say what he thinks is right in Parliament undeterred by
the fear of being proceeded against. A vote, whether cast by voice or gesture or the
aid of a machine, is treated as an extension of speech or a substitute for speech
and is given the protection that the spoken word has. Two comments need to be
made in regard to the plain language of the first part of sub-article (2). First, what has
protection is what has been said and a vote that has been cast, not something that
might have been said but was not, or a vote that might have been cast but was not.
Secondly, the protection is broad, being "in respect of". It is so given to secure the
freedom of speech in Parliament that sub-article (1) provides for. It is necessary,
given the role members of Parliament must perform. The protection is absolute
against court proceedings that have a nexus with what has been said, or a vote that has
been cast in Parliament. The second part of sub-article (2) provides that no person
shall be liable to any proceedings in any court in respect of the publication of any
report, papers, votes or proceedings if the publication is by or under the authority of
either House of Parliament. A person who publishes a report or papers or votes or
proceedings by or under the authority of Parliament is thereby given protection in the
same broad terms against liability to proceedings in any court connected with such
publication. The constitution having dealt with the all - important privilege of
members of Parliament to speak and vote therein as they deem fir, freed of the fear of
attracting legal proceedings concerning what they say or how they vote, provides for
other powers, privileges and immunities is sub-article (3). Till defined by Parliament
by enactment, they are such as were enjoyed before the Constitution came into force;
that is to say, they are such as were enjoyed by the House of Commons just before
26th January, 1950. For it to be established that any power, privilege or immunity
exists under sub-article (3), it must be shown that power, privilege or immunity had
been recognised as inhering in the House of Commons at the commencement of the
Constitution. So important was the freedom to speak and vote in Parliament thought
to be that it was expressly provided for, not left to be gathered, as other powers,
privileges and immunities were, from the House of Commons. In so far as the
immunity that attaches to what is spoken in Parliament and to a vote given therein is
concerned, provision is made in sub-article (2); it is only in other respects that sub-
article (3) applies. [...]
[After elaborately going through a catena of cases on the issue of Privileges in India
as well as in other jurisdictions, the Learned Judge concludes:]
Broadly interpreted, as we think it should be, Article 105(2) protects a Member of

Parliament against proceedings in court that relate to, or concern, or have a
connection or nexus with anything said, or a vote given, by him in Parliament.
The charge against the alleged bribe takers is that they "were party to a criminal
conspiracy and agreed to or entered into an agreement with" the alleged bribe givers
"to defeat the no-confidence motion..........by illegal means, viz., to obtain or agree to
obtain gratification other than legal remunerations" from the alleged bribe givers "as a
motive or reward for defeating the no-confidence motion and in pursuance thereof
"the alleged bribe givers "passed on several lacs of rupees" to the alleged bribe takers,
"which amounts were accepted" by then . The stated object of the alleged conspiracy
and agreement is to defeat the no-confidence motion and the alleged bribe takers are
said to have received monies "as a motive or reward for defeating" it. The nexus
between the alleged conspiracy and bribe and the no-confidence motion is explicit.
The charge is that the alleged bribe takers the bribes to secure the defeat of the no-
confidence motion. [...]
[...]The object of the protection is to enable members to speak their mind in

Parliament and vote in the same way, freed of the fear of being made answerable on
that account in a court of law. It is not enough that members should be protected
against civil action and criminal proceedings, the cause of action of which is their
speech or their vote. To enable members to participate fearlessly in Parliamentary
debates, members need the wider protection of immunity against all civil and
criminal proceedings that bear a nexus to their speech or vote. It is for that
reason that member is not "liable to any proceedings in any court in respect of
anything said or any vote given by him". Article 105(2) does not say, which it
would have if the learned Attorney General were right, that a member is not liable for
what he has said or how he has voted. While imputing no such motive to the present
prosecution, it is not difficult to envisage a member who has made a speech or cast a
vote that is not to the liking of the powers that be being troubled by a prosecution
alleging that he had been party to an agreement and conspiracy to achieve a certain
result in Parliament and had been paid a bribe.
We are acutely conscious of the seriousness of the offence that the alleged bribe taker
are said to have committed. If true, they bartered a most solemn trust committed to
them by those they represented. By reason of the lucre that they received, they
enabled a Government to survive. Even so, they are entitled to the protection that
the Constitution plainly affords them. Our sense of indignation should not lead us
to construe the Constitution narrowly, impairing the guarantee to effective
Parliamentary participation and debate.
Per G.N. Ray, J (Concurring):
[He agrees with the reasonings of Bharucha, J., with respect to the immunity of
Members of Parliament from Criminal Prosecution. He observes:]
Article 105 of the Constitution deals with powers, privileges etc. of the Houses of
Parliament and the members and committees thereof. Sub article (1) of Article
105 makes it evident that subject to the provisions of the Constitution and rules and
standing orders regulating the procedure of Parliament, there shall be freedom of
speech in Parliament. The provisions of Sub-article (1) Article 105 indicates in no
uncertain term that the freedom of speech guaranteed under sub Article (1)
of Article 105 is independent of the freedom of speech guaranteed under Article
19 of the Constitution and such freedom of speech under Article 105 (1) is not
inhibited or circumscribed by the restrictions under Article 19 of the
Constitution. In order to ensure effective functioning of Parliamentary democracy,
there was a felt need that a Member of Parliament will have absolute freedom in
expressing his views in the deliberations made in the door of Parliament. Similarly he
must enjoy full freedom in casting his vote in Parliament.
The protections to be enjoyed by a Member of Parliament as contained in Sub-Article

(2) of Article 105 essentially flows from the freedom of speech guaranteed under Sub-
Article (1) of Article 105. Both the Sub-articles (1) and (2) complement each other
and indicate the true content of freedom of speech and freedom to exercise the right to
vote envisaged in Article 105 of the Constitution. The expression "in respect of"
appearing in several articles of the Constitution and in some other legislative
provisions has been noticed in a number of decisions of this Court. The correct
interpretation of the expression "in respect of cannot be made under any rigid formula
but must be appreciated with references to the context in which it has been used and
the purpose to be achieved under the provision in question. The context in which the
expression "in respect of" has been used in sub article (2) of Article 105 and the
purpose for which the freedom of speech and freedom to vote have been guaranteed in
sub-article (2) of Article 105 do not permit any restriction or curtailment of such right
expressly given under sub-article (1) and sub-article (2) of Article 105 of the
Constitution. It must, however be made clear that the protection under sub-
article (2) of Article 105 of the Constitution must relate to the vote actually given
and speech actually made in Parliament by a Member of Parliament. In my view,
the protection against proceedings in court as envisaged under Sub-article
(2) of Article 105 must necessarily be interpreted broadly and not in a restricted
manner. Therefore, an action impugned in a court proceeding which has a nexus
with the vote cast or speech made in Parliament must get the protection under
sub-article (2) of Article 105. [...]
Per Agrawal, J. (Dissenting, for himself and Anand, J.):
[...] Clauses (1) and (2) of Article 105 are interlinked, while clause (1) secures to the
Members freedom of speech in Parliament, clause (2) safeguards and protects the said
freedom by conferring immunity on the Members from liability in respect of anything
said or any vote given by him in Parliament or in any committee thereof. This is
necessary because for a regulatory body like Parliament, the freedom of speech is of
the utmost importance and a full and free debate is on the essence of Parliamentary
democracy. [...] The protection given under clause (2) of Article 105 is [...] personal
in nature and is available to the member in respect of anything said or in any
vote given by him in the House or any committee thereof. The said clause does
not confer an immunity for challenge in the court on the speech or vote given by
a Member of Parliament. [...]The position under clause (2) of Article 105 is [that]
the said clause does not prescribe that a speech made or vote given by a member
in Parliament cannot be made the basis of civil or criminal proceedings at all.
The said clause only gives protection to the member who has made the speech or
has given the vote from liability in any proceeding in a court of law. Therefore,
[...] it cannot be said that no offence was committed by those who are alleged to
have offered the illegal gratification and by those who had received such
gratification to vote against the No Confidence Motion and for that reason the
charge of conspiracy and abetment must also fall.
It would indeed be ironic if a claim for immunity from prosecution founded on the
need to ensure the independence of Members of Parliament in exercising their right to
speak or cast their vote in Parliament, could be put forward by a Member who has
bartered away his independence by agreeing to speak or vote in a particular manner in
lieu of illegal gratification that has been paid or promised. Bu claiming the immunity
such a Member would only be seeking a licence to indulge in such corrupt conduct.
[In conclusion, he holds:]
As mentioned earlier, the object of the immunity conferred under Article 105(2) is to
ensure the independence of the individual legislators. Such independence is necessary
for healthy functioning of the system of parliamentary democracy adopted in the
Constitution. Parliamentary democracy is a part of the basic structure of the
Constitution. An interpretation of the provisions of Article 105(2) which would
enable a Member of Parliament to claim immunity from prosecution in a
criminal court for an offence of bribery in connection with anything said by him
or a vote given by him in Parliament or any committee thereof and thereby place
such Members above the law would not only be repugnant to healthy functioning
of Parliamentary democracy but would also be subversive of the Rule of Law
which is also an essential part of the basic structure of the Constitution. It is
settled law that in interpreting the constitutional provisions the court should adopt a
construction which strengthens the foundational features and the basic structure of the
Constitution. The expression ìn respect of' precedes the words ànything said or any
vote given' in Article 105(2). The words ànything said or any vote given' can only
mean speech that has already been made or a vote that has already been given.
The immunity from liability, therefore, comes into play only if a speech has been
made or vote has been given. The immunity would not be available in a case
where a speech has not been made or a vote has not been given. When there is a
prior agreement whereunder a Member of Parliament has received an illegal
consideration in order to exercise his right to speak or to give his vote in particular
manner on matter coming up for consideration before the House, there can be two
possible situations. There may be an agreement whereunder a Member accepts illegal
gratification and agrees not to speak in Parliament or not to give his vote in
Parliament. The immunity granted under Article 105(2) would not be available to
such a Member and he would be liable to be prosecuted on the charge of bribery
in a criminal court. [...] It is difficult to conceive that the framers of the Constitution
intended to make [...] a distinction in the matter of grant of immunity between a
Member of Parliament who receives bribe for speaking or giving his vote in
Parliament in a particular manner and speaks or gives his vote in that manner and a
Member of Parliament who receives bribe for not speaking or not giving his vote on a
particular matter coming up before the House and does not speak or give his vote as
per the denying such immunity to the latter. Such an anamolous situation would be
avoided if the words ìn respect of' in Article 105(2) are construed to mean àrising
our of'. If the express in ìn respect of' is thus construed, the immunity conferred
under Article 105(2) would be confined to liability that arises out of or is attributable
to something that has been said or to a vote that has been given by a Member in
Parliament or any committee thereof. The immunity would be available only if the
speech that has been made or the vote that has been given is an essential and integral
part of the cause of action for the proceedings giving rise to the liability. The
immunity would not be available to give protection against liability for an act that
precedes the making of the speech or giving of vote by a Member in Parliament even
though it may have a connection with the speech made or the vote given by the
Member if such an act gives rise to a liability which arise independently and does not
depend on the making of the speech or the giving of vote in Parliament by the
Member. Such an independent liability cannot be regarded as liability in respect of
anything said or vote given by the Member in Parliament. The liability for which
immunity can be claimed under Article 105(2) is the liability that has arisen as a
consequence of the speech that has been made or the vote that has been given in
Parliament.
[He goes on to declare that the immunity under Article 105 does not extent to the
bribe-takers].
Comment: The majority view in this case, it is humbly submitted, does a great
disservice to the cause of parliamentary integrity by extending the immunity of
Parliamentary Privileges to even cover acts of taking bribes for casting votes. The
dissenting view of construing “in respect of” as “arising out of” seems to be a more
plausible line of interpretation that does not make the all-pervasive clout of
Parliamentary Privileges render the basic features completely redundant.
On Privileges and Judicial Review
Case: Raja Ram Pal Singh v. The Hon’ble Speaker, Lok Sabha, (2007) 3 SCC
184, (Coram: Sabharwal, C.J., Balakrishnan, Thakker, Raveendran, Jain, JJ.)
Certain private television channels had telecast programmes on 12th December, 2005
depicting 10 MPs belonging to the Lok Sabha and two belonging to the Rajya Sabha
accepting money, directly or through middleman, as consideration for raising certain
questions in the House and in relation to implementation of Member of Parliament
Local Area Development Scheme. This led to extensive publicity in media. The
Presiding Officers of each House of the Parliament instituted inquiries through
separate Committees, culminating in the expulsion of MPs in December, 2005. With
some of the MPs challenging the expulsion as unconstitutional, and claiming they had
been entrapped, the scandal foreshadowed a constitutional showdown in the Supreme
Court.
The issues before the Supreme Court, inter alia, were whether the Parliament has the
power to expel its members. In answering this question, the Supreme Court was also
required to look into the basic question as to whether the decision to expel a Member
can be subject to any form of Judicial Review. Sabharwal, C.J. rendered the majority
opinion on behalf of himself and Balakrishnan and Jain, JJ. Thakker, J. rendered a
separate concurring opinion. Raveendran, J. rendered a dissenting opinion.
In our analysis, we will focus specifically on some of the observations made by

Sabharwal, C.J., in his majority opinion.
Per Sabharwal, C.J. (for himself, Balakrishnan, Jain, JJ.):
[On whether the Parliament has the power of expelling such a delinquent member, he
observes:]
It is axiomatic to state that expulsion is always in respect of a member. At the same

time, it needs to be borne in mind that a member is part of the House due to which his
or her conduct always has a direct bearing upon the perception of the House. Any
legislative body must act through its members and the connection between the
conduct of the members and the perception of the House is strong. We, therefore,
conclude that even if the Parliament had only the limited remedial power to
punish for contempt, the power to expel would be well within the limits of such
remedial contempt power. We are unable to find any reason as to why
legislatures established in India by the Constitution, including the Parliament
under Article 105 (3), should be denied the claim to the power of expulsion
arising out of remedial power of contempt.
[On the question as to whether the Supreme Court can go into a Judicial Review of
the Parliament’s decision, he answers in the affirmative. He summarises the principles
to be followed when the Court goes into a Judicial Review of such an act of
expulsion:]
a. Parliament is a co-ordinate organ and its views do deserve deference even while its
acts are amenable to judicial scrutiny;
b. Constitutional system of government abhors absolutism and it being the cardinal

principle of our Constitution that no one, howsoever lofty, can claim to be the sole
judge of the power given under the Constitution, mere co-ordinate constitutional
status, or even the status of an exalted constitutional functionaries, does not disentitle
this Court from exercising its jurisdiction of judicial review of action which part-take
the character of judicial or quasi-judicial decision;
c. The expediency and necessity of exercise of power or privilege by the legislature

are for the determination of the legislative authority and not for determination by the
courts;
d. The judicial review of the manner of exercise of power of contempt or privilege

does not mean the said jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the functions discharged by the legislature

under the Constitution and the majesty and grandeur of its task, there would always be
an initial presumption that the powers, privileges etc have been regularly and
reasonably exercised, not violating the law or the Constitutional provisions, this
presumption being a rebuttable one;
f. The fact that Parliament is an august body of co-ordinate constitutional position

does not mean that there can be no judicially manageable standards to review exercise
of its power;
g. While the area of powers, privileges and immunities of the legislature being
exceptional and extraordinary its acts, particularly relating to exercise thereof, ought
not to be tested on the traditional parameters of judicial review in the same manner as
an ordinary administrative action would be tested, and the Court would confine itself
to the acknowledged parameters of judicial review and within the judicially
discoverable & manageable standards, there is no foundation to the plea that a
legislative body cannot be attributed jurisdictional error;
h. The Judicature is not prevented from scrutinizing the validity of the action of the
legislature trespassing on the fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges by legislatures cannot be

decided against the touchstone of fundamental rights or the constitutional provisions
is not correct;
j. If a citizen, whether a non-member or a member of the Legislature, complains that

his fundamental rights under Article 20 or 21 had been contravened, it is the duty of
this Court to examine the merits of the said contention, especially when the impugned
action entails civil consequences;
k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to

the Parliamentary proceedings in Article 105(3) of the Constitution;
l. The manner of enforcement of privilege by the legislature can result in judicial

scrutiny, though subject to the restrictions contained in the other Constitutional
provisions, for example Article 122 or 212;
m. Articles 122 (1) and Article 212 (1) displace the broad doctrine of exclusive
cognizance of the legislature in England of exclusive cognizance of internal
proceedings of the House rendering irrelevant the case law that emanated from courts
in that jurisdiction; inasmuch as the same has no application to the system of
governance provided by Constitution of India;
n. Article 122 (1) and Article 212 (1) prohibit the validity of any proceedings in
legislature from being called in question in a court merely on the ground of
irregularity of procedure;
o. The truth or correctness of the material will not be questioned by the court nor will
it go into the adequacy of the material or substitute its opinion for that of the
legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an

extraneous purpose or being actuated by caprice or mala fide intention, and the court
will not lightly presume abuse or misuse, giving allowance for the fact that the
legislature is the best judge of such matters, but if in a given case, the allegations to
such effect are made, the Court may examine the validity of the said contention, the
onus on the person alleging being extremely heavy;
q. The rules which the legislature has to make for regulating its procedure and the
conduct of its business have to be subject to the provisions of the Constitution;
r. Mere availability of the Rules of Procedure and Conduct of Business, as made by

the legislature in exercise of enabling powers under the Constitution, is never a
guarantee that they have been duly followed;
s. The proceedings which may be tainted on account of substantive or gross illegality
or unconstitutionality are not protected from judicial scrutiny;
t. Even if some of the material on which the action is taken is found to be irrelevant,
the court would still not interfere so long as there is some relevant material sustaining
the action;
u. An ouster clause attaching finality to a determination does ordinarily oust the

power of the court to review the decision but not on grounds of lack of jurisdiction or
it being a nullity for some reason such as gross illegality, irrationality, violation of
constitutional mandate, mala fides, non-compliance with rules of natural justice and
perversity.
[Applying these tests to the decision of the Parliamentary Committee, the Learned
Chief Justice opines:]
It is the contention of the petitioners that the evidence relied upon by the two Houses
of Parliament does not inspire confidence and could not constitute a case of breach of
privilege. Their argument is that the decision of expulsion is vitiated since it violated
all sense of proportionality, fairness, legality, equality, justice or good conscience, and
it being bad in law also because, as a consequence, the petitioners have suffered
irreparable loss inasmuch as their image and prestige had been lowered in the eyes of
the electorate. We are of the considered view that the impugned resolutions of
Lok Sabha and Rajya Sabha cannot be questioned before us on the plea of
proportionality. We are not sitting in appeal over the decision of the Legislative
chambers with regard to the extent of punishment that deserved to be meted out
in cases of this nature. That is a matter which must be left to the prerogative and
sole discretion of the legislative body. All the more so because it is the latter which
is the best Judge in exercise of its jurisdiction the object of which is self- protection.
So long as the orders of expulsion are not illegal or unconstitutional, we are not
concerned with the consequences for the petitioners on account of these
expulsions. In these proceedings, this Court cannot not allow the truthfulness or
correctness of the material to be questioned or permit the petitioners to go into
the adequacy of the material or substitute its own opinion for that of the
Legislature. Assuming some material on which the action is taken is found to be
irrelevant, this Court shall not interfere so long as there is some relevant material
sustaining the action. We find this material was available in the form of raw footage
of video recordings, the nature of contents whereof are reflected in the Inquiry reports
and on which subject the petitioners have not raised any issue of fact.
On perusal of the Inquiry reports, we find that there is no violation of any of the
fundamental rights in general and Articles 14, 20 or 21 in particular. Proper
opportunity to explain and defend having been given to each of the petitioners, the
procedure adopted by the two Houses of Parliament cannot be held to be suffering
from any illegality, irrationality, unconstitutionality, violation of rules of natural
justice or perversity. It cannot be held that the petitioners were not given a fair deal.
Comment: The important point to be noted here is that there is a virtual unanimity on
the question as to whether the parliament’s decision is open to a judicial scrutiny.
Even the dissenting Judge, Raveendran, J., accepts this position that there can be no
“judicial hands-off” if the Parliament has exceeded the limits of his power. In this
context, he refers to Bhagwati, J.’s observation from the State of Rajasthan case that
“So long as a question arises whether an authority under the Constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by the Court.
Indeed it would be its constitutional obligation to do so. It is for the Supreme Court to
uphold the constitutional values and to enforce the constitutional limitations. That is
the essence of the rule of law. Where there is manifestly unauthorized exercise of
power under the Constitution, it is the duty of the Court to intervene.” However, the
point of his dissent is with respect to the Parliamentary act of expulsion of the
members. He relies on the decision of the majority in the P.V. Narasimha Rao case to
underline his point thus:
“The appropriate course in case of allegation of corruption against a Member of

Parliament, is to prosecute the member in accordance with law (The immunity
under Article 105(2) may not be available, as the decision in P.V.Narasimha Rao v.
State recognizes immunity to a member who is a bribe taker only where the 'bribe' is
taken in respect of a 'vote' given by him in Parliament and not otherwise). Such cases
can be fast tracked. Pending such criminal proceedings, the member can be suspended
temporarily, if necessary, so as to prevent him from participating in the deliberations
of the Houses. On being tried, if the member is convicted, he becomes disqualified for
being or continuing as a Member under Article 102(1)(e). If he is acquitted, he is
entitled to continue as a member. Though it may sound cumbersome, that apparently
is what the Constitution intends.
I am, therefore, of the considered view that there is no power of expulsion in the
Parliament, either inherent or traceable to Article 105(3). Expulsion by the House will
be possible only if Article 102 or Article 101 is suitably amended or if a law is made
under Article 102(1)(e) enabling the House to expel a member found unworthy or
unfit of continuing as a member.”
Conclusion
The cases that have been discussed over the course of this Chapter clearly point towards one
unmistakable conclusion – the Courts have been steadfastly trying to ensure that the political
arena is cleansed of people with questionable integrity. If one looks at the more recent cases,
especially the ones from the last couple of decades, one can clearly see that the Judiciary has
been trying to uphold the constitutional validity of any law that seeks to disqualify dubious
members of the legislature and any steps taken by the Speaker towards that end. This is a
very welcome sign. Only with such incessant vigil by the Judiciary, probity and
accountability in the political arena will be attained.
Section C
Executive
Introduction
This Chapter discusses some of the important cases concerning the Executive. The Chapter
starts with an analysis of cases that deal with the Parliamentary Form of Government in India,
as opposed to the Presidential Form, as seen in countries like the United States. It then moves
on to discussing different issues with respect to the powers and functions of the Executive
functionaries under the Constitution – the President and the Governors, the Prime Minister
and the Members of the Council of Ministers, the members of the Administrative Executive,
etc. It also discusses some areas which have attracted some significant constitutional
interpretation by the judiciary – power of pardon, promulgation of ordinances etc.
On the Nature of “Executive Functions”
Case: Rai Sahib Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549
(Coram: Mukherjea, C.J., Bose, Jagannadhadas, Aiyyar, Jaffer Imam, JJ.)
Six persons who prepared, printed, published and sold text books for various classes
in the schools of Punjab were aggrieved by a number of notifications issued by the
Education Department under the Government of Punjab. They contended that the
notifications created restrictions on right to carry on trade guaranteed under Article
19(1)(g). They argued that such a restriction could not be created by means of
executive orders without legislative backing wherein the legislation conformed to the
requirements of Article 19(6). The petitioners sought a writ of mandamus directing
the Government of Punjab to withdraw the notifications which they alleged to have
affected their rights.
In his judgement, the Learned Chief Justice made some extremely pertinent
observations outlining the distinction between the Presidential and Parliamentary
forms of governments, and categorically asserted that India adheres to the latter
model.
Per Mukherjea, C.J.:
[Referring to Article 162 of the Constitution, which contain the basis of the exercise
of the Executive Power of the State Executives, the Learned Chief Justice opines:]
[…] [U]nder this article the executive authority of the State is executive in respect to
matters enumerated in List II of Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution itself or in any law passed by
the Parliament. Similarly, article 73 provides that the executive powers of the Union
shall extend to matters with respect to which the Parliament has power to made laws
and to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or any agreement. The proviso engrafted
on clause (1) further lays down that although with regard to the matters in the
Concurrent List the executive authority shall be ordinarily left to be State it would be
open to the Parliament to provide that in exceptional cases the executive power of the
Union shall extend to these matters also. Neither of these articles contain any
definition as to what the executive function is and what activities would legitimately
come within its scope. They are concerned primarily with the distribution of the
executive power between the Union on the one hand and the States on the other. They
do not mean […] that it is only when the Parliament or the State Legislature has
legislated on certain items appertaining to their respective lists, that the Union or the
State executive, as the case may be, can proceed to function in respect to them. On the
other hand, the language of article 162 clearly indicates that the powers of the
State executive do extend to matters upon which the state Legislature is
competent to legislate and are not confined to matters over which legislation has
been passed already. The same principle underlies article 73 of the Constitution.
[On the nature and extent of the “Executive Functions”, he opines:]
It may not be possible to frame an exhaustive definition of what executive function

means and implies. Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away. The Indian Constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently differentiated and consequently it
can very well be said that our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another. The
executive indeed can exercise the powers of departmental or subordinate legislation
when such powers are delegated to it by the legislature. It can also, when so
empowered, exercise judicial functions in a limited way. The executive Government,
however, can never go against the provisions of the Constitution or of any law. This is
clear from the provisions of article 154 of the Constitution but, as we have already
stated, it does not follow from this that in order to enable the executive to
function there must be a law already in existence and that the powers of
executive are limited merely to the carrying out of these laws.
[He outlines the nature of the Indian Democracy, when he observes:]
The limits within which the executive Government can function under the Indian
Constitution can be ascertained without much difficulty by reference to the form of
the executive which our Constitution has set up. Our Constitution, though federal
in its structure, is modelled on the British Parliamentary system where the
executive is deemed to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining the confidence of
the legislative branch of the State. The executive function comprises both the
determination of the policy as well as carrying it into execution. This evidently
includes the initiation of legislation, the maintenance of order, the promotion of
social and economic welfare, the direction of foreign policy, in fact the carrying
on or supervision of the general administration of the State.
In India, as in England, the executive has to act subject to the control of the
legislature; but in what way is this control exercised by the legislature? Under article
53(1) of our Constitution, the executive power of the Union is vested in the President
but under article 75 there is to be a Council of Minister with the Prime Minister at the
head to aid advise the President in the exercise of his functions. The President has
thus been made a formal or constitutional head of the executive and the real
executive powers are vested in the Ministers or the Cabinet. The same provisions
obtain in regard to the Government of States; the Governor or the Rajpramukh,
as the case may be, occupies the position of the head of the executive in the State
but it is virtually the Council of Ministers in each State that carries on the
executive Government. In the Indian Constitution, therefore, we have the same
system of parliamentary executive as in England and the Council of Ministers
consisting, as it does, of the members of the legislature is, like the British
Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the
State to the executive part." The Cabinet enjoying, as it does, a majority in the
legislature concentrates in itself the virtual control of both legislative and executive
functions; and as the Ministers constituting the Cabinet are presumably agreed on
fundamentals and act on the principle of collective responsibility, the most important
questions of policy are all formulated by them.
[He concludes his discussions on the limits of the Executive Power, and states:]
As we have said already, the executive Government is bound to conform not only to
the law of the land but also to the provisions of the Constitution. The Indian
Constitution is a written Constitution and even the legislature cannot override the
fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of
the executive are deemed to be sanctioned by the legislature, yet they can be declared
to be void and inoperative if they infringe any of the fundamental rights of the
petitioners guaranteed under Part III of the Constitution. On the other hand, even if
the acts of the executive are illegal in the sense that they are not warranted by law, but
no fundamental rights of the petitioners have been infringed thereby, the latter would
obviously have no right to complain under Article 32 of the Constitution though they
may have remedies elsewhere if other heads of rights are infringed.
[Turning to the facts of the instant case, infraction of no Fundamental Rights of the
Petitioner could be proved, and the petitions were therefore dismissed accordingly].
Comment: In this case, the Court makes very pertinent observations of the nature and
limits of the powers exercisable by the Union and the State Executives in India. In
doing so, the Court emphatically asserts the fact that India has a Parliamentary
Democratic form of Government, where the President and Governors are merely
titular heads, and the real power vests with the Council of Minister, who are
collectively responsible to the Houses of the Legislature.
On the Extent of Executive Discretion
Case: Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 (Coram: Ray, C.J.,
Palekar, Mathew, Chandrachud, Alagiriswami, Bhagwati, Krishna Iyer, JJ.)
Shamsher Singh was a subordinate judge on probation whose service was terminated
without reason by the Government of Punjab in the name of the Governor. The
service of Ishwar Chand Agarwal who was engaged in the Punjab Civil Services
(Judicial Branch) and still on probation was also dispensed by the Governor of Punjab
acting on the instructions of Chief Minister who based his advice on the
recommendations of the High Court. They challenged the dismissals, arguing that
such removal from service by the Governor could only be in exercise of personal
discretion. In doing so, they relied on the decision of the Supreme Court in the case of
Sardari Lal v. Union of India (AIR 1971 SC 1547), where the Supreme Court had
carved out some space for the personal discretion of the President and the Governor.
The State on the other hand contended that the Governor exercises such powers
conferred to him by or under the Constitution only based on the aid and advice of the
Council of Ministers and not out of his personal discretion.
Per Ray, C.J. (for himself, Palekar, Mathew, Chandrachud, Alagiriswami, JJ.):
[The Learned Chief Justice starts by expanding the argument advanced by the
appellants that the extent of discretion available with the Governor is more than that
what is available with the President under the Constitution. He opines:]
In all the Articles which speak of powers and functions of the President, the
expressions used in relation thereto are ‘is satisfied’, ‘is of opinion’, ‘as he thinks fit’
and ‘if it appears to’. In the case of the Governor, the expressions used in respect of
his powers and functions are ‘is satisfied’, ‘if of opinion’ and ‘as he thinks fit’.
Article 163(1) states that there shall be a Council of Ministers with the Chief Minister
at the head to aid and advice the Governor in the exercise of his functions, except in
so far as he is by or under this Constitution, required to exercise his functions or any
of them in his discretion. Article 163(2) states that if any question arises whether any
matter is or is not a matter as respects which the Governor is by or under this
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. Extracting the words "in his discretion" in relation to exercise of functions,
the appellants contend that the Council of Ministers may aid and advise the Governor
in Executive functions but the Governor individually and personally in his discretion
will exercise the constitutional functions of appointment and removal of officers in
State Judicial Service and other State Services. It is noticeable that though in Article
74 it is stated that there shall be a Council of Ministers with the Prime Minister at the
head to aid and advise the President in the exercise of his functions, there is no
provision in Article 74 comparable to Article 163 that the aid and advice is except in
so far as he is required to exercise his functions or any of them in his discretion.
[Seeking to find an answer to this question as to why is the scope and ambit of the
Gubernatorial discretion more that the Presidential discretion, he locates the
distinction in the etymology of Article 163, as evident of the Constituent Assembly
Debates].
[He goes on to analyse the nuances of the Executive Power vested with the Union and
the States by the Constitution, and observes:]
The executive power of the Union is vested in the President under Article 53(1). The
executive power of the State is vested in the Governor under Article 154 (1). The
expression "Union" and "State" occur in Articles 53(1) and 154(1) respectively to
bring about the federal principles embodied in the Constitution. Any action taken in
the exercise of the executive power of the Union vested in the President under Article
53(1) is taken by the Government of India in the name of the President as will appear
in Article 77(1). Similarly, any action taken in the exercise of the executive power of
the State vested in the Governor under Article 154(1) is taken by the Government of
the State in the name of the Governor as will appear in Article 166(1). There are two
significant features in regard to the executive action taken in the name of the President
or in the name of the Governor. Neither the President nor the Governor may sue or be
sued for any executive action of the State. First, Article 300 States that the
Government of India may sue or be sued in the name of the Union and the Governor
may sue or be sued in the name of the State. Second, Article 361 states that
proceedings may be brought against the Government of India and the Government of
the State but not against the President or the Governor. Articles 300 and 361 indicate
that neither the President nor the Governor can be sued for executive actions of the
Government. The reason is that neither the President nor the Governor exercises the
executive functions individually or personally. Executive action taken in the name of
the President is the action of the Union. Executive action taken in the name of the
Governor is the executive action of the State.
Our Constitution embodies generally the Parliamentary or Cabinet system of

Government of the British model both for the Union and the States. Under this system
the, President is the Constitutional or formal head of the Union and he exercises his
powers and functions conferred on him by or under the Constitution on the aid and
advice of his Council of Ministers Article 103 is an exception to the aid and advice of
the Council of- Ministers because it specifically provides that the President acts only
according to the opinion of the Election Commission. This is when any question
arises as to whether a member of either House of Parliament has become subject to
any of the disqualifications mentioned in clause (1) of Article 102. Under the Cabinet
system of Government as embodied in our Constitution the Governor is the
constitutional or formal head of the State and be exercises all his powers and
functions conferred on him by or under the Constitution on the aid and advice of his
Council of Ministers save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. The executive power is
generally described as the residue which does not fall within the legislative or judicial
power. But executive power may also partake of legislative or judicial actions. […]
In all cases in which the President or the Governor exercises his functions conferred
on him by or under the Constitution with the aid and advice of his Council of
Ministers he does so by making rules for convenient transaction of the business of the
Government of India or the Government of the State respectively or by allocation
among his Ministers of the said business, in accordance with Article 77 (3) and 166(3)
respectively. Wherever the Constitution requires the satisfaction of President or
the Governor for the exercise of any power or function by the President or the
Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso
(c), 317, 352(1), 356 and 360, the satisfaction required by the Constitution is not
the personal satisfaction of the President or of the Governor but is the
satisfaction of the President or of the Governor in the Constitutional sense under
the Cabinet system of Government. […] It is the satisfaction of the Council of
Ministers on whose aid and advice the President or the Governor generally
exercises all his powers and functions. […]
[Referring to several landmark cases, he holds:]
The distinction made by this Court between the executive functioning of the Union
and the executive functions of the President does not lead to any conclusion that the
President is not the constitutional head of Government. Article 74(1) provides for the
Council of Ministers to aid and advise the President in the exercise of his functions.
Article 163(1) makes similar provision for a Council of Ministers to aid and advise
the Governor. Therefore, whether the functions exercised by the President are
functions of the Union or the functions of the President they have equally to be
exercised with the aid and advice of the Council of Ministers, and the same is
true of the functions of the Governor except those which he has to exercise in his
discretion.
[Thus, he concludes by reiterating:]
The President as well as the Governor is the Constitutional or formal head. The
President as well as the Governor exercises his powers and functions conferred on
him by or under the Constitution on the aid and advice of his Council of Ministers,
save in spheres where the Governor is required by or under the Constitution to
exercise his functions in his discretion. Wherever the Constitution requires the
satisfaction of the President or the Governor for the exercise by the President or
the Governor of any power or function, the satisfaction required by the
Constitution is not the personal satisfaction of the President or Governor but the
satisfaction of the President or Governor in the Constitutional sense in the
Cabinet system of Government, that is, satisfaction of his Council of Ministers on
whose aid and advice the President or the Governor generally exercise all his
powers and functions.
Per Krishna Iyer, J. (separate concurring opinion, for himself and Bhagwati, J.):
[The Learned Judge also agrees in substance with the reasonings of Ray, C.J. He
opines:]
[…] We are of the view that the President means, for all practical purposes, the
Minister or the Council of Ministers as the case may be, and his opinion,
satisfaction or decision is constitutionally secured when his Ministers arrive at
such opinion, satisfaction or decision.
[The Learned Judge, in addition to reiterating the primacy of the Council of Ministers
in the realm of Executive decision making, outlines a very limited set of
circumstances where the President can use his discretion. He holds:]
We declare the law of this branch of our Constitution to be that the President
and Governor, custodians of all executive and other powers under various
Articles, shall, by virtue of these provisions, exercise their formal constitutional
powers only upon and in accordance with the advice of their Ministers save in a
few well known exceptional situations. Without being dogmatic or exhaustive,
these situations relate to:
(a) the choice of Prime Minister (Chief Minister) restricted thought his choice is
by the paramount consideration that he should command majority in the House;
(b) the dismissal of a Government which has lost its majority in the House but
refuses to quit office;
(c) the dissolution of the House where an appeal to the country is necessitous,
although in this area the Head of State should avoid getting involved in politics
and must be advised by his Prime Minister (Chief Minister) who will eventually
take the responsibility for the step.
Comment: In this case, the Court once again makes it clear that the President and the
Governor are merely the formal heads of the Union and State Executive respectively.
They are bound to act in accordance with the aid and advise of the Council of
Ministers expect in certain very specific circumstances (for example, Krishna Iyer, J.,
lays down such situations for the operation of the personal discretion of the President)
where they are allowed to exercise their personal discretion.
On the Parliamentary System of Democracy and Collective Responsibility

Case: U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002 (Coram: Sikri, C.J.,
Mitter, Hegde, Grover, Jaganmohan Reddy, JJ.)
On the recommendation of the then Prime Minister Mrs. Indira Gandhi, The Lok
Sabha was prematurely dissolved by the President of India on 27th December 1970,
with a year to go for completion of its five years term. However, she was asked to
continue as the Caretaker Prime Minister till the next Lok Sabha got constituted after
the impending Elections. U.N.R. Rao, the appellant, had filed a writ petition in the
Madras High Court contending that a writ of quo warranto be issued to the
respondent, Mrs. Indira Gandhi, and it be declared that she has no constitutional
authority to the office of and to function as Prime Minister of India. Upon dismissal of
his petition, he approached the Supreme Court of India.
Per Sikri, C.J.:
In brief, the appellant contends that under the Constitution, as soon as the House of
the People is dissolved under Art. 85(2) of the Constitution, the Council of Ministers,
i.e., the Prime Minister and other Ministers, cease to hold office. According to him
this follows plainly from the wording of Art. 75(3), which provides that "the Council
of Ministers shall be collectively responsible to the House of the People". How can
the Council of Ministers be responsible to the House of the People when it has been
dissolved under Art. 85(2)? According to him, no void in the carrying out of
Government will be created because the President can exercise the Executive Power
of the Union either directly or through officers subordinate in accordance with the
Constitution as provided in Art. 53(1) of the Constitution.
[Referring to relevant precedents and constitutional provisions which have a bearing

on the interpretation of Article 75(3), he opines:]
The appellant urges that the House of People having been dissolved, this clause
cannot be complied with. According to him, it follows from the provisions of this
clause that it was contemplated that on the dissolution of the House of People the
Prime Minister and the other ministers must resign or be dismissed by the President
and the President must carry on the Government as best as he can with the aid of the
Services. As we have shown above, Article 74(1) is mandatory and, therefore. the
President cannot exercise the executive power without the aid and advice of the
Council of Ministers. We must then harmonize the provisions of Article
75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is
usually called "Responsible Government". In other words the Council of Ministers
must enjoy the confidence of the House of People. While the House of People is not
dissolved under Article 85(2)(b), Article 75(3) has full operation. But when it is
dissolved the Council of Ministers cannot naturally enjoy the confidence of the House
of People. Nobody has said that the Council of Ministers does not enjoy the
confidence of the House of People when it is prorogued. In the context, therefore,
this clause must be read as meaning that Article 75(3) only applies when the
House of People does not stand dissolved or prorogued. [...]
Comment: This case has an enormous significance not just for truly appreciating the
nature of the “Collective Responsibility” envisaged in the Constitution, but for a
greater appreciation of the Parliamentary Democracy operational in India as such. It
can be noted that the implication of this decision is that not for a single moment can
India be without an Executive Government headed by the Prime Minister, even if the
House is dissolved, and it is not possible for the Council of Minister to enjoy the
confidence of the people, expressed through the “collective responsibility” envisaged
in Article 75(3).
On ‘Pleasure of President’ and Appointment and Removal of Governors
Case: B.P. Singhal v. Union of India, (2010) 6 SCC 33 (Coram: Balakrishnan,

Kapadia, Sathasivam, Sudarshan Reddy, Raveendran, JJ.)
A Public Interest Litigation was filed before the Supreme Court on account of the
removal of the Governors in the states of Uttar Pradesh, Haryana, Gujarat and Goa on
July 2nd, 2004 by the President of India based on the advice of the Council of
Ministers, immediately after a new Government was sworn in at the Centre. A two
judge bench referred the matter to a Constitutional bench due to the question of public
importance regarding the interpretation of Article 156 being involved.
Per Raveendran, J.:
[The Learned Judge, while acknowledging the fact that the term of the Governor can
be limited as per the ‘Pleasure of the President’ and that such a ‘Doctrine of Pleasure’
is firmly embedded in the Indian Constitutional set-up, this doctrine cannot be
divorced of the requirement that this doctrine is invoked in a non-arbitrary fashion. He
opines:]
The doctrine of pleasure as originally envisaged in England was a prerogative power

which was unfettered. It meant that the holder of an office under pleasure could be
removed at any time, without notice, without assigning cause, and without there being
a need for any cause. But where rule of law prevails, there is nothing like unfettered
discretion or unaccountable action. The degree of need for reason may vary. The
degree of scrutiny during judicial review may vary. But the need for reason exists. As
a result when the Constitution of India provides that some offices will be held
during the pleasure of the President, without any express limitations or
restrictions, it should however necessarily be read as being subject to the
"fundamentals of constitutionalism". Therefore in a constitutional set up, when an
office is held during the pleasure of any Authority, and if no limitations or restrictions
are placed on the "at pleasure" doctrine, it means that the holder of the office can be
removed by the authority at whose pleasure he holds office, at any time, without
notice and without assigning any cause. The doctrine of pleasure, however, is not a
licence to act with unfettered discretion to act arbitrarily, whimsically, or
capriciously. It does not dispense with the need for a cause for withdrawal of the
pleasure. In other words, "at pleasure" doctrine enables the removal of a person
holding office at the pleasure of an Authority, summarily, without any obligation to
give any notice or hearing to the person removed, and without any obligation to
assign any reasons or disclose any cause for the removal, or withdrawal of pleasure.
The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the
Authority, but can only be for valid reasons.
[The Learned Judge refers to the integral role played by the Governor in the
constitutional set-up. He observes:]
It is [...] evident that a Governor has a dual role. The first is that of a constitutional
Head of the State, bound by the advice of his Council of Ministers. The second is to
function as a vital link between the Union Government and the State Government. In
certain special/emergent situations, he may also act as a special representative of the
Union Government. He is required to discharge the functions related to his different
roles harmoniously, assessing the scope and ambit of each role properly. He is not an
employee of the Union Government, nor the agent of the party in power nor
required to act under the dictates of political parties. There may be occasions
when he may have to be an impartial or neutral Umpire where the views of the Union
Government and State Governments are in conflict. His peculiar position arises from
the fact that the Indian Constitution is quasi-federal in character. [...]
In the early days of Indian democracy, the same political party was in power both at
the Centre and the States. The position has changed with passage of time. Now
different political parties, some national and some regional, are in power in the States.
Further one single party may not be in power either in the Centre or in the State.
Different parties with distinct ideologies may constitute a front, to form a
Government. On account of emergence of coalition politics, many regional parties
have started sharing power in the Centre. Many a time there may not even be a
common programme, manifesto or agenda among the parties sharing power. As a
result, the agenda or ideology of a political party in power in the State may not be in
sync with the agenda or ideology of the political parties in the ruling coalition at the
Centre, or may not be in sync with the agenda or ideology of some of the political
parties in the ruling coalition at the Centre, but may be in sync with some other
political parties forming part of the ruling coalition at the Centre. Further the
compulsions of coalition politics may require the parties sharing power, to frequently
change their policies and agendas. In such a scenario of myriad policies, ideologies,
agendas in the shifting sands of political coalitions, there is no question of the Union
Government having Governors who are in sync with its mandate and policies.
Governors are not expected or required to implement the policies of the government
or popular mandates. Their constitutional role is clearly defined and bears very
limited political overtones. We have already noted that the Governor is not the agent
or the employee of the Union Government. As the constitutional head of the State,
many a time he may be expressing views of the State Government, which may be
neither his own nor that of the Centre (for example, when he delivers the special
address under Article 176 of the Constitution). Reputed elder statesmen, able
administrators and eminent personalities, with maturity and experience are expected
to be appointed as Governors. While some of them may come from a political
background, once they are appointed as Governors, they owe their allegiance and
loyalty to the Constitution and not to any political party and are required to preserve,
protect and defend the Constitution (see the terms of oath or affirmation by the
Governor, under Article 159 of the Constitution). Like the President, Governors are
expected to be apolitical, discharging purely constitutional functions, irrespective
of their earlier political background. Governors cannot be politically active. We
therefore reject the contention of the respondents that Governors should be in
"sync" with the policies of the Union Government or should subscribe to the
ideology of the party in power at the Centre. As the Governor is neither
the employee nor the agent of the Union Government, we also reject the
contention that a Governor can be removed if the Union Government or party in
power loses `confidence' in him.
[On the question as to whether there can be a Judicial Review of the grounds behind
the withdrawal of the President’s “pleasure” leading to the removal of the Governor,
he observes:]
When a Governor holds office during the pleasure of the Government and the power
to remove at the pleasure of the President is not circumscribed by any conditions or
restrictions, it follows that the power is exercisable at any time, without assigning any
cause. However, there is a distinction between the need for a cause for the
removal, and the need to disclose the cause for removal. While the President
need not disclose or inform the cause for his removal to the Governor, it is
imperative that a cause must exist. If we do not proceed on that premise, it would
mean that the President on the advice of the Council of Ministers, may make any
order which may be manifestly arbitrary or whimsical or mala fide. Therefore,
while no cause or reason be disclosed or assigned for removal by exercise of such
prerogative power, some valid cause should exist for the removal. Therefore, while
we do not accept the contention that an order under Article 156 is not justiciable, we
accept the contention that no reason need be assigned and no cause need be shown
and no notice need be issued to the Governor before removing a Governor. [...]
[On the question as to whether despite Article 74(2) which bars the Court from
inquiring into the ‘Aid and Advice’ of the Council of Ministers, the Court can
nevertheless go into a judicial review of the issue of the Governor’s removal, he refers
to the S.R. Bommai case and opines:]
This Court has held [in S.R. Bommai] that Article 74(2) merely bars an inquiry into
the question whether any, and if so what, advice was tendered by the Council of
Ministers to the President but does not bar the scrutiny of the material on the basis of
which the President has made the order. This Court also held that while an order
issued in the name of the President could not be challenged on the ground that it was
contrary to the advice tendered by the Council of Ministers or was issued without
obtaining the advice from the Ministers, it does not bar the court from calling upon
the Union of India to disclose to the court the material on which the President has
formed the requisite satisfaction. The bar contained in Article 74(2) will not come
in the way of the court inquiring whether there was any material on the basis of
which such advice was given, whether such material was relevant for such advice
and whether the material was such that a reasonable man could have come to the
conclusion which was under challenge. Therefore, though the sufficiency of the
material could not be questioned, legitimacy of the inference drawn from such
material was open to judicial review.
The extent and depth of judicial review will depend upon and vary with reference to
the matter under review. [...] For example, judicial review is permissible in regard to
administrative action, legislations and constitutional amendments. But the extent or
scope of judicial review for one will be different from the scope of judicial review for
other. Mala fides may be a ground for judicial review of administrative action but is
not a ground for judicial review of legislations or constitutional amendments. For
withdrawal of pleasure in the case of a Minister or an Attorney General, loss of
confidence may be a relevant ground. The ideology of the Minister or Attorney
General being out of sync with the policies or ideologies of the Government may also
be a ground. On the other hand, for withdrawal of pleasure in the case of a
Governor, loss of confidence or the Governor's views being out of sync with that
the Union Government will not be grounds for withdrawal of the pleasure. The
reasons for withdrawal are wider in the case of Ministers and Attorney-General, when
compared to Governors. As a result, the judicial review of withdrawal of pleasure, is
limited in the case of a Governor whereas virtually nil in the case of a Minister or an
Attorney General.
Article 156(1) provides that a Governor shall hold office during the pleasure of the
President. Having regard to Article 74, the President is bound to act in accordance
with the advice of the Council of Ministers. Therefore, even though under Article
156(1) the removal is at the pleasure of the President, the exercise of such pleasure is
restricted by the requirement that it should be on the advice of the Council of
Ministers. Whether the removal of Governor is open to judicial review? What Article
156(1) dispenses with is the need to assign reasons or the need to give notice but
the need to act fairly and reasonably cannot be dispensed with by Article
156(1). The President in exercising power under Article 156(1) should act in a manner
which is not arbitrary, capricious or unreasonable. In the event of challenge of
withdrawal of the pleasure, the court will necessarily assume that it is for
compelling reasons. Consequently, where the aggrieved person is not able to
establish a prima facie instance of arbitrariness or mala fides, in his removal, the
court will refuse to interfere. However, where a prima facie case of arbitrariness
or mala fides is made out, the Court can require the Union Government to
produce records/materials to satisfy itself that the withdrawal of pleasure was
for good and compelling reasons. What will constitute good and compelling
reasons would depend upon the facts of the case. Having regard to the nature of
functions of the Governor in maintaining centre-state relations, and the flexibility
available to the Government in such matters, it is needless to say that there will be no
interference unless a very strong case is made out. The position, therefore, is that the
decision is open to judicial review but in a very limited extent.
Comment: In light of the sordid political realities in India, where the high office of
the Governor virtually becomes virtually an extension of the Central Government in
the States, this judgement does contain an unequivocal assertion that reminds us of the
prestige and position of the Governor’s Office, and definitely puts in place a safety
valve mechanism, albeit to a very limited extent, against the politicisation of the issue
pertaining to the appointment and removal of the Governors.
On Civil Servants and the ‘Doctrine of Pleasure’
Case: Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 (Coram:
Chandrachud, C.J., Tulzapurkar, Pathak, Madon, Thakkar, JJ.)
The Respondents were government servants who were dismissed, removed or

compulsorily retired from service by way of punishment by invoking provisions of the
2nd proviso to article 311(2) and rules under Art 309. This was challenged on the
grounds that it was against the Doctrine of Pleasure and the principles of natural
justice.
In this case, the Court made some conclusive determinations about the scope and
applicability of the Doctrine of Pleasure, insofar as it applies to Civil Servants.
Per Madon, J. (for himself and Chandrachud, C.J., Tulzapurkar, Pathak, JJ.):
[After giving a brief account of the evolution of the Indian Civil Services and the
genesis of Article 311 of the Constitution, the Learned Judge goes into an analysis of
the Doctrine of Pleasure. In doing so, he refers to the origin of the Doctrine in
England and in Continental Europe. Coming to India, he observed:]
In India, the pleasure doctrine has received constitutional sanction by being enacted
in Article 310(1). Unlike in the United Kingdom, in India it is not subject to any law
made by Parliament but is subject only to what is expressly provided by the
Constitution.
The pleasure doctrine relates to the tenure of a government servant. "Tenure" means
"manner, conditions or term of holding something" according to Webster's Third New
International Dictionary, and "terms of holding; title; authority" according to the
Oxford English Dictionary. It, therefore, means the period for which an incumbent of
office holds it. It is for this reason that the statement of law relating to the pleasure
doctrine in England is given in Halsbury's Laws of England, Fourth Edition, Volume
8, Para 1106, under the heading "Tenure of office".
The first time that a statute relating to the government of India provided that civil
servants hold office during His Majesty's pleasure was the Government of India Act
of 1919 in section 96B of that Act. The marginal note to section 96B did not,
however, refer to the tenure of civil servants but stated "The Civil Services of India".
This was because section 96B in addition to dealing with the tenure of civil servants
also dealt with matters relating to their recruitment, conditions of service, pay,
allowances, pensions, etc. The marginal note to section 240 of the Government of
India Act, 1935, however, was "Tenure of office of persons employed in civil
capacities in India". The marginal note to Article 310 of the Constitution also refers to
"tenure" and states "Tenure of office or persons serving the Union or a State". Thus, it
is the tenure of government servants which Article 310(1) makes subject to the
pleasure of the President or the Governor of a State, except as expressly provided by
the Constitution.
While it was vehemently contended on behalf of the government servants that the
pleasure doctrine is a relic of the feudal age - a part of the special prerogative of the
Crown - which was imposed upon India by an Imperial power and thus is an
anachronism in this democratic, socialist age and must, therefore, be confined within
the narrowest limits, it was submitted on behalf of the Union of India that this
doctrine was a matter of public policy, and it was in public interest and for public
good that the right to dismiss at pleasure a government servant who has made himself
unfit to continue in office, albeit subject to certain safeguards, should exist and be
exercisable in the Constitutional sense by the Crown in England and by the President
or the Governor of a State in India. It is not possible to accept the arguments advanced
on behalf of the government servants for all the authoritative judicial dicta are to the
contrary. [Referring to a plethora of cases on the subject, he observes:]
Ministers frame policies and legislatures enact laws and lay down the mode in which
such policies are to be carried out and the object of the legislation achieved. In many
cases, in a Welfare State such as ours, such policies and statutes are intended to bring
about socioeconomic reforms and the uplift of the poor and disadvantaged classes.
From the nature of things the task of efficiently and effectively implementing these
policies and enactments, however, rests with the civil services. The public is,
therefore; vitally interested in the efficiency and integrity of such services.
Government servants are after all paid from the public exchequer to which everyone
contributes either by way of direct or indirect taxes. Those who are paid by the public
and are charged with public and administration for public good must, therefore, in
their turn bring to the discharge of their duties a sense of responsibility. The
efficiency of public administration does not depend only upon the top echelons of
these services. It depends as much upon all the other members of such services, even
on those in the most subordinate posts. For instance, railways do not run because of
the members of the Railway Board or the General Managers of different railways or
the heads of different departments of the railway administration. They run also
because of engine-drivers, fireman, signalmen, booking clerks and those holding
hundred other similar posts. Similarly, it is not the administrative heads who alone
can set to the proper functioning of the post and telegraphs service. For a service to
run efficiently there must, therefore, be a collective sense of responsibility. But, for a
government servant to discharge his duties faithfully and conscientiously, he must
have a feeling of security of tenure. Under our Constitution this is provided for by the
Acts and rules made under Article 309 as also by the safeguards in respect of the
punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2)
of Article 311. It is, however, as much in public interest and for public good that
government servants who are inefficient, dishonest or corrupt or have become a
security risk should not continue in service and that the protection afforded to them by
the Acts and rules made under Article 309 and by Article 311 be not abused by them
to the detriment of public interest and public good. When a situation as envisaged in
one of the three clauses of the second proviso to clause (2) of Article 311 arises and
the relevant clause is properly applied and the disciplinary inquiry dispensed with, the
concerned government servant cannot be heard to complain that he is deprived of his
livelihood. The livelihood of an individual is a matter of great concern to him and
his family but his livelihood is a matter of his private interest and where such
livelihood is provided by the public exchequer and the taking away of such
livelihood is in the public interest and for public good, the former must yield to
the latter. These consequences follow not because the pleasure doctrine is a
special prerogative of the British Crown which has been inherited by India and
transposed into our Constitution adapted to suit the Constitutional set up of our
Republic but because public policy requires, public interest needs and public
good demands that there should be such a doctrine.
It is thus clear that the pleasure doctrine embodied in Article 310 (1), the
protection afforded to civil servants by clauses (1) and (2) of Article 311 and the
withdrawal of the protection under clause (2) of Article 311 by the second
proviso thereto are all provided in the Constitution on the ground of public
policy and in the public interest and are for public good.
[However, the Learned Judge hastens to add that the application of the doctrine
should be subject to safeguards laid down to prevent its abuse, like following the
principles of natural justice, etc. He also adds that this ‘Pleasure’ is to be construed to
be the ‘Pleasure’ of the Council of Ministers, and not the personal discretion of the
President or the Governor. Finally, he concludes:]
The conclusion which flows from the express language of the second proviso is
inevitable and there is no escape from it. It may appear harsh but, as mentioned
earlier, the second proviso has been inserted in the Constitution as a matter of public
policy and in public interest and for public good just as the pleasure doctrine and the
safeguards for a government servant provided in clause (1) and (2) of Article
311 have been. It is in public interest and for public good that government servant
who has been convicted of a grave and serious offence or one rendering him unfit to
continue in office should be summarily dismissed or removed from service instead of
being allowed to continue in it at public expense and to public detriment. It is equally
in public interest and for public good that where his offence is such that he should not
be permitted to continue to hold the same rank, that he should be reduced in rank.
Equally, where a public servant by himself or in concert with others has brought about
a situation in which it is not reasonably practicable to hold an inquiry and his conduct
is such as to justify his dismissal, removal or reduction in rank, both public interest
and public good demand that such penalty should forthwith and summarily be
imposed upon him; and similarly, where in the interest of the security of the State it is
not expedient to hold an inquiry, it is in the public interest and for public good that
where one of the three punishments of dismissal, removal or reduction in rank is
called for, it should be summarily imposed upon the concerned government servant. It
was argued that in a case falling under clause (b) or (c), a government servant ought
to be place under suspension until the situation improves or the danger to the security
of the State has passed, as the case may be, and it becomes possible to hold an
inquiry. This argument overlooks the fact that suspension involves the payment at
least of subsistence allowance and such allowance is paid at public expense, and that
neither public interest would be benefited nor public good served by placing such
government servant under suspension because it may take a considerable time for the
situation to improve or the danger to be over. Much as this may seem harsh and
oppressive to a government servant, this Court must not forget that the object
underlying the second proviso is public policy, public interest and public good and the
Court must, therefore, repel the temptation to be carried away by feelings of
commiseration and sympathy for those government servants who have been
dismissed, removed or reduced in rank by applying the second proviso. Sympathy
and commiseration cannot be allowed to outweigh considerations of public
policy, concern for public interest, regard for public good and the peremptory
dictate of a Constitutional prohibition.
[The Learned Judge goes on to uphold the impugned Government orders].
[Thakkar, J. passes a dissenting judgement, stating that the employees should at least
have been given an opportunity of being heard before the impugned orders were
passed].
Comment: This case quite appropriately defines the scope of the ‘Doctrine of
Pleasure’ insofar as it applies to the civil servants, the members of the Administrative
Executive. Subject to the safeguards as have been put in place by the Constitution, the
Government should have the option of imposing punitive measures on them if they
act in a manner that is antithetical to public interest. This is the real essence and
implication of the ‘Doctrine of Pleasure’.
On the Constitutional Position of the Prime Minister
Case: S.P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734 (Coram: Ahmadi, C.J.,
Manohar, J.)
The primary issue of contention was whether a person who is not a member of either
House of the Parliament be sworn in as the Prime Minister of India. According to the
petitioner, by swearing in Shri H.D. Deve Gowda, as Prime Minister of India, while
he was not a member of either House of Parliament was, under the Constitution, not
eligible and thus, the President of India, Dr. Shankar Dayal Sharma, the third
respondent, committed a grave and serious Constitutional error as his act was
violative of Articles 14, 21 and 75 of the Constitution and, therefore, void ab initio.
Per Ahmadi, C.J.:
[After referring to a catena of cases, each of which contradicted the petitioner’s

claims, the Learned Chief Justice observes:]
On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired

to permit a person who was not a member of either House of Parliament to be
appointed a Minister for a period of six consecutive months and if during the said
period he was not elected to either House of Parliament, he would cease to be a
Minister. This becomes clear if one were to read the debates of the Constituent
Assembly (the draft Articles were 62 and 144 for the present Articles 75 and 164).
Precisely on the ground that permitting such persons to be appointed Ministers at the
Union or State levels would "cut at the very root of democracy", an amendment was
moved to provide: "No person should be appointed a Minister unless at the time of his
appointment, he is elected member of the House:" which amendment was spurned by
Dr. Ambedkar in the following words:
"Now with regard to the first point, namely, that no person shall be entitled to
be appointed a Minister unless he is at the time of his appointment an elected
member of the House, I think it forgets to take into consideration certain
important matters which cannot be overlooked. First is this and it is perfectly
possible to imagine that a person who is otherwise competent to hold the post
of a Minister has been defeated in a constituency for 'some reason and which,
although it may be perfectly good, might have annoyed the constituency, and
he might have incurred the displeasure of that particular constituency. It is not
a reason why a member so competent as that should not be permitted to be
appointed a member of the Cabinet on the assumption that he shall be able to
get himself elected from the same constituency or from another constituency.
After all the privileges that he is permitted is a privilege that extends only to
six months. It does not confer a right on that individual to sit in the House
being elected at all. My second submission is this that the fact that a
nominated Minister is a member of the Cabinet does not either violate the
principle of collective responsibility nor does it violate the principle of
confidence because he is a member of the cabinet if he is prepared to accept
the policy of the Cabinet stands part of the Cabinet and resigns with the
Cabinet when he ceases to have the confidence of the House, his membership
of the Cabinet does not in any way cause any inconvenience or breach of the
fundamental principles on which parliamentary government is based.
Therefore, this qualification in my judgment is quite unnecessary."
At the end of the discussion, the Constituent Assembly rejected the proposed
amendment. Furthermore, as pointed out in the decision of this Court, such an
appointment does not militate against the democratic principles embodied in our
Constitution. With respect, we agree.
[The Learned Chief Justice then refers to the petitioner’s claim based on Conventions
followed in England that the Prime Minister is always a member of the the
Legislature, preferably the House of Commons. He also refers to the other argument
advanced by the petitioner that even if the Constitution is construed to permit a person
who is not a member of either House of Parliament to be appointed a Minister for six
months, there is nothing in Article 75(5) to suggest that he can be appointed the Prime
Minister of the country because the status of the Prime Minister is distinct from that
of a Minister and, therefore, it is essential that a person who occupies the high
position of a Prime Minister should be an elected representative of the people.
Rejecting these arguments, he opines:]
This submission overlooks the fact that the person who is appointed the Prime
Minister is chosen by the elected representatives of the people and can occupy the
position only if he enjoys the confidence of the majority of the elected representatives
in the Lok Sabha. Secondly, we must bear in mind the scheme of our Constitution and
if our constitution permits such appointment, that should put an end to the
controversy.
Now Article 75(1) envisages a Council of Ministers with the Prime Minister at the
head to aid and advise the President, and the latter is expected to act in accordance
with such advice but if he has any reservations he may require the Council of
Ministers to reconsider such advice. Thus, the President has to act in accordance with
the advice of the council of Ministers as a body and not go by the advice of any single
individual. Only a person who, the President thinks, commands the confidence of the
Lok Sabha would be appointed the Prime Minister who in turn would choose the other
Ministers. The Council of Ministers is made collectively responsible to the House of
the People. The form of the oath prescribed in the Third Schedule under Article
75(4) is the same for the Prime Minister as well as a Minister. In other words, the
Constitution does not draw any distinction between the Prime Minister and any
other Minister in this behalf. This is not to say that the Prime Minister does not
enjoy a special status; he does as the head of the Council of Ministers but the
responsibility of the Council of Ministers to the House of the people is collective.
Besides, the caption of article 75 as a whole is "other provisions as to Ministers". No
separate provision is to be found dealing with the appointment of the Prime Minister
as such. Therefore, even though the Prime Minister is appointed by the President after
he is chosen by such number of members of the House of the People as would ensure
that he has the confidence of the House and would be able to command the support of
the majority, and the Ministers are appointed on the advice of the Prime Minister, the
entire Council of Ministers is made collectively responsible to the House and that
ensures the smooth functioning of the democratic machinery. If any Minister does not
agree with the majority decision of the Council of Ministers, his option is to resign or
accept the majority decision. If he does not, the Prime Minister would drop him from
his cabinet and thus ensure collective responsibility. Therefore, even though a Prime
Minister is not a member of either House of Parliament, once he is appointed he
becomes answerable to the House and so also his Ministers and the principle of
collective responsibility governs the democratic process. Even if a person is not a
member of the House, if he has the support and confidence of the House, he can
be chosen to head the Council of Ministers without violating the norms of
democracy and the requirement of being accountable to the House would ensure
the smooth functioning of the democratic process. We, therefore, find it difficult to
subscribe to the petitioner's contention that if a person who is not a member of the
House is chosen as Prime Minister, national interest would be jeopardised or that we
would be running a great risk. The English convention that the Prime Minister should
be a member of either House, preferably House of Commons, is not our constitutional
scheme since our Constitution clearly permits a non-member to be appointed a Chief
Minister or a 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 normally asks the
person appointed to seek a vote of confidence of the House of the People within a few
days of his appointment. By parity of reasoning, if a person who is not a member of
the State Legislature can be appointed a Chief Minister of a State under Article 164
(4) for six months, a person who is not a member of either House of Parliament can be
appointed Prime Minister for the same duration. We must also bear in mind the fact
that conventions grow from longstanding accepted practice or by agreement in areas
where the law is silent and such a convention would not breach the law but fill the
gap. If we go by that principle, the practice in India has been just the opposite. In the
past, persons who were not elected to State Legislatures have become Chief Ministers
and those not elected to either House of Parliament have been appointed Prime
Ministers. We are, therefore, of the view that the British Convention to which the
petitioner has, referred is neither in tune with our constitutional scheme nor has it
been a recognised practice in our country.
Comment: This case not only holds that there is no constitutional impediment if a
non-member of either House of the Parliament is appointed as the Prime Minister, it
also makes very conclusive statements about the relative positions, powers and
responsibilities between the Prime Minister and the other Ministers, so far as
appointment, functioning and accountabilities are concerned.
On whether a Disqualified Legislator become a Minister
Case: B.R. Kapur v. State of Tamil Nadu, AIR 2001 SC 3435 (Coram: Pattnaik,
Bharucha, Sabharwal, Ruma Pal, Brijesh Kumar, JJ.)
The primary issue that arose for the consideration of the Court was whether a non
elected member, whose nomination for contesting the election to the Legislative
Assembly stood rejected, and that order of rejection became final, not being assailed,
could still be appointed as the Chief Minister or the Minister under Article 164 of the
Constitution, merely because the largest number of elected members to the Legislative
Assembly elects such person to be their leader.
In this case, Ms. Jayalalitha, who was, by virtue of the Representation of People Act,
1951, deemed as disqualified to contest the elections owing to her conviction under
the Prevention of Corruption Act, was elected as the Leader of the Legislative Party
of her party, the AIADMK, after they came to power after a landslide victory in the
Tamil Nadu Assembly elections. The question that the Court had to answer was
whether notwithstanding her conviction, she could still be appointed as the Chief
Minister at least for a period of six months.
Per Bharucha, J. (for himself, Sabharwal, Ruma Pal, JJ.):
To answer the question before us, three sub-Articles of Article 164 need, in our view,
to be read together, namely, sub-Articles (1),(2) and (4). By reason of sub-Article (1),
the Governor is empowered to appoint the Chief Minister; the Governor is also
empowered to appoint the other Ministers, but, in this regard, he must act on the
advice of the Chief Minister. Sub-Article (2) provides, as is imperative in a
representative democracy, that the Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State. The political executive, namely,
the Council of Ministers, is thus, through the Legislative Assembly, made
representative of and accountable to the people of the State who have elected the
Legislative Assembly. There is necessarily implicit in these provisions the
requirement that a Minister must be a member of the Legislative Assembly and thus
representative of and accountable to the people of the State. It is sub-Article (4) which
makes the appointment of a person other than a member of the Legislature of the State
as a Minister permissible, but it stipulates that a Minister who for any period of six
consecutive months is not a member of the Legislature of the State shall at the
expiration of that period cease to be a Minister. Necessarily implicit in sub-Article
(4) read with sub- Articles (1) and (2) is the requirement that a Minister who is not a
member of the legislature must seek election to the legislature and, in the event of his
failing to secure a seat in the legislature within six months, he must cease to be a
Minister. The requirement of sub- Article (4) being such, it follows as the night the
day that a person who is appointed a Minister though he is not a member of the
legislature shall be one who can stand for election to the legislature and satisfy the
requirement of sub-Article (4). In other words, he must be one who satisfies the
qualifications for membership of the legislature contained in the Constitution
(Article 173) and is not disqualified from seeking that membership by reason of
any of the provisions therein (Article 191) on the date of his appointment.
The provision of sub-Article (4) of Article 164 is meant to provide for a situation
where, due to political exigencies or to avail of the services of an expert in some field,
it is requisite to induct into the Council of Ministers a person who is not then in the
legislature. That he is not in the legislature is not made an impassable barrier. To that
extent we agree with [the Counsel for the State] Mr. Venugopal, but we cannot accept
his submission that sub-Article (4) must be so read as to permit the induction into the
Council of Ministers of short term Ministers whose term would not extend beyond six
months and who, therefore, were not required to have the qualifications and be free of
the disqualifications contained in Articles 173 and 191 respectively. What sub-
Article (4) does is to give a non-legislator appointed Minister six months to
become a member of the legislature. Necessarily, therefore, that non-legislator
must be one who, when he is appointed, is not debarred from obtaining
membership of the legislature : he must be one who is qualified to stand for the
legislature and is not disqualified to do so. Sub-Article (4) is not intended for the
induction into the Council of Ministers of someone for six months or less so that it is
of no consequence that he is ineligible to stand for the legislature.
It would be unreasonable and anomalous to conclude that a Minister who is a

member of the legislature is required to meet the constitutional standards of
qualification and disqualification but that a Minister who is not a member of the
legislature need not. Logically, the standards expected of a Minister who is not a
member should be the same as, if not greater than, those required of a member.
[...]
We hold, therefore, that a non-legislator can be made Chief Minister or Minister

under Article 164 only if he has the qualifications for membership of the
legislature prescribed by Article 173 and is not disqualified from the
membership thereof by reason of the disqualifications set out in Article 191.
[Another interesting issue which arose in course of the arguments in this case was
whether the Governor was bound in law to appoint as Chief Minister whoever was
nominated by the majority party, notwithstanding the fact that such person was
ineligible to be sworn in. To this contention, the Learned Judge replied:]
But submissions were made by learned counsel for the respondents in respect of the
Governors powers under Article 164 which call for comment. The submissions were
that the Governor, exercising powers under Article 164(1) read with (4), was obliged
to appoint as Chief Minister whosoever the majority party in the legislature
nominated, regardless of whether or not the person nominated was qualified to be a
member of the legislature under Article 173 or was disqualified in that behalf
under Article 191, and the only manner in which a Chief Minister who was not
qualified or who was disqualified could be removed was by a vote of no- confidence
in the legislature or by the electorate at the next elections. To a specific query, learned
counsel for the respondents submitted that the Governor was so obliged even when
the person recommended was, to the Governors knowledge, a non-citizen, under-age,
a lunatic or an undischarged insolvent, and the only way in which a non-citizen or
under-age or lunatic or insolvent Chief Minister could be removed was by a vote of
no-confidence in the legislature or at the next election.
The nomination to appoint a person who is a non-citizen or under-age or a lunatic or

an insolvent as Chief Minister having been made by the majority party in the
legislature, it is hardly realistic to expect the legislature to pass a no-confidence
motion against the Chief Minister; and the election would ordinarily come after the
Chief Minister had finished his term.
To accept learned counsel’s submission is to invite disaster. As an example, the

majority party in the legislature could recommend the appointment of a citizen of a
foreign country, who would not be a member of the legislature and who would not be
qualified to be a member thereof under Article 173, as Chief Minister under Article
164(1) read with (4) to the Governor; and the Governor would be obliged to comply;
the legislature would be unable to pass a no- confidence motion against the foreigner
Chief Minister because the majority party would oppose it; and the foreigner Chief
Minister would be ensconced in office until the next election. Such a dangerous such
an absurd interpretation of Article 164 has to be rejected out of hand. The
Constitution prevails over the will of the people as expressed through the
majority party. The will of the people as expressed through the majority party
prevails only if it is in accord with the Constitution. The Governor is a
functionary under the Constitution and is sworn to preserve, protect and defend
the Constitution and the laws (Article 159). The Governor cannot, in the exercise
of his discretion or otherwise, do anything that is contrary to the Constitution
and the laws. It is another thing that by reason of the protection the Governor enjoys
under Article 361, the exercise of the Governors discretion cannot be questioned. We
are in no doubt at all that if the Governor is asked by the majority party in the
legislature to appoint as Chief Minister a person who is not qualified to be a
member of the legislature or who is disqualified to be such, the Governor must,
having due regard to the Constitution and the laws, to which he is subject,
decline, and the exercise of discretion by him in this regard cannot be called in
question.
If perchance, for whatever reason, the Governor does appoint as Chief Minister a
person who is not qualified to be a member of the legislature or who is disqualified to
be such, the appointment is contrary to the provisions of Article 164 of the
Constitution, as we have interpreted it, and the authority of the appointee to hold the
appointment can be challenged in quo-warranto proceedings. That the Governor has
made the appointment does not give the appointee any higher right to hold the
appointment. If the appointment is contrary to constitutional provisions it will be
struck down. The submission to the contrary unsupported by any authority must be
rejected.
Per Brijesh Kumar, J. (Separate concurring opinion):
[The learned Judge concurs to all the points put forward by Bharucha, J., and adds:]
In the scheme of Constitutional provisions the Governor is to act with the aid and
advise of the Council of Ministers headed by the Chief Minister. He is bound to act
accordingly. The other functions which the Governor performs in which aid and
advice of the Council of Ministers is not necessary, he acts in his own discretion. He
is not bound by decision/advice of any other agency. It is no doubt true that even in
the written Constitution it is not possible to provide each and every detail. Practices
and conventions do develop for certain matters. This is how democracy becomes
workable. It is also true that the choice of the majority party regarding its leader for
appointment as Chief Minister is normally accepted, and rightly. But the contention
that in all eventualities whatsoever the Governor is bound by the decision of the
majority party is not a correct proposition. The Governor cannot be totally
deprived of element of discretion in performance of duties of his office, if ever
any such exigency may so demand its exercise. The argument about
implementing the will of the people in the context indicated above is
misconceived and misplaced.
Per Pattnaik, J. (Separate concurring opinion):
It is no doubt true, that Articles 164(1) and 164(4) do not provide any qualification or
disqualification, for being appointed as a Chief Minister or a Minister,
whereas, Article 173 prescribes the qualification for a person to be chosen to fill a
seat in the Legislature of a State. Article 191 provides the disqualification for a person
for being chosen as or being a member of the Legislative Assembly or Legislative
Council of a State. [...]
[Referring to the arguments advanced by Mr. Venugopal, the Counsel representing

the Respondent-State, where he had argued that since people, the real sovereigns in
the Indian parliamentary democracy, had chosen Ms. Jayalalitha as their leader, the
Governor should not place impediments on her way, he responds:]
In a Parliamentary system of government, when political parties fight elections to the

legislative assembly or to the Parliament for being chosen as a member after results
are declared, it would be the duty of the President in case of Parliament and the
Governor in case of Legislative Assembly of the State, to appoint the Prime Minister
or the Chief Minister, as the case may be. When the President appoints the Prime
Minister under Article 75 or the Governor appoints a Chief Minister under Article
164, the question that weighs with the President or the Governor is, who will be able
to provide a stable government.
Necessarily, therefore, it is the will of the majority party that should ordinarily prevail
and it is assumed that the elected members belonging to a majority political party
would elect one amongst them to be their leader. Constitution, however does not
prevent the elected members belonging to a political party commanding the majority
of seats in the legislative assembly or the Parliament to elect a person who never
contested for being chosen as a member or a person who though contested, got
defeated in the election for one reason or the other and it is in such a situation that
person on being elected as a leader of the political party commanding the majority in
the House, could be appointed as the Prime Minister or the Chief minister. But the
constitution certainly does not postulate such elected representatives of the
people belonging to a political party commanding a majority in the Parliament
or the Assembly to elect a person as their leader so as to be called by the
President or the Governor to head the government, who does not possess the
qualification for being chosen, to fill a seat in the Parliament or in the legislative
Assembly, as contained in Articles 84 and 173 respectively of the Constitution or
who is disqualified for being chosen as or for being a member of the House of
Parliament or the legislative Assembly, as stipulated under Articles 102 and 191
of the Constitution respectively. At any rate, even if a person is elected as the leader
by the elected members of the legislative Assembly, commanding a majority of seats
in the Assembly and such person either does not possess the qualification enumerated
under Article 173 or incurs disqualification for being chosen as, or for being a
member of the legislative Assembly, enumerated under Article 191, then the
Governor would not be bound to respect that will of the elected members of the
political party, commanding the majority in the House, so as to appoint that person as
the Chief Minister under Article 164(1) of the Constitution. When Article
164(1) itself confers the discretion on the Governor to appoint a Chief Minister at his
pleasure and when the Governor has taken oath under Article 159 of the Constitution
to preserve, protect and defend the Constitution and the law and shall devote himself
to the service and for the well-being of the people, it would be against such oath, if
such a person who does not possess the qualification of being chosen as a member or
has incurred disqualification for being chosen as a member is appointed as a Chief
Minister, merely because Article 164 does not provide any qualification or
disqualification for being appointed as a Chief Minister or Minister. It is indeed
axiomatic that the necessary qualification in Article 173 and the disqualification
in Article 191 proprio vigore applies to a person for being appointed as the Chief
Minister or a Minister inasmuch as in a Parliamentary system of government, a
person is required to be chosen as a member of the Legislative Assembly by the
electorate of a constituency and then would be entitled to be appointed as the
Chief Minister or a Minister on the advice of the Chief Minister. Non-prescribing
any qualification or disqualification under Article 164 for being chosen as the Chief
Minister or Minister would only enable the Governor to appoint a person as the Chief
Minister or Minister for a limited period of six months, as contained in Article
164(4) of the Constitution, only if such person possesses the qualification for being
chosen as a member of the legislative Assembly, as required under Article 173 and is
not otherwise disqualified on account of any of the disqualifications mentioned
in Article 191. Any other interpretation by way of conferring an unfettered
discretion on the Governor or conferring an unfettered right on the elected
members of a political party commanding a majority in the legislative Assembly
to elect a person who does not possess the qualifications, enumerated
under Article 173 or who incurs the disqualifications enumerated in Article
191 would be subversive of the constitution and would be repugnant to the
theory of good governance and would be contrary to the constitution itself, which
constitution has been adopted, enacted and given to the people of India by the
people of India.
Comment: The Learned Judges in this case make it clear that no person who is not
qualified to contest the elections can be sworn in as a Minister. In arriving at this
conclusion, the Bench, and more specifically, the majority speaking through Bharucha
J., makes it clear that even if the will of the people represented through the majority
party, desires such a person to be made a Minister, the Constitutional and Legal
impediments would have to be adhered to by the Governor, and to this extent, he
should use his discretionary powers provided by the Constitution to prevent such
eventualities.
In fact, after this judgement was delivered, the Constitution (Ninety First)
Amendment Act, 2003 has incorporated safeguards into Articles 75 and 164 to ensure
that such a situation does not arise in the future.
On Pardoning Power of the Executive

Case: Kehar Singh v. State (Delhi Administration), AIR 1989 SC 653 (Coram:
Pathak, C.J., Venkataramiah, Misra, Venkatachalliah, Oza, JJ.)
This famous case involves the plea for Presidential Pardon of the assassins of Mrs.
Indira Gandhi. The Court in this case was to look into whether it can judicially review
act of presidential pardon granted under Article 72 of the Constitution.
Per Pathak, C.J.:
The first question is whether there is justification for the view that when exercising
his powers under Art. 72 the President is precluded from entering into the merits of a
case decided finally by this Court. [...]
[To answer this question, the Learned Chief Justice decides to look into the very
justification behind having a provision like Article 72 in the Constitution. He
observes:]
To any civilised society, there can be no attributes more important than the life and
personal liberty of its members. That is evident from the paramount position given by
the Courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental
ascendancy over all other attributes of the political and social order, and consequently,
the Legislature, the Executive and the Judiciary are more sensitive to them than to the
other attributes of daily existence. The deprivation of personal liberty and the threat of
the deprivation of life by the action of the State is in most civilised societies regarded
seriously and recourse, either under express constitutional provision or through
legislative enactment, is provided to the judicial organ. But, the fallibility of human
judgment being undeniable even in the most trained mind, a mind resourced by a
harvest of experience, it has been considered appropriate that in the matter of life and
personal liberty, the protection should be extended by entrusting power further to
some high authority to scrutinise the validity of the threatened denial of life or the
threatened or continued denial of personal liberty. The power so entrusted is a power
belonging to the people and reposed in the highest dignitary of the State. [Referring to
instances from England and the United States, he holds:] The power to pardon is a
part of the constitutional scheme, and we have no doubt, in our mind, that it
should be so treated also in the Indian Republic. It has been reposed by the
people through the Constitution in the Head of the State, and enjoys high status.
It is a constitutional responsibility of great significance, to be exercised when
occasion arises in accordance with the discretion contemplated by the context.
[...]
We are of the view that it is open to the President in the exercise of the power
vested in him by Art. 72 of the Constitution to scrutinise the evidence on the
record of the criminal case and come to a different conclusion from that
recorded by the court in regard to the guilt of, and sentence imposed on, the
accused. In doing so, the President does not amend or modify or supersede the
judicial record. The judicial record remains intact, and undisturbed. The president acts
in a wholly different plane from that in which the Court acted. He acts under a
constitutional power, the nature of which is entirely different from the judicial
power and cannot be regarded as an extension of it. And this is so,
notwithstanding that the practical effect of the Presidential act is to remove the stigma
of guilt from the accused or to remit the sentence imposed on him. [...]
The legal effect of a pardon is wholly different from a judicial supersession of the
original sentence. It is the nature of the power which is determinative. [...]
It is apparent that the power under Art. 72 entitles the President to examine the
record of evidence of the criminal case and to determine for himself whether the
case is one deserving the grant of the relief falling within that power. We are of
opinion that the President is entitled to go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given
to it by this Court.
Comment: The judgement makes it clear that the President can re-investigate into the
evidence and all other aspects that informed the judicial decision, since Article 72
deals with a Right as important and sacrosanct as the Right to Life and Personal
Liberty, and there should be absolutely no fallibility of any kind, even such fallibility
be attributable to the Supreme Court of India, leading to its ultimate denial. However,
the Learned Chief Justice refuses to accept the contention that the President has to
provide an oral hearing before deciding on whether to accept or reject the plea for
exercise of pardon.
On Judicial Review of the Pardoning Power of the Executive
Case: Epuru Sudhakar v. Govt. of Andhra Pradesh, AIR 2006 SC 3385 (Coram:
Kapadia, Pasayat, JJ.)
This case involves the invocation of the pardoning powers by the Governor of Andhra
Pradesh under Article 161 of the Constitution, and granting remission to a murder
convict.
The writ petition inter alia alleges that the grant of remission (described in the writ
petition as grant of pardon) was illegal, relevant materials were not placed before the
Governor, and that without application of mind, the impugned order of remission was
passed. It was also argued that the recommendations made for grant of remission were
based on irrelevant and extraneous materials.
Per Kapadia, J.:
[The Learned Judge goes into the constitutional basis of the pardoning power of the
Executive, and observes:]
Pardons, reprieves and remissions are manifestation of the exercise of

prerogative power. These are not acts of grace. They are a part of Constitutional
scheme. When a pardon is granted, it is the determination of the ultimate authority
that public welfare will be better served by inflicting less than what the judgment has
fixed.
The power to grant pardons and reprieves was traditionally a Royal prerogative and
was regarded as an absolute power. At the same time, even in the earlier days, there
was a general rule that if the King is deceived, the pardon is void, therefore, any
separation of truth or suggestion of falsehood vitiated the pardon. Over the years, the
manifestation of this power got diluted.
The power to grant pardons and reprieves in India is vested in the President and the
Governor of a State by virtue of Articles 72 and 161 of the Constitution respectively.
Exercise of Executive clemency is a matter of discretion and yet subject to

certain standards. It is not a matter of privilege. It is a matter of performance of
official duty. It is vested in the President or the Governor, as the case may be, not
for the benefit of the convict only, but for the welfare of the people who may
insist on the performance of the duty. This discretion, therefore, has to be
exercised on public consideration alone. The President and the Governor are the
sole judges of the sufficiency of facts and of the appropriating of granting the pardons
and reprieves. However, this power is an enumerated power in the Constitution and its
limitations, if any, must be found in the Constitution itself. Therefore, the principle
of Exclusive Cognizance would not apply when and if the decision impugned is in
derogation of a Constitutional provision. This is the basic working test to be
applied while granting pardons, reprieves, remissions and commutation.
Granting of pardon is in no sense an overturning of a judgment of conviction,

but rather it is an Executive action that mitigates or set aside the punishment for
a crime. It eliminates the effect of conviction without addressing the defendant’s
guilt or innocence. The controlling factor in determining whether the exercise of
prerogative power is subject to judicial review is not its source but its subject
matter. It can no longer be said that prerogative power is ipso facto immune from
judicial review. An undue exercise of this power is to be deplored. Considerations of
religion, caste or political loyalty are irrelevant and fraught with discrimination. These
are prohibited grounds. Rule of Law is the basis for evaluation of all decisions. The
supreme quality of the Rule of Law is fairness and legal certainty. The principle of
legality occupies a central plan in the Rule of Law. Every prerogative has to be the
subject to the Rule of Law. That rule cannot be compromised on the grounds of
political expediency. To go by such considerations would be subversive of the
fundamental principles of the Rule of Law and it would amount to setting a dangerous
precedent. The Rule of Law principle comprises a requirement of "Government
according to law". The ethos of "Government according to law" requires the
prerogative to be exercised in a manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive clemency is not only for
the benefit of the convict, but while exercising such a power the President or the
Governor, as the case may be, has to keep in mind the effect of his decision on
the family of the victims, the society as a whole and the precedent it sets for the
future.
The power under Article 72 as also under Article 161 of the Constitution is of the
widest amplitude and envisages myriad kinds and categories of cases with facts and
situations varying from case to case. The exercise of power depends upon the facts
and circumstances of each case and the necessity or justification for exercise of that
power has to be judged from case to case. It is important to bear in mind that every
aspect of the exercise of the power under Article 72 as also under Article 161 does not
fall in the judicial domain. In certain cases, a particular aspect may not be justiciable.
However, even in such cases there has to exist requisite material on the basis of which
the power is exercised under Article 72 or under Article 161 of the Constitution, as
the case may be. In the circumstances, one cannot draw the guidelines for regulating
the exercise of the power.
As stated above, exercise or non-exercise of the power of pardon by the President or

the Governor is not immune from judicial review. Though, the circumstances and the
criteria to guide exercise of this power may be infinite, one principle is definite and
admits of no doubt, namely, that the impugned decision must indicate exercise of the
power by application of manageable standards and in such cases courts will not
interfere in its supervisory jurisdiction. By manageable standards we mean standards
expected in functioning democracy. A pardon obtained by fraud or granted by
mistake or granted for improper reasons would invite judicial review. The
prerogative power is the flexible power and its exercise can and should be adapted to
meet the circumstances of the particular case. The Constitutional justification for
judicial review, and the vindication of the Rule of Law remain constant in all areas,
but the mechanism for giving effect to that justification varies.
In conclusion, it may be stated that, there is a clear symmetry between the

Constitutional rationale for review of statutory and prerogative power. In each case,
the courts have to ensure that the authority is used in a manner which is consistent
with the Rule of Law, which is the fundamental principle of good administration. In
each case, the Rule of Law should be the overarching constitutional justification for
judicial review. The exercise of prerogative power cannot be placed in straight jacket
formulae and the perceptions regarding the extent and amplitude of this power are
bound to vary. However, when the impugned decision does not indicate any data or
manageable standards, the decision amount to derogation of an important
Constitutional principle of Rule of Law.
Per Pasayat, J.:
[The Learned Judge, after looking at the comparative constitutional jurisprudence on

the issue of the pardoning power of the Executive, and a plethora of Indian cases on
the subject, holds:]
[...] The position [...] is undeniable that judicial review of the order of the President
or the Governor under Article 72 or Article 161, as the case may be, is available
and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant
considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
[Applying these principles to the facts of the instant case, the Learned Judge held:]
When the principles of law as noted above are considered in the factual background it
is clear that the irrelevant and extraneous materials entered into the decision making
process, thereby vitiating it.
The order granting remission which is impugned in the petition is clearly

unsustainable and is set aside.
Comment: In this case, both the Learned Judges unequivocally assert that the
exercise of the pardoning power of the Executive are not immune from Judicial
Review. In fact, Pasayat, J. goes to the extent of outlining the specific grounds which,
if they are found to have tainted the Executive decision making, can immediately lead
to the pardoning act being scrutinised by the Judiciary. In this case for example, the
fact that the pardon was based on extraneous and irrelevant circumstances meant that
the Court set aside the act of pardon exercised by the Governor.
On the Legislative Powers of the Executive
Case: A.K. Roy v. Union of India, AIR 1982 SC 710 (Coram: Chandrachud, C.J.,
Bhagwati, Gupta, Tulzapurkar, Desai, JJ.)
This case involves the constitutionality of the National Security Ordinance, 1980,
later turned into an Act. However, we shall not be discussing on that issue here. For
the purposes of this book, we shall specifically focus on a primary issue for
adjudication in this case – whether an ordinance can be called ‘law’?
Per Chandrachud, C.J. (for himself and Desai, JJ.):
[After referring to the evolution of the power to promulgate ordinances, starting from
the Government of India Act, 1935 to the present Articles 123 and 213, the Learned
Chief Justice opines:]
As we have said earlier while setting out the petitioner’s case, the thrust of his
argument is that the power to issue an ordinance is an executive power, not a
legislative power, and consequently, is not law. In view of the clear and specific
provisions of the Constitution bearing upon this question, it is quite impossible to
accept this argument. The heading of Chapter III of Part V is 'Legislative Powers of
the President". Clause (2) of Article 123 provides that an ordinance promulgated
under Article 123 "shall have the same force and effect as an Act of Parliament". The
only obligation on the Government is to lay the ordinance before both Houses of
Parliament and the only distinction which the Constitution makes between a law made
by the Parliament and an ordinance issued by the President is that whereas the life of a
law made by the Parliament would depend upon the terms of that law, an ordinance,
by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six
weeks from the reassembly of Parliament, unless resolutions disapproving it are
passed by both Houses before the expiration of that period. Article 13 (2) provides
that the State shall not make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of this provision shall, to the
extent of the contravention, be void. Clause (3) of Article 13 provides that in Article
13, "law" includes, inter alia, an ordinance, unless the context otherwise requires. In
view of the fact that the context does not otherwise so require, it must follow from the
combined operation of clauses (2) and (3) of Article 13 that an ordinance issued by
the President under Article 123, which is equated by clause (2) of that article with an
Act of Parliament, is subject to the same constraints and limitations as the latter.
Therefore, whether the legislation is Parliamentary or Presidential, that is to say,
whether it is a law made by the Parliament or an ordinance issued by the
President, the limitation on the power is that the fundamental rights conferred
by part III cannot be taken away or abridged in the exercise of that power. An
ordinance, like a law made by the Parliament, is void to the extent of
contravention of that limitation.
[He also refers to Interpretation clause in Article 367(2) which equates ordinances
with laws, to further substantiate his assertion:]
It is clear from this provision, if indeed there was any doubt about the true position,
that the Constitution makes no distinction in principle between a law made by the
legislature and an ordinance issued by the President. Both, equally, are products
of the exercise of legislative power and, therefore, both are equally subject to the
limitations which the Constitution has placed upon that power.
[On the justification for vesting legislative powers to the Executive, he opines:]
It may sound strange at first blush that the executive should possess legislative
powers, but a careful look at our Constitution will show that the scheme adopted by it
envisages the exercise of legislative powers by the executive in stated circumstances.
An ordinance can be issued by the President provided that both Houses of the
Parliament are not in session and the President is satisfied that circumstances exist
which render it necessary for him to take immediate action. An ordinance which
satisfies these pre-conditions has the same force and effect as an Act of
Parliament. Article 356 empowers the President to issue a proclamation in case of
failure of constitutional machinery in the States. [...]
It is [...] clear that the Constituent Assembly was of the view that the President's
power to legislate by issuing an ordinance is as necessary for the peace and good
government of the country as the Parliament's power to legislate by passing laws. The
mechanics of the President's legislative power was devised evidently in order to take
care of urgent situations which cannot brook delay. The Parliamentary process of
legislation is comparatively tardy and can conceivably be time-consuming. It is true
that it is not easy to accept with equanimity the preposition that the executive can
indulge in legislative activity but the Constitution is what it says and not what one
would like it to be. The Constituent Assembly indubitably thought, despite the strong
and adverse impact which the Governor-General's ordinance-making power had
produced on the Indian Community in the pre-independence era, that it was necessary
to equip the president with legislative powers in urgent situations. After all, the
Constitution makers had to take into account life's realities. [...] The Constituent
Assembly therefore conferred upon the executive the power to legislate, not of course
intending that the said power should be used recklessly or by imagining a state of
affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be
used mala fide in order to prevent the people's elected representatives from passing or
rejecting a Bill after a free and open discussion, which is of the essence of democratic
process. Having conferred upon the executive the power to legislate by ordinances, if
the circumstances were such as to make the exercise of that power necessary, the
Constituent Assembly subjected that power to the self-same restraints to which a law
passed by the legislature is subject. That is the compromise which they made between
the powers of Government and the liberties of the people. Therefore, in face of the
provisions to which we have already referred, it seems to us impossible to accept [the
Counsel for the Petitioner’s] contention that an ordinance made by the President is an
executive and not a legislative act. An ordinance issued by the President or the
Governor is as much law as an Act passed by the Parliament and is, fortunately and
unquestionably, subject to the same inhibitions. In those inhibitions, lies the safety of
the people. [...]
[Similarly, he also rejects the argument that for the purpose of determining the
‘procedure established by law’ in Article 21, the word ‘law’ does not include
ordinances].
[On the question of justiciability of the ordinance in terms of the circumstances that
led to its promulgation, he does not deny the availability of such power with the
Court. In fact, he refuses to accept the ‘political question’ argument advanced by the
Attorney General. However, considering the fact that in the instant case, the ordinance
had already been ratified as an Act, and that there was not enough evidence placed
before it by the petitioner such that such judicial review could be exercised].
Per Gupta, J. (dissenting):
The National Security ordinance, 1980 has been challenged on a number of grounds,
one of which is that the life and liberty of person cannot be taken away by an
ordinance because it is not 'law' within the meaning of article 21. Normally it is the
legislature that has the power to make laws. [...]
To show that there is no difference between a law passed by Parliament and an

ordinance promulgated by the President under article 123 reliance was placed on
behalf of the Union of India on clause (2) of the article which says that an ordinance
shall have the same force and effect as an Act of Parliament. It was further pointed
out that chapter III of part V of the Constitution which includes article 123 is headed
"Legislative Powers of the President." Reference was made to article 213 which
concerns the power of the Governor to promulgate ordinances: article 213 is in
chapter IV of part VI of the Constitution which hears a similar description:
Legislative Power of the Governor". From these provisions it was contended that the
President in promulgating an ordinance under article 123 exercises his legislative
power and therefore an ordinance must be regarded as 'law' within the meaning
of article 21. But the nature of the power has to be gathered from the provisions
of article 123 and not merely from the heading of the chapter. It is obvious that when
something is said to have the force and effect of an Act of Parliament, that is because
it is not really an Act of Parliament. Article 123 (2) does say that an Act of Parliament
to make the two even fictionally identical. The significance of the distinction will be
clear by a reference to articles 356 and 357 which are in part XVIII of the
Constitution that contains the emergency provisions. [Referring to Articles 356 and
357, he observes:]
It will appear that whereas an ordinance issued under article 123 has the same force
and effect as an Act of Parliament, under article 357(1) (a) Parliament can confer on
the President the power of the legislature of the State to make laws. Thus, where the
President is required to make laws, the Constitution has provided for it. The
difference in the nature of the power exercised by the President under article 123 and
under article 357 is clear and cannot be ignored. [...] A law made under article
357 continues in force until altered, repealed or amended by a competent legislature
or authority; an ordinance promulgated under article 123 ceases to operate at the
expiration of six weeks from the reassembly of Parliament at the latest.
[On the interpretation of ‘ordinances’ as ‘laws’ in Article 367, he opines:]
Any reference in the Constitution to Acts of Parliament has to be construed as

including a reference to an ordinance made by the President as article 367
(2) provides because an ordinance has been given the force and effect of an Act, But
clearly an ordinance has this force and effect only over an area where it can validity
operate. An invalid ordinance can have no force or effect and if it is not 'law' in the
sense the word has been used in article 21, article 367 (2) cannot make it so.
[Taking note of the fact that the ‘procedure established by law’ in Article 21 requires
some degree of ‘firmness’ and ‘permanence’ which ordinances can definitely provide
in view of its “provisional and transitory character”, the Learned Judge refuses to call
it law for the purpose of the Article 21 engagement].
[The other dissenting Judge, Tulzapurkar, J., however, agrees with the majority
opinion delivered by Chandrachud, C.J., on this specific issue].
Comment: This case not only lays down the justifications for vesting the Legislative
powers to the Executive under urgent situations, it also makes it amply clear that the
ordinances being no different from ‘laws’ shall be subject to the same level of
constitutional scrutiny that laws have to undergo.
On Judicial Review of the circumstances leading to the Promulgation of the Ordinance
Case: T. Venkata Reddy v. State of Andhra Pradesh, AIR 1985 SC 724 (Coram:
Chandrachud, C.J., Desai, Chinnappa Reddy, Venkataramiah, Misra, JJ.)
This case pertains to the constitutionality of the Andhra Pradesh Abolition of Posts of
Part-time Village Officers Ordinance, 1984. While challenging its constitutionality,
the petitioner argued that the Ordinance is void and ineffective due to lack of
application of mind by the Governor to the subject matter of the Ordinance. While
adjudicating on this aspect, the Court had to first look into the question as to whether
it is competent to exercise it power of judicial review with respect to into such aspects
as the application of mind of the Governor, etc.
Per Venkataramiah, J.:
[After reiterating the point made in cases including A.K. Roy that ordinances are
‘laws’ and have the same force and effect as Acts made by the Parliament, the
Learned Judge observes:]
[...] [W]hether it is permissible to strike down an ordinance on the ground of non-

application of mind or mala fides or that the prevailing circumstances did not warrant
the issue of the Ordinance. In other words, the question is whether the validity of an
ordinance can be tested on grounds similar to those on which an executive or judicial
action is tested. The legislative action under our Constitution is subject only to the
limitations prescribed by the Constitution and to no other. Any law made by their
legislature, which it is not competent to pass, which is violative of the provisions in
Part III of the Constitution or any other constitutional provision is ineffective. It is a
settled rule of constitutional law that the question whether a statute is
constitutional or not is always a question of power of the legislature concerned,
dependent upon the subject matter of the statute, the manner in which it is
accomplished and the mode of enacting it. While the courts can declare a statute
unconstitutional when it transgresses constitutional limits, they are precluded
from inquiring into the propriety of the exercise of the legislative power. It has to
be assumed that the legislative discretion is properly exercised. The motives of
the legislature in passing a statute is beyond the scrutiny of courts. Nor can the
courts examine whether the legislature had applied its mind to the provisions of
a statute before passing it. The propriety expediency and necessity of a legislative
act are for the determination of the legislative authority and are not for
determination by the courts. An ordinance passed either under Article 123 or
under Article 213 of the Constitution stands on the same footing. When the
Constitution says that the ordinance making power is legislative power and an
ordinance shall have the same force as an Act, an ordinance should be clothed with all
the attributes of an Act of legislature carrying with it all its incidents, immunities and
limitations under the Constitution. It cannot be treated as an executive action or an
administrative decision.
Comment: This decision makes it clear that the ordinance being laws are subject to
the same levels of constitutional scrutiny that the laws have to undergo. Thus, if there
is a direct violation of a constitutional provision, or the President has exceeded his
constitutional power, or there has been a colourable exercise of such power, the
ordinance as a “law” shall definitely have to face a stern judicial review. However, the
circumstances preceding the promulgation of such ordinances would be immune from
such scrutiny.
However, some of the reasonings given by the Court, like the ‘temporary’ nature of
the Ordinance and the absolute immunity from judicial Review accorded to the
ordinances have undergone a thorough transformation in recent times, when in the
case of Krishna Kumar Singh v. State of Bihar (a 7 constitutional bench decision
delivered on 3rd January, 2017), the majority rejected the analogy of temporary
enactment. Chandrachud, J., speaking for the majority, held that:
“The satisfaction of the President under Article 123 and of the Governor under
Article 213 is not immune from judicial review particularly after the
amendment brought about by the forty-fourth amendment to the Constitution
by the deletion of clause 4 in both the articles. The test is whether the
satisfaction is based on some relevant material. The court in the exercise of its
power of judicial review will not determine the sufficiency or adequacy of the
material.
The court will scrutinise whether the satisfaction in a particular case

constitutes a fraud on power or was actuated by an oblique motive. Judicial
review in other words would enquire into whether there was no satisfaction at
all.”
Even though this case primarily dealt with repromulgation of ordinances, the
aforementioned paragraph is relevant to ordinances as such. It is submitted that the
widening of the power of judicial review of executive decisions, including the
‘satisfaction of the President’ in Article 356 in the S.R. Bommai case has also
contributed to such enhanced level judicial scrutiny of the power of “Presidential
Legislation”.
On Repromulgation of Ordinances
Case: D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 (Coram: Bhagwati, C.J.,
Misra, Oza, Dutt, Singh, JJ.)
The State of Bihar adopted a practice of repromulgating the ordinances on a massive

scale from time to time without their provisions being enacted into acts of the
legislature. The practice was that, after the session of the State Legislature was
prorogued, the same ordinances which had ceased to operate were repromulgated
containing substantially the same provisions almost in a routine manner.
The petitioners challenged the validity of this practice and in particular they
challenged the constitutional validity of three different ordinances issued by the
Governor of Bihar since these Ordinances also suffered the same process of
repromulgation from time to time.
Per Bhawgati, C.J.:

These petitions under Article 32 of the Constitution raise a short question of great
constitutional importance relating to the power of the Governor under Article 213 of
the Constitution to re-promulgate ordinances from time to time without getting them
replaced by Acts of the Legislature. The question is, can the Governor go on re-
promulgating ordinances for an indefinite period of time and thus take over to himself
the power of the Legislature to legislate though that power is conferred on him
under Article 213 only for the purpose of enabling him to take immediate action at a
time when the legislative assembly of the State is not in session or when in a case
where there is a legislative council in the State, both Houses of Legislature are not in
session.
[...][I]t is in public interest that the Executive should know what are the limitations on
the power of the Governor in the matter of re-promulgation of ordinances. If this
question is not decided on merits, the correct position in regard to the constitutional
limitations on the power of the Governor to re-promulgate ordinances will remain
undetermined. We are of the view that this question has great public importance and it
must be decided by us on merits in order to afford guidance to the Governor in the
exercise of his power to repromulgate ordinances from time to time. [...]
[Referring to the petitioner’s book titled “Repromulgation of Ordinances: Fraud on

the Constitution of India”, the Learned Judge outlines instances where “the Governor
of Bihar promulgated 256 ordinances between 1967 and 1981 and all these ordinances
were kept alive for periods ranging between one to 14 years by repromulgation from
time to time. Out of these 256 ordinances 69 were repromulgated several times and
kept alive with the prior permission of the President of India”. Observing this
unfortunate phenomenon, he holds:]
The power conferred on the Governor to issue Ordinances is in the nature of an

emergency power which is vested in the Governor for taking immediate action where
such action may become necessary at a time when the Legislature is not in Session.
The primary law making authority under the Constitution is the Legislature and not
the Executive but it is possible that when the Legislature is not in Session
circumstances may arise which render it necessary to take immediate action and in
such a case in order that public interest may not suffer by reason of the inability of the
Legislature to make law to deal with the emergent situation, the Governor is vested
with the power to promulgate Ordinances. But every Ordinance promulgated by the
Governor must be placed before the Legislature and it would cease to operate at the
expiration of six weeks from the reassembly of the Legislature or if before the
expiration of that period a resolution disapproving it is passed by the Legislative
Assembly and agreed to by the Legislative Council, if any. The object of this
provision is that since the power conferred on the Governor to issue Ordinances
is an emergent power exercisable when the Legislature is not in Session, an
Ordinance promulgated by the Governor to deal with a situation which requires
immediate action and which cannot wait until the legislature reassembles, must
necessarily have a limited life. Since Article 174 enjoins that the Legislature shall
meet at least twice in a year but six months shall not intervene between its last sitting
in one session and the date appointed for its first sitting in the next Session and an
Ordinance made by the Governor must cease to operate at the expiration of six weeks
from the reassembly of the Legislature, it is obvious that the maximum life of an
Ordinance cannot exceed seven and a half months unless it is replaced by an Act of
the Legislature or disapproved by the resolution of the Legislature before the expiry
of that period. The power to promulgate an Ordinance is essentially a power to be
used to meet an extra-ordinary situation and it cannot be allowed to be
"perverted to serve political ends." It is contrary to all democratic norms that the
Executive should have the power to make a law, but in order to meet an emergent
situation, this power is conferred on the Governor and an Ordinance issued by the
Governor in exercise of this power must, therefore, of necessity be limited in point of
time. That is why it is provided that the Ordinance shall cease to operate on the
expiration of six weeks from the date of assembling of the Legislature. The
Constitution makers expected that if the provisions of the Ordinance are to be
continued in force, this time should be sufficient for the Legislature to pass the
necessary Act. But if within this time the Legislature does not pass such an Act, the
Ordinance must come to an end. The Executive cannot continue the provisions of
the Ordinance in force without going to the Legislature. The law-making function
is entrusted by the Constitution to the Legislature consisting of the representatives of
the people and if the Executive were permitted to continue the provisions of an
Ordinance in force by adopting the methodology of repromulgation without
submitting to the voice of the Legislature, it would be nothing short of usurpation by
the Executive of the law- making function of the Legislature. The Executive cannot
by taking resort to an emergency power exercisable by it only when the Legislature is
not in Session, take over the law- making function of the Legislature. That would be
clearly subverting the democratic process which lies at the core of our constitutional
scheme, for then the people would be governed not the laws made by the Legislature
as provided in the Constitution but by laws made by the Executive. The Government
cannot by-pass the Legislature and without enacting the provisions of the
Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as
the Legislature is prorogued. Of course, there may be a situation where it may not
be possible for the Government to introduce and push through in the Legislature a Bill
containing the same provisions as in the Ordinance, because the Legislature may have
too much legislative business in a particular Session or the time at the disposal of the
Legislature in a particular Session may be short, and in that event, the Governor may
legitimately find that it is necessary to repromulgate the Ordinance. Where such is the
case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it
would be a colourable exercise of power on the part of the Executive to continue an
Ordinance with substantially the same provisions beyond the period limited by the
Constitution, by adopting the methodology of repromulgation. It is settled law that a
constitutional authority cannot do indirectly what it is not permitted to do
directly. If there is a constitutional provision inhibiting the constitutional
authority from doing an Act, such provision cannot be allowed to be defeated by
adoption of any subterfuge. That would be clearly a fraud on the constitutional
provision.
[He goes on to add:]
When the constitutional provision stipulates that an Ordinance promulgated by the

Governor to meet an emergent situation shall cease to be in operation at the expiration
of six weeks from the reassembly of the Legislature and the Government if it wishes
the provisions of the Ordinance to be continued in force beyond the period of six
weeks has to go before the Legislature which is the constitutional authority entrusted
with the law making function, it would most certainly be a colourable exercise of
power for the Government to ignore the Legislature and to repromulgate the
Ordinance and thus to continue to regulate the life and liberty of the citizens
through Ordinance made by the Executive. Such a strategem would be repugnant
to the constitutional scheme as it would enable the Executive to transgress its
constitutional limitation in the matter of law making in an emergent situation and to
covertly and indirectly arrogate to itself the law making function of the
Legislature. [...] It is true that, according to the decisions of the Privy Council and this
Court, the Court cannot examine the question of satisfaction of the Governor in
issuing an Ordinance, but the question in the present case does not raise any
controversy in regard to the satisfaction of the Governor. The only question is
whether the Governor has power to repromulgate the same Ordinance
successively without bringing it before the Legislature. That clearly the
Governor cannot do. He cannot assume legislative function in excess of the
strictly defined limits set out in the Constitution because otherwise he would be
usurping a function which does not belong to him. [...] The startling facts which we
have narrated above clearly show that the Executive in Bihar has almost taken over
the role of the Legislature in making laws, not for a limited period, but for years
together in disregard of the constitutional limitations. This is clearly contrary to the
constitutional scheme and it must be held to be improper and invalid. We hope and
trust that such practice shall not be continued in the future and that whenever an
Ordinance is made and the Government wishes to continue the provisions of the
Ordinance in force after the assembling of the Legislature, a Bill will be brought
before the Legislature for enacting those provisions into an Act. There must not be
Ordinance-Raj in the country.
Comment: Despite the clear and indisputable affirmation in this judgement of the fact
that unless there is an absolutely legitimate exceptional circumstance, the Ordinances
should mandatorily be laid before the Legislature for discussion, it was observed that
the “exceptional circumstance” escape clause to continue to repromulgate ordinances.
In order to plug this loophole, in the Krishna Kumar case (by a majority of 6:1, with
Thakur, C.J., Chandrachud, Bobde, Goel, Lalit, Rao, JJ. speaking for the majority and
Lokur, J. being the lone dissent), the majority, speaking through Chandrachud, J.,
holds:
“Once the legislature has reconvened after the promulgation of an ordinance, the
Constitution presupposes that it is for the legislative body in exercise of its power to
enact law, to determine the need for the provisions which the ordinance incorporates
and the expediency of enacting them into legislation. Once the legislature has
convened in session, the need for an ordinance is necessarily brought to an end since
it is then for the legislative body to decide in its collective wisdom as to whether an
ordinance should have been made and if so, whether a law should be enacted.”
Further, it is observed:
“Re-promulgation postulates that despite the intervening session of the legislature, a

fresh exercise of the power to promulgate an ordinance is being resorted to despite the
fact that the legislature which was in seisin of a previously promulgated ordinance has
not converted its provisions into a regularly enacted law. What if there is an
exceptional situation in which the House of the legislature was unable to enact a
legislation along the lines of an ordinance because of the pressure of legislative work
or due to reasons? Would the satisfaction of the Governor on the need for
immediate action be arrived at for an act of re-promulgation, after a legislative
session has intervened? […] Re-promulgation of ordinances is constitutionally
impermissible since it represents an effort to overreach the legislative body
which is a primary source of law making authority in a parliamentary
democracy. Re-promulgation defeats the constitutional scheme under which a
limited power to frame ordinances has been conferred upon the President and
the Governors.”
Conclusion
This chapter, which has dealt with several aspects concerning the Executive – definitely
points out towards one common inference. It can be noted that in initial days of our
constitutional journey, more deference and reliance was placed with the executive
governments, such that the judiciary would indeed hesitate to enter into the political questions
and matters of policy. But gradually, it was observed that there came an impending need to
safeguard the constitution from mala fide abuses of power. Therefore, and quite
appropriately, the judiciary has had to extend its powers of judicial review to cover such
situations of gross abuse in order to uphold justice and rule of law.
CENTRE-STATE
RELATIONS
CENTRE-STATE RELATIONS
Introduction
This Chapter discusses one of the most crucial aspects of federal (or, in our case, quasi-
federal) governance – the relations between the Centre and the States. The determination of
the nuances of this relationship is critical to the way day-to-day synergies between the Centre
and the State span out in the real world. The extent of powers that one can exercise vis-a-vis
the other in terms of legislative and administrative competence, the distribution of financial
powers, and the situations of breakdown of constitutional machineries necessitating the
usurpation of the States’ powers by the Centre – these issues have attracted very serious
introspection by the Judiciary resulting in a number of landmark cases. This Chapter seeks to
discuss a few of them.
The Chapter is divided into five sections. Section A discusses the true nature of the Indian
constitution – whether it is federal or not. The next three sections contain discussions of cases
dealing with legislative, administrative and financial relations between the Union and the
States respectively. The last section – Section E, deals with the situation of Breakdown of
Constitutional Machinery resulting in the imposition of Article 356 on the State, and issues
concomitant thereto.
Section A
Federalism and the Indian Constitution
Introduction
The first and foremost question that one has to usually encounter while dealing with the
nature of centre-state relations in any constitution, is whether the Constitution of the country
provides for a unitary or a federal model of distribution of powers between the Union and the
States. In other words, the moot question is whether the governance is centralised, or
decentralised. This question assumes even greater importance in a country like India where
our constitutional history has shown the difficulties with which in the days immediately after
independence, a number of extremely diverse states needed to be consolidated together into
one pluralistic whole. Naturally therefore, the Constitution makers had to be very meticulous
in distributing the legislative, administrative and financial powers among the Union and the
States.
In doing so, the policy choice before the founding fathers was whether we would like to
strictly adhere to the American model of Federalism where a lot of functional autonomy is
given to the States, or should we prefer a unitary model of Governance. Interestingly enough,
our Constitution provides in a way for a mix of both models. Scholars have called the federal
model we follow as ‘quasi-federal’, or ‘federal, with a unitary tilt’. This Chapter seeks to
explore the true nature of the Indian model of Federalism through two cases where the
Supreme Court has had the opportunity to debate on certain critical questions, answers to
which throw considerable light on the issue.
On the quasi-federal nature of the Constitution
Case: State of West Bengal v. Union of India, AIR 1963 SC 1241 (Coram: Sinha,
C.J., Jaffer Imam, Subba Rao, Shah, Ayyangar, Mudholkar, JJ)
By virtue of Coal Bearing Areas (Acquisition and Development) Act, 1957, the
Parliament desired that the Union of India would acquire certain coal bearing lands in
West Bengal. The State of West Bengal filed the suit stating that the coal bearing
lands in question were owned by the State and within the ambit of their legislative
competence. Any Act of Parliament, which applied to the same lands would be
outside the legislative competence of the Union and hence could not be valid.
In dealing with the legislative competence of the Union in passing the impugned law,
both the majority Judges (speaking through Sinha, J.) and the disenting opinion
(delivered by Subba Rao, J.) make very decisive observations on the nature of the
Indian Constitution – whether it is federal or not.
Per Sinha, C.J. (for himself and Jaffer Imam, Shah, Mudholkar, JJ.):
[Te Learned Chief Justice traces the trajectory of the Centre-State relations from the
models of decentralization practiced in the British times. We take up the discussion
from the Constitutional era, where the Learned Chief Justice observes:]
[…] The territory was evidently too large for a democratic set-up with wholly
centralized form of Government. Imposition of a centralized form might also have
meant a reversal of political trends which had led to decentralization of the
administration and some distribution of power. The Constitution had, therefore, to be
in a form in which authority was decentralized. In the era immediately prior to the
enactment of the Indian Independence Act, there were partially autonomous units
such as the Provinces. There were Indian States which were in a sense sovereign but
their sovereignty was extinguished bythe various merger agreements which the rulers
of those States entered into with the Government of India before the Constitution. By
virtue of the process of integration of the various States there emerged a Centralised
form of administration in which the Governor General was the fountain head of
executive authority. The Constitution of India was erected on the foundations of the
Government of India Act, 1935; the basic structure was not altered in many important
matters, and a large number of provisions were incorporated verbatim from the earlier
Constitution.
In some respects a greater degree of economic unity was sought to be secured by

transferring subjects having impact on matters of common interest into the Union list.
A comparison of the Lists in Schedule 7 to the Constitution with the Schedule 7 to the
Government of India Act, 1935 discloses that the powers of the Union have been
enlarged particularly in the field of economic unity and this was done as it was felt
that there should be, centralized control and administration in certain fields if rapid
economic and industrial progress had to be achieved by the nation. To illustrate this it
is sufficient to refer to National Highways (Entry 24), inter-State Trade and
Commerce (Entry 42)-to mention only a few being transferred from List II of the
Government of India Act to List I in the Constitution, to the new entry regarding
inter-State rivers (Entry 56), to the new Entry 33 in the Concurrent List to which it is
transferred from List 11, and to the comprehensive provisions of Part XIII-which seek
to make India a single economic unit for Purposes of trade and commerce under the
overall control of the Union Parliament and the Union Executive. The result was a
Constitution which was not true to, any traditional pattern of federation. There
is no warrant for the assumption that the Provinces were sovereign, autonomous
units which had parted with such power as they considered reasonable or proper
for enabling the Central Government to function for the common good. The legal
theory on which the Constitution was based was the withdrawal or resumption
of all the powers of sovereignty into the people of this country and the
distribution of these powers save those withheld from both the Union and the
States by reason of the provisions of Part III between the Union and the States.
[The Learned Chief Justice went on to describe the salient features of a federal
government, in order to analyse whether such features can be seen in India. He
opined:]
(a) A truly federal form of Government envisages a compact or agreement between

independent and sovereign units to surrender partially their authority in their common
interest and vesting it in a Union and retaining the residue of the authority in the
constituent units. Ordinarily each constituent unit has its separate Constitution by
which it is governed in all matters except those surrendered to the Union, and the
Constitution of the Union primarily operates upon the administration of the units. Our
Constitution was not the result of any such compact or agreement: Units constituting a
unitary State which were non-sovereign were transformed by abdication of power into
a Union.
(b) Supremacy of the Constitution which cannot be altered except by the component
units. Our Constitution is undoubtedly supreme but it is liable to be altered by the
Union Parliament alone and the units have no power to alter it.
(c) Distribution of powers between the Union and the regional units each in its sphere
coordinate and independent of the other. The basis of such distribution of power is
that in matters of national importance in which a uniform policy is desirable in the
interest of the units, authority is entrusted to the Union, and matters of local concern
remain with the State.
(d) Supreme authority of the Courts to interpret the Constitution and to invalidate
action violative of the Constitution. A federal Constitution, by its very nature, consists
of checks and balances and must contain provisions for resolving conflicts between
the executive and legislative authority of the Union and the regional units.
In our Constitution characteristic (d) is to be found in full force, (a) and (b) are absent.
There is undoubtedly distribution of powers between the Union and the States in
matters legislative and executive; but distribution of powers is not always an index of
political sovereignty. The exercise of powers legislative and executive in the allotted
fields is hedged in by numerous restrictions, so that the powers of the States are not
coordinate with the Union and are not in many respects independent.
[He goes on to enumerate his observation with instances from the Constitutional text:]
Legal sovereignty of the Indian nation is vested the people of India who as stated by
the preamble have solemnly resolved to constitute India into a Sovereign Democratic
Republic for the objects specified therein. The Political sovereignty is distributed
between, as we will presently demonstrate, the Union of India and the States with
greater weightage in favour of the Union. Article 300 invests the Government of India
and the States with the character of quasi-corporations entitled to sue and liable to be
sued in relation to their respective affairs. By Art. 299 contracts may be entered into
by the Union and the States in exercise of their respective executive powers and Art.
298 authorises in exercise of their respective executive powers the Union and the
States to carry on trade or business and to acquire, hold and dispose of property and to
make contracts. These provisions and the entrustment of powers to legislate on certain
matters exclusive, and concurrently in certain other matters, and entrustment of
executive authority coextensive with the legislative power form the foundation of the
division of authority.
In India judicial power is exercised by a single set of courts, Civil, Criminal and
Revenue whether they deal with disputes in respect of legislation which is either State
legislation or Union legislation. The exercise of executive authority by the Union or
by the State and rights and obligations arising out of the executive authority are
subject to the jurisdiction of the Courts which have territorial jurisdiction in respect of
the cause of action. The High Courts have been invested with certain powers
under Art. 226 to issue writs addressed to any person or authority, including in
appropriate cases any Government, for the enforcement of any of the rights conferred
by Part III and for any other purpose and under Art. 227 the High Court has
superintendence over all courts in relation to which it exercises jurisdiction. The
Supreme Court is at the apex of the hierarchy of courts, civil, criminal, revenue and of
quasi- judicial tribunals. There are in India not two sets of courts, Federal and State as
are found functioning under the Constitution of the United States of America. By Art.
247 power is reserved to the Parliament by law to provide for establishment of courts
for better administration of laws made by the Parliament or of any existing laws with
regard to the matters enumerated in the Union List, but no such courts have been
constituted.
Sovereignty in executive matters of the Union is declared by Art. 73 which enacts that
subject to the provisions of the Constitution, the executive power of the Union
extends to the matters with respect to which Parliament may make laws, and to the
exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement. But this executive power
may not save as expressly provided in the Constitution or in any law made by
Parliament, extend in any State to matters with respect to which the Legislature of the
State has also power to make laws. By Art. 77 all executive actions of the
Government of India have to be expressed to be taken in the name of the President.
Executive power of the State is vested by Art. 154 in the Governor and is exercisable
by him directly or through officers subordinate to him in accordance with the
Constitution. The appointment of the Governor is made by the President and it is open
to the President to make such provision as lie thinks fit for the discharge of the
function of a Governor of the State in any contingency not provided for in Ch. II of
Part VI. By Art. 162 subject to the provisions of the Constitution, executive power of
the State extends to matters with respect to which the Legislature of the State has
power to make laws, subject to the restriction that in matters in the Concurrent List of
the Seventh Schedule, exercise of executive power of the State is also subject to and
limited by the executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union or authorities thereof. Exercise of executive
authority of the States is largely restricted by diverse Constitutional provisions. The
executive power of every State has to be so exercised as to ensure compliance with
the laws made by Parliament and any existing laws which apply in that State, and not
to impede or prejudice the executive power of the Union. The executive power of the
Union extends to the giving of such directions to a State as may appear to the
Government of India to be necessary for those purposes and as to the construction and
maintenance of means of communication declared to be of national 'or military
importance and for protection of railways. The Parliament has power to declare
highways or waterways to be of national importance, and the Union may execute
those powers, and also construct and maintain means of communication as part of its
function with respect to naval, military and air force works. The President may also,
with the consent of the Government of a State, entrust to that Government or to its
officers functions in relation to any matter to which the executive power of the Union
extends : Art. 258 (1). Again the Union Parliament may by law made in exercise of
authority in respect of matters exclusively within its competence confer powers and
duties or authorise the conferment of powers and imposition of duties upon the State,
or officers or authorities thereof : Art 258 (2). Art. 365 authorises the President to
hold that a situation has arisen in which the Government of a State cannot be carried
on in accordance with the provisions of the Constitution, if the State fails to comply
with or give effect to any directions given in exercise of the executive power of the
Union.
These are the restrictions on the exercise of the executive power by the States, in
normal times; in times of emergency power to override the exercise of executive
power of the State is entrusted to the Union. Again the field of exercise of' legislative
power being coextensive with the exercise of the legislative power of the States, the
restrictions imposed upon the legislative power also apply to the exercise of executive
power. Distribution of legislative powers is effected by Art. 246. In respect of matters
set out in List I of the Seventh Schedule Parliament has exclusive power to make
laws: in respect of matters set out in List II the State has exclusive power to Legislate
and in respect of matters set out in List III Parliament and the State Legislature have
concurrent power to legislate. The residuary power, including the power to tax,
by Art. 248 and item 97 of List I is vested in the Parliament. The basis of distribution
of powers between the Union and States is that only those powers and authorities
which are concerted with the regulation of local problems are vested in the States, and
the residue specially those, which tend to maintain the economic, industrial and
commercial unity of the nation are left with the Union. By Art. 123 the President is
invested with the power to promulgate Ordinances on matters on which the
Parliament is competent to legislate, during recess of Parliament. Similarly under Art.
213 power is conferred upon the, Governor of a State to promulgate Ordinances on
matters on which the State Legislature is competent to legislate during recess of the
Legislature. But upon the distribution of legislative powers thus made and entrustment
of power to the State Legislature, restrictions are imposed even in normal
times. Article 249 authorises the Parliament to legislate with respect to any matter in
the State List if the Council of States has declared by resolution supported by not less
than two-third of the members present and voting that it is necessary or expedient in
the national interest that it Parliament should make laws with respect to any matter
enumerated in the State List specified in the resolution. By Art. 252 power is
conferred upon Parliament to legislate for two or more States by consent even though
the Parliament may have no power under Art. 246 to make laws for the State except
as provided in Art. 249 and 250. Such a law may be adopted by a Legislature of any
other State. By Art. 253 Parliament has the power notwithstanding anything contained
in Art. 246 to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries
or any decision made at any international conference, association or other body. In
case of inconsistency between the laws made by Parliament and laws made by the
Legislatures of the States, the laws made by the Parliament whether passed before or
after the State law in matters enumerated in the Concurrent List to the extent of
repugnancy prevail over the State laws. It is only a law made by the Legislature of a
State which had been reserved for the consideration of the President and has received
his assent, on a matter relating to a Concurrent List containing any provision
repugnant to the provisions-of an earlier law made by Parliament or an existing law
with respect to that matter, prevails in the State.
Power of taxation (which is exercisable by the States in comparatively minor fields,

the more important such as Income-tax, wealth-tax, excise duties other than those on
certain specified articles, and customs, being reserved to the Union) conferred by
various entries under List II on the States is also severely restricted. Property of the
Union, save in so far as the Parliament may by law otherwise provide, is exempt from
all taxes imposed by the State or by any authority within the State. By Art.
286 imposition of a tax on sale or purchase of goods' where such sale or purchase
takes place outside the State or in the course of import of the goods into, or export of
the goods out of, the territory of India can only be imposed by Parliamentary
legislation. A State is also prohibited unless the Parliament by law otherwise provides,
from imposing a tax on the consumption or sale of electricity which is consumed by
the Government of India or in the construction, maintenance and operation of any
railway. Nor can levy of a tax be authorised in respect of water consumed or
distributed or sold by any authority established by any existing law or any law made
by Parliament for regulating or developing any inter-State river or river valley, except
in so far as the Parliament may by law so provide.
The States depend largely upon financial assistance from the Union. A share in certain
taxes levied and collected by the Union such as tax on non-agricultural income, duties
in respect of succession to property other than agricultural land, estate duty in respect
of property other than agricultural land, terminal taxes on goods or passengers carried
by railway, sea or air, taxes on railway fares and freights, taxes on the sale or
purchase of newspapers and on advertisements published therein, taxes on the sale or
purchase of goods other than newspapers where such sale or purchase takes place in
the course of inter-State trade or commerce, is given to the States. Certain grants-in-
aid of the revenues of the States of Assam, Bihar, Orissa and West Bengal in lieu of
assignment of any share of the net proceeds in each year of export duty on jute and
jute products to those States may also be made. Union duties of excise except duties
on medicinal and toilet preparations are collected by the Union but may be distributed
in whole or in part among the States in accordance with such principles of distribution
as may be formulated. By Art. 275 grants-in-aid of the revenue of such States as
Parliament may determine to be in need of assistance may also be made.
It is manifest that the States depend for financial assistance upon the Union, their own
resources, because of their restricted fields of taxation, being inadequate. The power
of borrowing is exercisable by the States under Art. 293, but the same cannot be
exercised without the consent of the Government of India, if there is still outstanding
any part of a loan which has been made to the State by the Government of India or by
its predecessor Government, or in respect of which a guarantee has been given by the
Union, or by its predecessor.
In times of national political or financial emergency, the States may exercise only
such powers legislative and executive as the Union permits. When a State of
emergency is declared the Parliament has power to make laws for the whole or any
part of the territory of India with respect to any matter in the State List, and the laws
made by Parliament prevail over the State Laws in the event of repugnancy. If as a
result of war, external aggression or internal disturbances the security of India or any
territory is threatened, the President may declare a state of emergency, and the
executive power of the Union will thereupon extend to giving directions to the States,
as to manner in which the executive power of the States is to be exercised, and the
power of the Parliament to make laws will extend to making laws conferring or
authorising conferment of powers and imposition of duties, upon the Union or its
officers and authorities as respect any matter, even if such matter be not enumerated
in the Union List. The President may also during the emergency suspend the operation
of Art. 268, to 279 and require that all money Bills shall be submitted to the President
for his consideration, after they are passed by the Legislature of the State.
The normal corporate existence of States entitles them to enter into contracts and
invests them with power to carry on trade or business and the States have the right to
hold property. But having regard to certain basic features of the Constitution, the
restrictions on the exercise of their powers executive and legislative and on the
powers of taxation, and dependence for finances upon the Union Government it
would not be correct to maintain that absolute sovereignty remains vested in the
States. This is illustrated by certain striking features of our constitutional set up.
There is no dual citizenship in India: all citizens are citizens of India and not of the
various States in which they are domiciled. There are no independent Constitutions of
the States, apart from the national Constitution of the Union of India: Ch. II, Part VI
from Arts. 152 to 237, deals with the States, the powers of the Legislatures of the
States, the powers of the executive and judiciary. What appears to militate against the
theory regarding the sovereignty of the State is the wide power with which the
Parliament is invested to alter the boundaries of States, and even to extinguish the
existence of a State. There is no constitutional guarantee against alteration of the
boundaries of the States. By Art. 2 of the Constitution the Parliament may admit into
the Union or establish new States on such terms and conditions as it thinks fit, and
by Art. 3 the Parliament is by law authorised to form a new State by redistribution of
the territory of a State or by uniting two or more States or parts of States or by uniting
any territory to a part of any State, increase the area of any State, diminish the area of
any State, alter the boundaries of any State and alter the name of any State.
Legislation which so vitally affects the very existence of the States may be moved on
the recommendation of the President which in practice means the recommendation of
the Union Ministry, and if the proposal in the Bill affects the area, boundaries or name
of any of the States, the President has to refer the Bill to the Legislature of that State
for merely expressing its views thereon. Parliament is therefore by law invested with
authority to alter the boundaries of any State and to diminish its area so as even to
destroy a State with all its powers and authority. That being the extent of the power of
the Parliament it would be difficult to hold that the Parliament which is competent to
destroy a State is on account of some assumption as to absolute sovereignty of the
State incompetent effectively to acquire by legislation designed for that purpose the
property owned by the State for governmental purpose. The parliamentary power of
legislation to acquire property is, subject to the express provisions of the
Constitution, unrestricted. To imply limitations on that power on the assumption
of that degree of political sovereignty which makes the States coordinate with
and independent of the Union, is to envisage a Constitutional scheme which does
not exist in law or in practice. On a review of the diverse provisions of the
Constitution the inference is inevitable that the distribution of powers-both legislative
and executive-does not support the theory of full sovereignty in the States so as to
render it immune from the exercise of legislative power of the Union Parliament-
particularly in relation to acquisition of property of the States. That the Parliament
may in the ordinary course not seek to obstruct the normal exercise of the
powers which the States have, both legislative and executive, in the field allotted
to them will not be a ground for holding that the Parliament has no such power
if it desires, in exercise of the powers which we have summarised, do so. It was
urged that to hold that property yes to in the State could be acquired by the Union,
would mean, as was picturesquely expressed by the learned Advocate-General of
Bengal, that the Union could acquire and take possession of Writer's buildings where
the Secretariat of the State Government is functioning and thus stop all State
Governmental activity. There could be no doubt that if the Union did so, it would not
be using but abusing its power of acquisition, but the fact that a power is capable of
being abused has never been in law a reason for denying its existence, for its existence
has to be determined on very different considerations.
[The Learned Judge, after deliberating on the nature of the arrangement of distribution
of powers provided for in some of the Federal Constitutions, holds:]
In these circumstances we are unable to appreciate the argument that if the

Constitution were to be held to be a Federation, the States being considered as the
federative units, such a status necessarily involved a prohibition or negation of the
right of the Union to acquire the property of the State for the purpose of giving effect
to its legislative powers. Therefore the power of the Union to legislate in respect of
property situate in the States even if the States are regarded qua the Union as
Sovereign, remains unrestricted, and the State property is not immune from its
operation. Exercising powers under the diverse entries which have been referred
to earlier, the Union Parliament could legislate so as to trench upon the rights of
the State in the property vested in them. If exclusion of State property from the
purview of Union legislation is regarded as implicit in those entries in List I, it would
be difficult if not impossible for the Union Government to carry out its obligations in
respect of matters of national importance. If the entries which we have referred to
earlier are not subject to any such restriction as suggested, there would be no reason to
suppose that Entry 42 of List III is subject to the limitation that the property which is
referred to in that item is of individuals or corporations and not of the State. In its
ultimate analysis the question is one of legislative competence. Is the power conferred
by Entry 42 List III as accessory to the effectuation of the power under Entries 52 &
54 incapable of being exercised in respect of property of the States? No positive
interdict against its exercise is perceptible in the Constitution: and the implication of
such an interdict assumes a degree of sovereignty in the States of such plenitude as
transcending the express legislative power of the Union. The Constitution which
makes a division of legislative and executive powers between the Union and the
States is not founded on such a postulate: and the concept of superiority of the Union
over the States in the manifold aspects already examined negatives it.
[The Learned Chief Justice goes on to use the Non-obstante clause in Article 246 and
the doctrine of Plenary Powers (giving to each entry in the lists to Schedule VII their
widest possible interpretation in the order as mentioned in Article 246) to uphold the
constitutionality of the impugned law. He holds:]
In considering the true meaning of words or expression used by the Legislature

the Court must have regard to the aim, object and scope of the statute to be read
in its entirety. The Court must ascertain the intention of the Legislature by
directing its attention not merely to the clauses to be construed but to the entire
Statute; it must compare the clause with the other parts of the law, and the
setting in which the clause to be interpreted occurs. Again in interpreting a
Constitutional document provisions conferring legislative power must normally
be interpreted liberally and in their widest amplitude. [...] Entry 42 in List III does
not, prima facie, contain any indication that the expression "Property" therein is to be
understood in any restricted sense: nor do the other provisions of the Constitution for
reasons already stated suggest a restricted meaning. The ground of absolute
sovereignty of the States which may not be interfered with by taking property vested
in the States by Parliamentary legislation has no legal basis. Again denial of power to
the Union Parliament to legislate on allotted topics of legislation, in a manner
affecting the property vested in a State may render Parliamentary legislation virtually
ineffective. No provision in the Constitution suggesting a restricted meaning of the
word 'property' in the context of legislative power has been brought to our notice.
Regard being had to the extensive powers which the Union Parliament and Executive
have for using State property, in the larger public interest, the restrict on suggested
that the power does not extend to the acquisition of property of the States does not
seem to be contemplated. By making the requisite declarations under Entries 54 of
List I, the Union Parliament assumed power to regulate mines and minerals and
thereby to deny to all agencies not under the control of the Union, authority to work
the mines. It could scarcely be imagined that the Constitution makers while
intending to confer an exclusive power to work mines and minerals under the
control of the Union, still prevented effective exercise of that power by making it
impossible compulsorily to acquire the land vested in the States containing
minerals. The effective exercise of the power would depend - if such an argument is
accepted - not upon the exercise of the power to undertake regulation and control by
issuing a notification under Entry 54, but upon the will of the State in the territory of
which mineral bearing land is situate. Power to legislate for regulation and
development of mines and minerals under the control of the Union, would by
necessary implication, include the power to acquire mines and minerals. Power
to legislate for acquisition of property vested in the States cannot therefore be
denied to the Parliament if it be exercised consistently with the protection
afforded by Art. 31.
Per Subba Rao, J. (Dissenting):
[The Learned Judge too goes into the distribution of powers between the Union and
the States in our Constitution and despite such arrangement not being in complete
synergy with the Federal models of the U.S., he refuses to call ourselves ‘not federal’
only because of these differences. He observes:]
Under the scheme of our Constitution, sovereign powers are distributed between the
Union and the States within the' spheres allotted to them. The Union exercises the
sovereign powers within its sphere throughout the territories of India, and the States
exercise their sovereign powers within their respective territories in respect of their
allotted fields. The Legislatures of the States as well as the Parliament are elected on
adult franchise. The legislative field of the Union is much wider than that of the
States; and in case of conflict in the common field allotted to them, the Union law
generally prevails over the State law. In regard to Bills passed by a Legislature of a
State, the Governor may, and in the case of bills derogating from the powers of the
High Court shall, reserve them for the consideration of the President: though this is in
theory a limitation on the legislative power of the State, in practice the Governor only
acts on the advice of the ministry which has the confidence of the Legislature. Except
in the case of a bill derogating from the powers of the High Court when the Governor
is bound to refer it to the President, in other cases it is not likely that the Governor
would refer a bill to the President contrary to the advice of the ministry. In a few cases
of legislation where inter- State element or conflict of laws are involved, sanction of
the President is made a condition precedent for their validity: see Arts. 200, 254, 304
etc. Coming to the executive field, both the Union and the State are manned by
ministers responsible to their respective Legislatures elected on adult franchise. The
executive powers of the Union as well as of the States extend to matters in respect of
which they have power to make laws, though the executive of the Union can give
directions to a State to ensure compliance with the laws made by Parliament and any.
existing law which applies in that State. The State is also enjoined to exercise its
powers in such a way as not to impede or restrict the exercise of the power of the
Union executive; and the executive of the Union is empowered to give directions to
the State as may be necessary for that purpose. So too, the Union executive can
give directions to a State as to the construction and maintenance of means of
communications declared to be of national importance. It is also authorised to confer
powers on States in respect of matters to which the executive power of the Union
extends. By and large, with minor exceptions, the Union as well as the State executive
functions in its exclusive field, and the Union executive's directives are intended to
facilitate the carrying out of the Union purposes.
Every State has its judiciary and the highest court in a State is the High Court of
judicature. The expenditure of the State judiciary is charged on the consolidated fund
of the State concerned but the judges of the High Court are appointed by the
President; and appeals lie to the Supreme Court of India in certain matters and it has
also extraordinary powers to entertain appeals in other matters or to issue writs to
enforce fundamental rights. But both the High Courts and the Supreme Court interpret
the State and the Union laws and resolve conflicts, if any. An integrated system of
judiciary has been accepted by the Constitution and the judicial control operates both
ways, though the final word is with the Supreme Court. That cannot by itself affect
the federal principle, as even in Australia an appeal lies to the Privy Council, under
certain circumstances, from the decisions of the High Court of the Commonwealth of
Australia.
In financial matters, though the States and the Union have consolidated funds of their
own, the sources allotted to the States are comparatively meagre and those allotted to
the Union appear to be perennial; the States also depend upon the Union for allocation
of funds from and out of the taxes collected by it and also for grants; though there is
no direct control by the Union over the field of finance of the States, there will always
be indirect pressure on the States in that field, The Union, being in charge of the purse
strings, can always, to use an euphemistic term, persuade the States to take its advice.
In case of emergencies, such as, war, external aggression, internal disturbances,
failure of the constitutional machinery and financial instability, extraordinary powers
are conferred on the Union, subject to certain limitations, to interfere with the States'
administration; but the provisions relating to emergency situations are really in the
nature of safety valves to protect the country's future. Parliament has also the power to
change the boundaries of the territories or form new territories, but that is also an
extraordinary provision to meet certain emergencies.
There is also another side of the picture. Parliament shall consist of the President and
two Houses respectively known as the Council of States and the House of' the people;
the Council of States shall consist, apart from the 12 nominated members, not more
than 238 representatives of the States and the Union territories. A part of the
Parliament is, therefore, comprised of the representatives of the State Legislatures.
Though the powers of the Council of States are not co-equal with those of the House
of the People,. to the extent it exercises its legislative powers the States also have
control over the Union. The States are also entitled to be consulted in the matter of the
amendment of certain provisions of the Constitution: vide Art. 368. The foregoing
resume of the provisions of the Constitution reveals the following picture: The
political sovereign is the people of India and the legal sovereignty is divided between
the constitutional entities i.e., the Union and the States, who are juristic personalities
possessing properties and functioning through the instrumentalities created by the
Constitution. Though the jurisdiction of the Union is confined to some subjects, it
extends throughout India, whereas that of the States is confined to their territorial
limits. Within their respective spheres both in the legislative and executive fields they
are supreme; their inter se relationship is regulated by specific provisions. The
relation between the Union and the States cannot be found in the legislative fields
demarcated by the Lists, but can only be discovered in the specific constitutional
provisions forging links between them, The emergency powers of the Union to meet
extraordinary situations do not affect its exclusive fields of operation in normal times.
On the basis of a comparison of the Indian Constitution with that of America, it is
argued that none of the important criteria of a federation is present in the Indian
Constitution. "Federalism in the United States embraces the following elements : (1)
as in all federations, the union of several autonomous political entities, or "States", for
common purposes; (2) the division of legislative powers between a "National
Government", on the one hand and constituent "States", on the other, which division
is governed by the rule that the former is "a government of enumerated powers" while
the latter are governments of "residual powers"; (3) the direct operation, for the most
part, of each of these centres of Government, within its assigned sphere, upon all
persons and property within its territorial limits; (4) the provision of each centre with
the complete apparatus of law enforcement, both executive and judicial; (5) the
supremacy of the "National Government" within its assigned sphere over any
conflicting assertion of "state" power; (6) dual citizenship." The aforesaid elements
are no doubt present in the American Constitution, but it is not possible to contend
that unless all the said criteria exist a constitution cannot be described as a
federal one. Though on paper the American Constitution is a typical federation, in
practice the Supreme Court of the United States of America by evolving and
developing many legal doctrines and implied powers has invested the Federal
Government with large powers to enable it to interfere indirectly in the States field.
Even in regard to judicial power, though the American Supreme Court was originally
conceived to be a Federal Court concerning itself with federal laws, in fact it
authoritatively interprets the State laws when they come into conflict with federal
laws. The point is that even in America there is no federation in the orthodox sense of
the term. So too, the Constitution of Australia clearly demarcates the exclusive fields
of the Commonwealth and the States and jealously guards the State rights, but in
practice the States have been reduced to the position of agencies of the
Commonwealth Government. This was brought about because of the financial grip the
Centre has over the State.
But in Canada the position is the reverse. Though the Centre and the Provinces have
their distinctive Lists of powers, the Central Government has certain limited powers
of control over the governments of the ten Provinces of Canada; the residuary powers
are given to the Centre and not to the States. Though undoubtedly some elements of
unitary form of government are present, the constitutional custom evolved practically
a federal State and, as one author puts it, "no dominion government which attempts to
stress the unitary elements in the Constitution at the expense of the federal elements
would survive." It is, therefore, clear that in every federal Constitution there are either
textually or customarily some unitary elements. The real test to ascertain whether a
particular Constitution has accepted the federal principle or not is whether the
said Constitution provides for the division of powers in such a way that the
general and regional governments are each within its sphere substantially
independent of the other. The reservation of the residue of power or the power to
interfere with States' affairs in emergencies in the Union may affect the balance of
power in a federation, but does not destroy its character. Some Constitutions show a
marked bias towards the Federation and the others towards the States, but
notwithstanding the varying emphasis they accept the federal principle as their basis.
Though some authors, accepting the American Constitution as the yardstick for
a federation, prefer to describe Constitutions with a bias towards Union as quasi-
federations, I do not think it is inappropriate to describe all Constitutions which
substantially accept the federal principle as Federations. Applying this test, I
have no doubt that the Indian Constitution is a federation, as the units in normal
times exercise exclusive sovereign powers within the fields allotted to them. A
further distinction is sought to be made between the American Constitution and the
Indian Constitution on the basis of the historical evolution of the two countries. While
in America, the argument proceeds, the pre-existing sovereign States were brought
together under a federation, in India the Constitution conferred certain powers on the
existing administrative units or such units newly constituted. The status of a political
entity under a particular constitution does not depend upon its history but upon the
provisions of the constitution. The pre-existing independent States may not be given
any appreciable power under a constitution, while newly formed States may enjoy
larger power under another constitution. A federal structure is mainly conceived to
harmonize existing conflicting interests and to provide against future conflicts. India
is a vast country: indeed, it is described as a sub-continent. Historically, before the
advent of the Constitution, there were different Provinces enjoying in practice a fair
amount of autonomy and there were innumerable States with varying forms of
government ranging from pure autocracy to guided democracy. There were also
differences in language, race, religion etc. There were also foreign pockets expected
sooner or later to be incorporated, with the main country. In those circumstances our
Constitution adopted a federal structure with a strong bias towards the Centre. Under
such a structure, while the Centre remains strong to prevent the development of
fissiparous tendencies, the States are made practically autonomous in ordinary times
within the spheres allotted to them.
[Upon this determination of the Federal nature of the governance, the Learned Judge
went on to analyse the impugned statute. He finds that an unfettered, plenary
interpretation of the entry providing for acquisitioning and requisitioning of all kinds
of property, including State property, will be a gross violation of the sovereignty of
the States, the ‘Federal Units’ in his opinion. He therefore concludes:]
The Indian Constitution accepts the federal concept and distributes the sovereign
powers between the coordinate constitutional entitles, namely, the Union and the
States. This concept implies that one cannot encroach upon the governmental
functions or instrumentalities of the other, unless the Constitution expressly provides
for such interference. The legislative fields allotted to the units cover subjects for
legislation and they do not deal with the relationship between the two co-ordinate
units functioning in their allotted fields: this is regulated by other provisions of the
Constitution and there is no provision which enables one unit to take away the
property of another except by agreement. The future stability of our vast country with
its unity in diversity depends upon the strict adherence of the federal principle, which
the fathers of our Constitution have so wisely and foresightedly incorporated therein.
This Court has the constitutional power and the correlative duty - a difficult and
delicate one to prevent encroachment, either overtly or covertly, by the Union of State
field or vice versa, and thus maintain the balance of federation. The present is a
typical case where the Court should stop the Union from overstepping its boundary
and trespassing into the State field. I would, therefore, hold that the impugned Act, in
so far as it confers a power on the Union to acquire the lands owned by the State,
including coal mines and coal bearing lands, is ultra vires.
Comment: The views of Sinha, C.J., and Subba Rao, J., both look at the nature of the
Indian governance. While Sinha, C.J. uses the American Model of Federalism to be
his baseline which is significantly different from the Indian model, Subba Rao, J., on
the other hand, refuses to circumscribe to any doctrinaire limitation on the meaning
and implication of the term ‘Federal’. Collectively, this Judgement provides a
fantastic illustration of the extent of the interplay between the Union and the State on
various issues of mutual engagement – Legislative, Executive, Financial, Judicial etc.
This judgement also provides insights into to methods of interpretation of the Lists in
Schedule VII – the Doctrine of Plenary Powers and the interpretation of the Non-
obstante clause in Article 246 of the Constitution.
On Judicial Intervention and the Federal Structure
Case: State of West Bengal v. Committee for Protection of Democratic Rights,

AIR 2010 SC 1476 (Coram: Balakrishnan, Raveendran, Jain, Sathasivam,
Panchal, JJ.)
One Abdul Rahman Mondal, along with a bunch of his political co-workers, were
attacked by miscreants with firearms and explosives, which resulted in a number of
casualties. The Committee for Protection of Democratic Rights, West Bengal filed a
Writ Petition under Article 226 stating that since the Police in West Bengal were
under the influence of the ruling party, an independent agency like the CID should
investigate. The Calcutta High Court rejected this plea, hence the present Special
Leave Petition.
The issue before the Court was whether the High Court, in exercise of its jurisdiction
under Article 226 of the Constitution of India, can direct the Central Bureau of
Investigation (for short "the CBI"), established under the Delhi Special Police
Establishment Act, 1946 (for short "the Special Police Act"), to investigate a
cognizable offence, which is alleged to have taken place within the territorial
jurisdiction of a State, without the consent of the State Government.
Per Jain, J.:
It is manifest that in essence the objection of the appellant to the CBI's role in police
investigation in a State without its consent, proceeds on the doctrine of distribution of
legislative powers as between the Union and the State Legislatures particularly with
reference to the three Lists in the Seventh Schedule of the Constitution and the
distribution of powers between the said three organs of the State.
[The Learned Judge went on to discuss the model of legislative relations between the
Union and the States as provided for in Article 246. He observed:]
Article [246] deals with the distribution of legislative powers between the Union and
the State Legislatures. List I or the Ùnion List' enumerates the subjects over which
the Union shall have exclusive powers of legislation in respect of 99 items or subjects,
which include Defence etc.; List II or the `State List' comprises of subjects, which
include Public Order, Police etc., over which the State Legislature shall have
exclusive power of legislation and List III gives concurrent powers to the Union and
the State Legislatures to legislate in respect of items mentioned therein. The Article
postulates that Parliament shall have exclusive power to legislate with respect to any
of the matters enumerated in List I notwithstanding anything contained in clauses (2)
and (3). The non obstante clause in Article 246(1) contemplates the predominance or
supremacy of the Union Legislature. This power is not encumbered by anything
contained in clause (2) and (3) for these clauses themselves are expressly limited and
made subject to the non obstante clause in Article 246(1). The State Legislature has
exclusive power to make laws for such State or any part thereof with respect to any of
the matters enumerated in List II in the Seventh Schedule and it also has the power to
make laws with respect to any matters enumerated in List III (Concurrent List). The
exclusive power of the State Legislature to legislate with respect to any of the matters
enumerated in List II has to be exercised subject to clause (1) i.e. the exclusive power
of Parliament to legislate with respect to matters enumerated in List I. As a
consequence, if there is a conflict between an Entry in List I and an Entry in List II,
which is not capable of reconciliation, the power of Parliament to legislate with
respect to a matter enumerated in List II must supersede pro tanto the exercise of
power of the State Legislature. Both Parliament and the State Legislature have
concurrent powers of legislation with respect to any of the matters enumerated in List
III. The words "notwithstanding anything contained in clauses (2) and (3)" in Article
246 (1) and the words "subject to clauses (1) and (2)" in Article 246 (3) lay down the
principle of federal supremacy viz. that in case of inevitable conflict between Union
and State powers, the Union power as enumerated in List I shall prevail over the State
power as enumerated in Lists II and III and in case of an overlapping between Lists II
and III, the latter shall prevail. Though, undoubtedly, the Constitution exhibits
supremacy of Parliament over State Legislatures, yet the principle of federal
supremacy laid down in Article 246 of the Constitution cannot be resorted to
unless there is an irreconcilable direct conflict between the entries in the Union
and the State Lists. Thus, there is no quarrel with the broad proposition that under
the Constitution there is a clear demarcation of legislative powers between the Union
and the States and they have to confine themselves within the field entrusted to them.
It may also be borne in mind that the function of the Lists is not to confer powers;
they merely demarcate the Legislative field. But the issue we are called upon to
determine is that when the scheme of Constitution prohibits encroachment by the
Union upon a matter which exclusively falls within the domain of the State
Legislature, like public order, police etc., can the third organ of the State viz. the
Judiciary, direct the CBI, an agency established by the Union to do something in
respect of a State subject, without the consent of the concerned State Government?
[Turning to the facts of the present case, the Learned Judge observed:]
Having noticed the scope and amplitude of Sections 5 and 6 of the Special Police Act,
the question for consideration is whether the restriction imposed on the powers of the
Central Government would apply mutatis mutandis to the Constitutional Courts as
well. As stated above, the main thrust of the argument of Shri K.K. Venugopal,
learned senior counsel [for the State], is that the course adopted by the High Court in
directing the CBI to undertake investigation in the State of West Bengal without the
consent of the State is incompatible with the federal structure as also the doctrine of
separation of powers between the three organs of the State, embodied in the
Constitution even when the High Court, on the material before it, was convinced that
the State Police was dragging its feet in so far as investigation into the 4th January,
2001 carnage was concerned.
In so far as the first limb of the argument is concerned, it needs little emphasis that,
except in the circumstances [as provided for in the Constitution], in a federal
structure, the Union is not permitted to encroach upon the legislative powers of a
State in respect of the matters specified in List II of the Seventh Schedule. However,
the second limb of the argument of the learned counsel in regard to the applicability
of the doctrine of separation of powers to the issue at hand, in our view, is clearly
untenable. Apart from the fact that the question of Centre - State relationship is not an
issue in the present case, a Constitutional Court being itself the custodian of the
federal structure, the invocation of the federal structure doctrine is also misplaced.
In a democratic country governed by a written Constitution, it is the Constitution

which is supreme and sovereign. [..] It is trite that in the Constitutional Scheme
adopted in India, besides supremacy of the Constitution, the separation of powers
between the legislature, the executive and the judiciary constitutes the basic features
of the Constitution. [The Court went on to discuss some of the Basic Structure cases
focusing on this aspect of Separation of Powers, and then observed:]
Having discussed the scope and width of the doctrine of separation of powers, the
moot question for consideration in the present case is that when the fundamental
rights, as enshrined in Part III of the Constitution, which include the right to equality
(Article 14); the freedom of speech [Article 19(1)(a)] and the right not to be deprived
of life and liberty except by procedure established by law (Article 21), as alleged in
the instant case, are violated, can their violation be immunised from judicial scrutiny
on the touchstone of doctrine of separation of powers between the Legislature,
Executive and the Judiciary? To put it differently, can the doctrine of separation of
powers curtail the power of judicial review, conferred on the Constitutional Courts
even in situations where the fundamental rights are sought to be abrogated or abridged
on the ground that exercise of such power would impinge upon the said doctrine?
[The Learned Judge looked at the significance accorded to the Fundamental Rights
embodied in Articles 14, 19 and 21, and the wide power vested on the Judiciary to
enforce writ remedies. Keeping these aspects in mind, he concluded:]
(i) The fundamental rights, enshrined in Part III of the Constitution, are
inherent and cannot be extinguished by any Constitutional or Statutory
provision. Any law that abrogates or abridges such rights would be violative
of the basic structure doctrine. The actual effect and impact of the law on the
rights guaranteed under Part III has to be taken into account in determining
whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the
persons of their lives and personal liberties except according to the procedure
established by law. The said Article in its broad application not only takes
within its fold enforcement of the rights of an accused but also the rights of the
victim. The State has a duty to enforce the human rights of a citizen providing
for fair and impartial investigation against any person accused of commission
of a cognizable offence, which may include its own officers. In certain
situations even a witness to the crime may seek for and shall be granted
protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this
Court under Article 32 and on the High Courts under Article 226 of the
Constitution the power of judicial review being an integral part of the basic
structure of the Constitution, no Act of Parliament can exclude or curtail the
powers of the Constitutional Courts with regard to the enforcement of
fundamental rights. As a matter of fact, such a power is essential to give
practicable content to the objectives of the Constitution embodied in Part III
and other parts of the Constitution. Moreover, in a federal constitution, the
distribution of legislative powers between the Parliament and the State
Legislature involves limitation on legislative powers and, therefore, this
requires an authority other than the Parliament to ascertain whether such
limitations are transgressed. Judicial review acts as the final arbiter not only to
give effect to the distribution of legislative powers between the Parliament and
the State Legislatures, it is also necessary to show any transgression by each
entity. [...]
(iv) If the federal structure is violated by any legislative action, the

Constitution takes care to protect the federal structure by ensuring that
Courts act as guardians and interpreters of the Constitution and provide
remedy under Articles 32 and 226, whenever there is an attempted
violation. In the circumstances, any direction by the Supreme Court or the
High Court in exercise of power under Article 32 or 226 to uphold the
Constitution and maintain the rule of law cannot be termed as violating the
federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the

Executive by the Parliament under an enactment, do not amount to restriction
on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one

hand and Entry 2A and Entry 80 of List I on the other, an investigation
by another agency is permissible subject to grant of consent by the State
concerned, there is no reason as to why, in an exceptional situation, court
would be precluded from exercising the same power which the Union
could exercise in terms of the provisions of the Statute. In our opinion,
exercise of such power by the constitutional courts would not violate the
doctrine of separation of powers. In fact, if in such a situation the court fails to
grant relief, it would be failing in its constitutional duty. [...]
Comment: The Court in this case, acting as the custodian of the constitution and the
sacrosanct Fundamental Rights, held that in exceptional circumstances, it can override
the restrictions imposed on the legislature and the executive by the Lists of the
Seventh Schedule, and order such enquiry. This, the Court observed, was in no way a
violation of the Doctrine of Separation of Powers.
Conclusion
This Chapter makes it clear that there is a distinct unitary tilt in the nature of the Indian
Federal model. As we have already pointed out, there is a perceptible reason behind this tilt.
One cannot lose sight of the fact that the Indian state, diverse and pluralistic that it is, requires
a strong binding force provided by its constitution, else there could arise chances of
disintegration. The Constitutional therefore provides for the quintessential safety valves to
ensure that governance can easily become centralised in times of necessity.
Section B
Legislative Relations
Introduction
This Chapter discusses the different doctrines of interpreting the three lists – Union, State and
Concurrent, provided for in Schedule VII of the Constitution, whereby the ascertainment of
legislative competence in cases of conflict or overlap between the Centre and the States is
done.
As has been noted in the State of West Bengal case discussed in the previous Chapter, the
Indian model of Federalism has a distinct tilt in favour of the Centre. The presence of the
Non-obstante clauses in Article 246, coupled with the doctrine of plenary powers, in a way
further accentuates the unitary slant. Used in isolation, this method of interpretation could
render the Concurrent and the State Lists virtually redundant. However, the Courts have
made sure that the legislative competence of the States is not rendered completely irrelevant.
Several Doctrines of interpretation have been accordingly used to harmonise the legislative
competence of the Union with those of the States. This Chapter discusses some of them.
On ‘Territorial Nexus’ – I
Case: State of Bihar v. Charusila Dasi, AIR 1959 SC 1002 (Coram: S.R. Das, C.J,
S.K. Das, Gajendragadkar, Wanchoo, Hidayatullah, JJ.)
The Respondent Charusila Dasi was in possession of certain properties that were a
part of a private trust deed. She had described herself as settlor of these properties and
was entrusted with certain tasks imposed under the deed. While some of these
properties were located in the State of Bihar, the others were situated outside. She
received a notice from the Bihar State Board of Religious Trusts, Patna asking her to
furnish returns in respect of the trust in accordance with the provisions of the Bihar
Hindu Religious Trusts Act, 1950.There are two contentions that were raised by her -
first that the Act was not applicable to a private trust and second that the Act created
by the State Legislature of Bihar was not applicable to the trust deed in question as
some of the properties were located outside the State of Bihar. We will discuss the
second contention here. A pertinent issue addressed in this issue was whether the laws
made by the State Legislature can have extra territorial operation.
The Supreme Court answered the question in the affirmative by applying the doctrine
of territorial nexus. It held that the Act created by the State Legislature of Bihar can
be applied with respect to properties situated outside Bihar as long as there is some
real and not illusory territorial connection with Bihar.
Per S.K. Das, J.:
The argument before us on behalf of the respondent is this. Under Art. 245 of the
Constitution, Parliament may make laws for the whole or any part of the territory of
India and the legislature of a State may make laws for the whole or any part of the
State. Clause (2) of the said Article further states that no law made by Parliament shall
be deemed to be invalid on the ground that it would have extra-territorial
operation. Article 246 gives the distribution of legislative power. Parliament has
exclusive power to make laws with respect to any of the matters enumerated in what
has been called the Union List; Parliament as also the legislature of a State have
power to make laws with respect to any of the matters enumerated in the Concurrent
List; the legislature of a State has exclusive power to make laws for such State or any
part thereof with respect to any of the matters enumerated in the State List. Item 28 of
the Concurrent List is “charities and charitable institutions, charitable and religious
endowments and religious institutions ". Learned counsel for the respondent contends
that by reason of the provisions in Arts. 245 and 246 of the Constitution read with
item 28 of the Concurrent List, the Bihar legislature which passed the Act had no
power to make a law which has operation outside the State of Bihar; he further
contends that under s. 3 the Act is made applicable to all religious trusts, whether
created before or after the commencement of the Act, any part of the property of
which is situated in the State of Bihar; therefore, the Act will apply to a religious
institution which is outside Bihar even though a small part of its property may lie in
that State. It is contended that such a provision is ultra vires the power of the Bihar
Legislature, and Parliament alone can make a law which will apply to religious
institutions having properties in different States. Alternatively, it is contended that
even if the Act applies to a religious institution in Bihar a small part of the property of
which is in Bihar, the provisions of the Act can have no application to such property
of the institution as is outside Bihar, such as the Calcutta properties in the present
case.
It is necessary first to determine the extent of the application of the Act with reference
to ss. 1 (2) and 3 of the Act read with the preamble. The preamble states:- " Whereas
it is expedient to provide for the better administration of Hindu religious trusts in the
State of Bihar and for the protection and preservation of properties appertaining to
such trusts It is clear from the preamble that the Act is intended to provide for the
better administration of Hindu religious trusts in the State of Bihar. Section 1(2) states
that the Act extends to the whole of the State of Bihar, and s. 3 we have quoted
earlier. If these two provisions are read in the context of the preamble, they can only
mean that the Act applies in cases in which (a) the religious trust or institution is in
Bihar and (b) any part of the property of which institution is situated in the State of
Bihar. In other words, the aforesaid two conditions must be fulfilled for the
application of the Act. It is now well settled that there is a general presumption that
the legislature does not intend to exceed its jurisdiction, and it is a sound principle of
construction that the Act of a sovereign legislature should, if possible, receive such an
interpretation as will make it operative and not inoperative. [...] We accordingly hold
that s. 3 makes the Act applicable to all public religious trusts, that is to say, all public
religious and charitable institutions within the meaning of the definition clause in s.
2 (1) of the Act, which are situate in the State of Bihar and any part of the property of
which is in that State. In other words, both conditions must be fulfilled before the Act
can apply. If this be the true meaning of s. 3 of the Act, we do not think that any of the
provisions of the Act have extra-territorial application or are beyond the competence
and power of the Bihar Legislature. Undoubtedly, the Bihar Legislature has power to
legislate in respect of, to use the phraseology of item 28 of the Concurrent List,
"charities, charitable institutions, charitable and religious endowments and religious
institutions " situate in the State of Bihar. The question, therefore, narrows down
to, this: in so legislating, has it power to affect trust property which may be
outside Bihar but which appertains to the trust situate in Bihar? In our opinion,
the answer to the question must be in the affirmative. It is to be remembered that
with regard to an interest under a trust the beneficiaries' only right is to have the trust
duly administered according to its terms and this right can normally be enforced only
at the place where the trust or religious institution is situate or at the trustees' place of
residence [...] The Act purports to do nothing more. Its aim, as recited in the
preamble, is to provide for the better administration of Hindu religious trusts in the
State of Bihar and for the protection of properties appertaining thereto. This aim is
sought to be achieved by exercising control over the trustees in personam. The trust
being situate in Bihar the State has legislative power over it and also over its trustees
or their servants and agents who must be in Bihar to administer, the trust. Therefore,
there is really no question of the Act having extraterrestrial operation. In any case, the
circumstance that the temples where the deities are installed are situate in Bihar, that
the hospital and charitable dispensary are to be established in Bihar for the benefit of
the Hindu public in Bihar gives enough territorial connection to enable the legislature
of Bihar to make a law with respect to such a trust. This Court has applied the
doctrine of territorial connection or nexus to income-tax legislation, sales tax
legislation and also to legislation imposing a tax on gambling. In Tata Iron & Steel
Co. Ltd. v. State of Bihar [AIR 1958 SC 452] the earlier cases were reviewed and it
was pointed out that sufficiency of the territorial connection involved a consideration
of two elements, namely, (a) the connection must be real and not illusory and (b)
the liability sought to be imposed must be pertinent to that connection. It cannot
be disputed that if the religious endowment is itself situated in Bihar and the trustees
function there, the connection between the religious institution and the property
appertaining thereto is real and not illusory; indeed, the religious institution and the
property appertaining thereto form one integrated whole and one cannot be
dissociated from the other. If, therefore, any liability is imposed on the trustees, such
liability must affect the trust property It is true that in the Tata Iron & Steel Co.'s case
this Court observed: " It is not necessary for us on this occasion to lay down any
broad proposition as to whether the theory of nexus, as a principle of legislation is
applicable to all kinds of legislation. It will be enough for disposing of the point now
under consideration, to say that this Court has found no apparent reason to confine its
application to income-tax legislation but has extended it to sales tax and to tax on
gambling."
We do not see any reason why the principles which were followed in The State of
Bombay v. R. M. D. Chamarbaugwala [AIR 1957 SC 699] should not be followed in
the present case. In R. M. D. Chamarbaugwala's case, it was found that the
respondent who was the organiser of a prize competition was outside the State of
Bombay; the paper through which the prize competition was conducted was printed
and published outside the State of Bombay, but it had a wide circulation in the State
of Bombay and it was found that "all the activities which the gambler is ordinarily
expected to undertake" took place mostly, if not entirely, in the State of Bombay.
These circumstances, it was held, constituted a sufficient territorial nexus which
entitled the State of Bombay to impose a tax on the gambling that took place within
its boundaries and the law could not be struck down on the ground of extra-
territoriality. We are of the opinion that the same principles apply in the present case
and the religious endowment itself being in Bihar and the trustees functioning there,
the Act applies and the provisions of the Act cannot be struck down on the ground of
extra- territoriality.
Comment: The key issue involved in this case is the application of the doctrine of
territorial nexus to see whether a law passed by the State is extraterritorial in nature.
The tests of real and not illusory nexus, and the pertinent connection, act as key
determinants in the application of the said test and determination of the question.
On Territorial Nexus – II
Case: GVK Industries v Income Tax Officer, (2011) 4 SCC 236 (Coram:
Kapadia, C.J, Sudershan Reddy, Radhakrishnan, Nijjar, Swatanter Kumar, JJ.)
The Appellant, GVK Industries, with the intention to utilize the expert services of
qualified and experienced professionals entered into an agreement with a Non-
Resident Company(NRC).Once they provided the services, the Income Tax
Department directed GVK to withold the payment of certain portion of monies being
paid to the foreign company as they were eligible to deduct TDS since the income
accrued within India as per Section 9(1)(vii)(b) of the IT Act. The main issue that was
raised before the Court in this case was whether the Parliament has the power under
Article 245 to legislate with respect to aspects or causes that occur, arise or exits or
may be expected to occur outside the territory of India.
Per Sudershan Reddy, J.:
[The Learned Judge started his analysis with the following observation about the
nature of Article 245:]
The subject in focus in the first part of Clause (1) of Article 245 is "the whole or any
part of the territory of India", and the object is to specify that it is the Parliament
which is empowered to make laws in respect of the same. [...]
The word that links the subject, "the whole or any part of the territory of India" with
the phrase that grants legislative powers to the Parliament, is "for". It is used as a
preposition. The word "for", when ordinarily used as a preposition, can signify a
range of meanings between the subject, that it is a preposition for, and that which
preceded it. [The Learned Judge refers to the Concise Oxford English Dictionary to
look at the different implications of the preposition “for”].
Consequently, the range of senses in which the word "for" is ordinarily used would
suggest that, pursuant to Clause (1) of Article 245, the Parliament is empowered
to enact those laws that are in the interest of, to the benefit of, in defence of, in
support or favour of, suitable or appropriate to, in respect of or with reference to
"the whole or any part of the territory of India".
[This interpretation advanced by the Learned Judge clearly negates the contention that
for such laws to be valid, the cause of action should have to arise “in” or “within”
India. The Learned Judge illustrates such extraterritorial laws which can be mutually
beneficial to India and the country where it is operational – such as global security
laws, laws having impact on trade, environment etc. He underlines through these
examples the global interdependence that has become the hallmark of the modern
interpretations of International Law. However, he also has a word of caution to offer:]
To claim the power to legislate with respect to extra-territorial aspects or causes, that
have no nexus with the territory for which the national legislature is responsible for,
would be to claim dominion over such a foreign territory, and negation of the
principle of self- determination of the people who are nationals of such foreign
territory, peaceful co-existence of nations, and co-equal sovereignty of nation-states.
Such claims have, and invariably lead to, shattering of international peace, and
consequently detrimental to the interests, welfare and security of the very nation-state,
and its people, that the national legislature is charged with the responsibility for.
Because of interdependencies and the fact that many extra- territorial aspects or
causes have an impact on or nexus with the territory of the nation-state, it would be
impossible to conceive legislative powers and competence of national parliaments as
being limited only to aspects or causes that arise, occur or exist or may be expected to
do so, within the territory of its own nation-state. Our Constitution has to be
necessarily understood as imposing affirmative obligations on all the organs of the
State to protect the interests, welfare and security of India. Consequently, we have to
understand that the Parliament has been constituted, and empowered to, and that its
core role would be to, enact laws that serve such purposes. Hence even those extra-
territorial aspects or causes, provided they have a nexus with India, should be
deemed to be within the domain of legislative competence of the Parliament,
except to the extent the Constitution itself specifies otherwise.
A question still remains, in light of the extreme conclusions that may arise on account
of the propositions made by the learned Attorney General. Is the Parliament
empowered to enact laws in respect of extra-territorial aspects or causes that
have no nexus with India, and furthermore could such laws be bereft of any
benefit to India? The answer would have to be no.
The word "for" again provides the clue. To legislate for a territory implies being
responsible for the welfare of the people inhabiting that territory, deriving the powers
to legislate from the same people, and acting in a capacity of trust. In that sense the
Parliament belongs only to India; and its chief and sole responsibility is to act as the
Parliament of India and of no other territory, nation or people. There are two related
limitations that flow from this. The first one is with regard to the necessity, and the
absolute base line condition, that all powers vested in any organ of the State,
including Parliament, may only be exercised for the benefit of India. All of its
energies and focus ought to only be directed to that end. It may be the case that an
external aspect or cause, or welfare of the people elsewhere may also benefit the
people of India. The laws enacted by Parliament may enhance the welfare of people in
other territories too; nevertheless, the fundamental condition remains: that the benefit
to or of India remain the central and primary purpose. That being the case, the logical
corollary, and hence the second limitation that flows thereof, would be that an
exercise of legislative powers by Parliament with regard to extra-territorial aspects or
causes that do not have any, or may be expected to not have nexus with India,
transgress the first condition. Consequently, we must hold that the Parliament's
powers to enact legislation, pursuant to Clause (1) of Article 245 may not extend
to those extra-territorial aspects or causes that have no impact on or nexus with
India.
[The Learned Judge refused to accept the Attorney General’s arguments that Article
245(2) is independent of Article 245(1), inasmuch as it is beyond the Judiciary’s
power to declare a law to be ultra vires the Constitution if it has extraterritorial
operation. The Learned Judge opined that such an interpretation would be striking at
the roots of the judiciary’s essential functions, and such interpretation would make the
clause “for the whole or any part of the Territory of India” completely redundant, “a
mere surplussage”. He went on to address the issues outlined in this case thus:]
(1) Is the Parliament constitutionally restricted from enacting legislation with respect
to extra-territorial aspects or causes that do not have, nor expected to have any, direct
or indirect, tangible or intangible impact(s) on or effect(s) in or consequences for: (a)
the territory of India, or any part of India; or (b) the interests of, welfare of, wellbeing
of, or security of inhabitants of India, and Indians?
The answer to the above would be yes. However, the Parliament may exercise its
legislative powers with respect to extra-territorial aspects or causes, events, things,
phenomena (howsoever commonplace they may be), resources, actions or
transactions, and the like, that occur, arise or exist or may be expected to do so,
naturally or on account of some human agency, in the social, political, economic,
cultural, biological, environmental or physical spheres outside the territory of India,
and seek to control, modulate, mitigate or transform the effects of such extra-
territorial aspects or causes, or in appropriate cases, eliminate or engender such extra-
territorial aspects or causes, only when such extra-territorial aspects or causes have, or
are expected to have, some impact on, or effect in, or consequences for: (a) the
territory of India, or any part of India; or (b) the interests of, welfare of, wellbeing of,
or security of inhabitants of India, and Indians. It is important for us to state and hold
here that the powers of legislation of the Parliament with regard to all aspects or
causes that are within the purview of its competence, including with respect to extra-
territorial aspects or causes as delineated above, and as specified by the Constitution,
or implied by its essential role in the constitutional scheme, ought not to be subjected
to some a-priori quantitative tests, such as "sufficiency" or "significance" or in any
other manner requiring a pre-determined degree of strength. All that would be
required would be that the connection to India be real or expected to be real, and not
illusory or fanciful. Whether a particular law enacted by Parliament does show such a
real connection, or expected real connection, between the extra-territorial aspect or
cause and something in India or related to India and Indians, in terms of impact, effect
or consequence, would be a mixed matter of facts and of law. Obviously, where the
Parliament itself posits a degree of such relationship, beyond the constitutional
requirement that it be real and not fanciful, then the courts would have to enforce such
a requirement in the operation of the law as a matter of that law itself, and not of the
Constitution.
(2) Does the Parliament have the powers to legislate "for" any territory, other than the
territory of India or any part of it?
The answer to the above would be no. It is obvious that Parliament is empowered to
make laws with respect to aspects or causes that occur, arise or exist, or may
be expected to do so, within the territory of India, and also with respect to extra-
territorial aspects or causes that have an impact on or nexus with India as explained
above in the answer to Question 1 above. Such laws would fall within the meaning,
purport and ambit of the grant of powers to Parliament to make laws "for the whole or
any part of the territory of India", and they may not be invalidated on the ground that
they may require extra-territorial operation. Any laws enacted by Parliament with
respect to extra- territorial aspects or causes that have no impact on or nexus with
India would be ultra vires, as answered in response to Question 1 above, and would
be laws made "for" a foreign territory.
Comment: This interpretation of the preposition “for” to mean “for the benefit of”
goes a long way in determining the scope and ambit of the extraterritorial application
of the Parliamentary laws, and an appropriate and timely redefinition of the Doctrine
of Territorial Nexus.
On the Doctrine of Harmonious Construction
Case: Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703

(Coram: Sinha, C.J., Jaffer Imam, Wanchoo, Shah, Ayyangar, Subba Rao, JJ.)
The case debated over the fixation of exclusive medium of instruction in University
Education by virtue of the Gujarat University Act, 1949 (amended in 1961) and
associated statutes, and the Legislative competence of the State Legislature therein.
The amendment to the Act had made Gujarati and Hindi as exclusive media of
instruction and examination, which was challenged by the Petitioner who wanted to
attend the classes in English. The questions to be determined in this case were, (1)
whether the Gujarat University had the power to prescribe Gujarati or Hindi or both as
exclusive medium or media of instruction and examination, (2) whether a legislation
authorising the University to impose such media was constitutionally valid in view of
Entry 66 of list I of the Seventh Schedule to the Constitution.
It was held that it was not correct to say that legislation prescribing the medium or
media of instruction in higher education and other instructions must fall within Item
11 of List II (Education, as it then stood, before it was taken over to the Concurrent
List) of the Seventh Schedule to the Constitution of India. The use of the expression
“subject to” in that Item clearly indicates that legislation in respect of matters
excluded by that Item could not under taken by the State Legislature and since
imposing of a regional language was excluded by it, the State Legislature was not
competent to impose it. In arriving at this conclusion, the Court makes use of the
Doctrine of Harmonious Construction.
Per Shah, J. (for himself and Sinha, C.J., Jaffer Imam, Wanchoo, Ayyanger, JJ.):
Two substantial questions survive for determination-(1) whether under the Gujarat
University Act, 1949, it is open to the University to prescribe Gujarati or Hindi or
both as an exclusive medium or media of instruction and examination in the affiliated
colleges, and (2) whether legislation authorising the University to impose such media
would infringe Entry 66 of List I, Seventh Schedule to the Constitution.
[After carefully scrutinising the provisions of the Act and the Statute, the Learned
Judge observed:]
Power of the Bombay Provincial Legislature to enact the Gujarat University Act was
derived from Entry No. 17 of the Government of India Act, 1935, List II of the
Seventh Schedule-"Education including Universities other than those specified in
paragraph 13 of List I". In List I item 13 were included the Benaras Hindu University
and the Aligarh Muslim University. Therefore, except to the extent expressly limited
by item 17 of List II read with item 13 of List I, a Provincial Legislature was invested
with plenary power to enact legislation in respect of all matters pertaining to
education including education at University level. The expression “education” is of
wide import and includes all matters relating to imparting and controlling education; it
may therefore have been open to the Provincial Legislature to enact legislation
prescribing either a federal or a regional language as an exclusive medium for
subjects selected by the University. If by s. 4 (27) the power to select the federal or
regional language as an exclusive medium of instruction had been entrusted by the
Legislature to the University, the validity of the impugned statutes 207, 208 and 209
could not be open to question. But the Legislature did not entrust any power to the
University to select Gujarati or Hindi as an exclusive medium of instruction under s. 4
(27). By the Constitution a vital change has been made in the pattern of distribution of
legislative powers relating to education between the Union Parliament and the State
Legislatures. By item No. 11 of List II of the Seventh Schedule to the Constitution,
the State Legislature has power to legislate in respect of "education including
Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of
List III". Item No. 63 of List I replaces with modification item No. 13 of List I to the
Seventh Schedule of the Government of India Act, 1935. Power to enact legislation
with respect to the institutions known at the commencement of the Constitution as the
Benaras Hindu University, the Aligarh Muslim University and the Delhi University
and other institutions declared by Parliament by laws to be an institution of national
importance is thereby granted exclusively to Parliament. Item 64 invests the
Parliament with power to legislate in respect of “institutions for scientific or technical
education financed by the Government of India wholly or in part and declared by
Parliament, by law, to be institutions of national importance". Item 65 vests in the
Parliament power to legislate for "Union agencies and institutions for (a) professional,
vocational or technical training, including the training of police officers; or (b) the
promotion of special studies or research; or (c) scientific or technical assistance in the
investigation or detection of crime". By item 66 power is entrusted to Parliament to
legislate on "co-ordination and determination of standards in institutions for higher
education or research and scientific and technical institutions". Item 25 of the
Concurrent List confers power upon the Union Parliament and the State Legislatures
to enact legislation with respect to "vocational and technical training of labour". It is
manifest that the extensive power vested in the Provincial Legislature to legislate with
respect to higher, scientific and technical education and vocational and technical
training of labour, under the Government of India Act is under the Constitution
controlled by the five items in List I and List III mentioned in item 11 of List II. Item
63 to 66 of List I are carved out of the subject of education and in respect of these
items the power to legislate is vested exclusively in the Parliament. Use of the
expression "subject to" in item 11 of List II of the Seventh Schedule clearly indicates
that legislation in respect of excluded matters cannot be undertaken by the State
Legislatures.[...] Power of the State to legislate in respect of education including
Universities must to the extent to which it is entrusted to the Union Parliament,
whether such power is exercised or not, be deemed to be restricted. If a subject
of legislation is covered by items 63 to 66 even if it otherwise falls within the
larger field of "education including Universities" power to legislate on that
subject must lie with the Parliament. The plea raised by counsel for the University
and for the State of Gujarat that legislation prescribing the medium or media in which
instruction should be imparted in institutions of higher education and in other
institutions always falls within item 11 of List II has no force. If it be assumed from
the terms of item 11 of List II that power to legislate in respect of medium of
instruction falls only within the competence of the State Legislature and never in the
excluded field, even in respect of institutions mentioned in items 63 to 65, power to
legislate on medium of instruction would rest with the State, whereas legislation in
other respects for excluded subjects would fall within the competence of the Union
Parliament. Such an interpretation would lead to the somewhat startling result that
even in respect of national institutions or Universities of national importance, power
to legislate on the medium of instruction would vest in the Legislature of the States
within which they Are situate, even though the State Legislature would have no other
power in respect of those institutions. Item 11 of List II and item 66 of List I must be
harmoniously construed. The two entries undoubtedly overlap: but to the extent of
overlapping, the power conferred by item 66 List I must prevail over the power
of the State under item 11 of List II. It is manifest that the excluded heads deal
primarily with education in institutions of national or special importance and
institutions of higher education including research, sciences, technology and
vocational training of labour. The power to legislate in respect of primary or
secondary education is exclusively vested in the States by item No. 11 of List II, and
power to legislate on medium of instruction in institutions of primary or secondary
education must therefore rest with the State Legislatures. Power to legislate in
respect of medium of instruction is, however, not a distinct legislative head; it
resides with the State Legislatures in which the power to legislate on education is
vested, unless it is taken away by necessary intendment to the contrary. Under
items 63 to 65 the power to legislate in respect of medium of instruction having
regard to the width of those items, must be deemed to vest in the Union. Power to
legislate in respect of medium of instruction, in so far it has a direct bearing and
impact upon the legislative head of co-ordination and determination of standards
in institutions of higher education or research and scientific and technical
institutions, must also be deemed by item 66 List I to be vested in the Union.
The State has the power to prescribe the syllabi and courses of study in the
institutions named in Entry 66 (but not falling within entries 63 to 65) and as an
incident thereof it has the power to indicate the medium in which instruction
should be imparted. But the Union Parliament has an overriding legislative
power to ensure that the syllabi and courses of study prescribed and the medium
selected do not impair standards of education or render the co-ordination of
such standards either on an All India or other basis impossible or even difficult.
Thus, though the powers of the Union and of the State are in the Exclusive Lists, a
degree of overlapping is inevitable. It is not possible to lay down any general test
which would afford a solution for every question which might arise on this head. On
the' one hand, it is certainly within the province of the State Legislature to prescribe
syllabi and courses of study and, of course, to indicate the medium or media of
instruction. On the other hand, it is also within the power of the Union to legislate in
respect of media of instruction so as to ensure co-ordination and determination of
standards, that is to ensure maintenance or improvement of standards. The fact that
the Union has not legislated, or refrained from legislating to the full extent of its
powers does not invest the State with the power to legislate in respect of a matter
assigned by the Constitution to the Union. It does not, however, follow that even
within the permitted relative fields there might not be legislative provisions in
enactments made each in pursuance of separate exclusive and distinct powers which
may conflict. Then would arise the question of repugnancy and paramountcy which
may have to be resolved on the application of the "doctrine of pith and substance" of
the impugned enactment. The validity of the State legislation on University
education and as regards the education in technical and scientific institutions not
falling within Entry 64 of List I would have to be judged having regard to
whether it impinges on the field reserved for the Union under Entry 66. In other
words, the validity of State legislation would depend upon whether it
prejudicially affects co-ordination and determination of standards, but not upon
the existence of some definite Union legislation directed to achieve that purpose.
If there be Union legislation in respect of co-ordination and determination of
standards, that would have paramountcy over the State law by virtue of the first part
of Art. 254(1); even if that power be not exercised by the Union Parliament the
relevant legislative entries being in the exclusive lists, a State law trenching upon the
Union field would still be invalid. [...]
There is nothing in the entry which indicates that the power to legislate on co-
ordination of standards in institutions of higher education does not include the power
to legislate for preventing the occurrence of or for removal of disparities in standards.
This power is not conditioned to be exercised merely upon the existence of a
condition of disparity nor is it a power merely to evaluate standards but not to take
steps to rectify or to prevent disparity. By express pronouncement of the Constitution
makers, it is a power to co-ordinate, and of necessity, implied therein is the power to
prevent what would make coordination impossible or difficult. The power is absolute
and unconditional, and in the absence of any controlling reasons it must be given full
effect according to its plain and expressed intention. It is true that "medium of
instruction" is not an item in the legislative list. It falls within item No. 11 as a
necessary incident of the power to legislate on education: it also falls within items 63
to 66. In so far as it is a necessary incident of the powers under item 66 List I it must
be deemed to be included in that item and therefore excluded from item 11 List II.
How far State legislation relating to medium of instruction in institutions has impact
upon co-ordination of higher education is a matter which is not susceptible, in the
absence of any concrete challenge to a specific statute, of a categorical answer.
Manifestly, in imparting instructions in certain subjects, medium may have
subordinate importance and little bearing on standards of education while in certain
others its importance will be vital. Normally, in imparting scientific or technical
instructions or in training students for professional courses like law, engineering,
medicine and the like existence of adequate text books at a given time, the existence
of journals and other literature, availability of competent instructors and the capacity
of students to understand instructions imparted through the medium in which it is
imparted are matters which have an important bearing on the effectiveness of
instruction and resultant standards achieved thereby. If adequate text-books are not
available or competent instructors in the medium, through which instruction is
directed to be imparted, are not available or the students are not able to receive or
imbibe instructions through the medium in which it is imparted, standard is must of
necessity fall, and legislation for co-ordination of standards in such matters would
include legislation relating to medium of instruction.
If legislation relating to imposition of an exclusive medium of instruction in a

regional language or in Hindi, having regard to the absence of textbooks and
journals, competent teachers and incapacity of the students to understand the
subjects, is likely to result in the lowering of standards, that legislation Would, in
our judgment, necessarily fall within item 66 of List I and would be deemed to be
excluded to that extent from the amplitude of the power conferred by item No.
11 of list II.
[With these observations, the Learned Judge decided to declare the impugned
provisions, imposing exclusive mediums of instructions, to be ultra vires the
Constitution. The clinching interpretative tool for such finding was the Doctrine of
Harmonious Construction, whereby the Court distinguished between the ambits of
Item 66, List I and Item 11, List II (as it then was)].
Per Subba Rao, J. (Dissenting):
Two questions arise for consideration, namely, (1) whether the State Legislature has
the constitutional competence to make a law prescribing an exclusive medium of
instruction in the affiliated colleges, and (2) whether under the Gujarat University
Act, as amended by Act IV of 1961, the said University has the power to prescribe an
exclusive medium of instruction. The first question maybe elaborated thus: Is the
State Legislature competent to make a law under entry 11 of List II of the Seventh
Schedule to the Constitution prescribing an exclusive medium of instruction in the
affiliated colleges of the University? To put it in other words, can a State law enable a
University to prohibit, expressly or by necessary implication, any media of instruction
other than those prescribed by it?
[The Learned Judge goes into a detailed analysis of the Doctrine of ‘Pith and
Substance’ and observes:]
When a question arises under what entry an impugned legislation falls, the court
directs its mind to ascertain the scope and effect of the legislation and its pith
and substance. Decided cases afford many criteria to ascertain its scope, namely,
comparison of conflicting entries, effect of the impugned legislation, its object and
purpose, its legislative history, its colourable nature and similar others all or some of
them would be useful guides to get at the core of the legislation. But no authority has
gone so far as to hold that even if the pith and substance of an Act falls squarely
within the ambit of a particular entry, it should be struck down on the speculative and
anticipatory ground that it may come into conflict with a law made by a co-ordinate
Legislature by virtue of another entry. If the impact of a State law on a Central subject
is so heavy and devastating as to wipe out or appreciably abridge the Central field,
then it may be a ground for holding that the State law is a colourable exercise of
power and that in pith and substance it falls not under the State entry but under the
Union entry. The case-law, therefore, does not warrant the acceptance of a new
doctrine dehors that of pith and substance.
[He goes on to observe that there is no dichotomy between the two entries provided in
the two lists, and therefore the situation is a fit case for application of the pith and
substance doctrine. He holds:]
We are not concerned with the question of medium of instruction in regard to that part
which has been specially carved out and included in entries 63, 64 and 65 of List I.
The entire field of education, including universities, subject to the exceptions
mentioned in entry 11 of List II, is entrusted to the State Legislature. There
cannot be education except through a medium or media of instruction.
Education can be imparted only through a medium. To separate them is to
destroy the concept. It is inconceivable that any reasonable body of constitution
makers would entrust the subject of medium of instruction to Parliament and
education dehors medium to a State: it is like cutting away the hand that feeds
the mouth. That no such separation was made in the case of elementary and
secondary education is conceded. It cannot also be doubted that medium of instruction
is also included in entry 63 of List I relating to the specified universities. If so much is
conceded, what is the reason for excluding it from the university education in entry 11
of List II? There is none. Conversely, the express terms of entry 66 of List I does not
prima facie take in the subject of medium of instruction. The phraseology is rather
wide, but none the less clear. Let me look at the two crucial expressions "co-
ordination" and "determination of standards". The contention of learned counsel for
the appellant that the composite term means fixing of standards for the purpose of
correlation and equating them if they vary, appears to be plausible, but is rather too
restrictive and, if accepted makes the role of Parliament that of a disinterested
spectator. It must be more purposive and effective. The interpretation sought to be put
upon it by learned counsel for the respondents, namely, that under certain
circumstances the Parliament can make a law displacing the medium of instruction
prescribed by the State law by another of its choice, cuts so deeply into the State entry
that it cannot be countenanced unless the entry in List I is clear and unambiguous. "To
determine" is "to settle, or decide or fix". The expression "coordination" is given the
following meanings, among others, in the dictionary: "to place in the same order, rank
or division to place in proper position relatively to each other and to the system of
which they form parts; to act in combined order for the production of a particular
result". That entry enables Parliament to make a law for fixing the standards in
institutions for higher education for the purpose of harmonious co-ordination of the
said institutions for the achievement of the desired result, namely, the improvement of
higher education. The expression “co-ordination and determination of standards"
is a composite term; and the fixing up of standards for the purpose of co-
ordination does not necessarily involve a particular medium of instruction. To
illustrate: education cannot be imparted effectively without books, professors,
students, equipment, buildings, finance, proper medium of instruction, etc. All the
said matters admittedly are comprehended by the word "education", for they are the
necessary concomitants of education. It would be unreasonable to hold that all the
said matters fall under the heading "co-ordination and determination of standards",
for, if it was so held, the entry "education” would be robbed of its entire content. In
such a case the principle of harmonious construction should be invoked and a
demarcating line drawn; the clue for drawing such a line is found in the word "co-
ordination". So understood, the State can make a law for imparting education and for
maintaining its standards; whereas Parliament can step in only to improve the said
standards for the purpose of co-ordination. The standards of some universities may
fall because of the deficiency in any of the aforesaid things. Parliament may make a
law providing for facilities in respect of any or all the aforesaid matters so that the
backward universities may pick up and come to the level of other advanced
universities. It may also make a law for raising the general standards of all the
universities. The law made by Parliament may determine the general standards in
respect of the said and similar matters and provide the necessary financial and other
help to enable the universities to reach the level prescribed. It may also be that the
said law may provide for a machinery to enrich the language adopted as a medium of
instruction by a particular university so that it may become a useful vehicle for higher
education and for technological and scientific studies. If the pith and substance of
the law is “co-ordination and determination of standards", its incidental
encroachment on the medium of instruction for the purpose of enriching it may
probably be sustained. But in the name of co-ordination it cannot displace the
medium of instruction, for, in that event, the encroachment on the subject of
education is not incidental but direct. For the said entry does not permit the making
of any law which allows direct interference by an outside body with the course of
education in any university, but enables it generally to prescribe standards and give
adventitious aids for reaching the said standards. In short, the role of a guardian angel
is allotted to Parliament so that it can make a law providing a machinery to watch,
advise, give financial and other help, so that the universities may perform their
allotted role. [...]
[Looking at the Constitutional provisions which provide for greater encouragement to

regional languages and gradual phasing out of English, he opines:]
It may [...] be accepted that the makers of the Constitution thought that the specified
regional languages would be suitable vehicles of instruction, though it may equally be
conceded that they require to be enriched to meet the demands of higher education. In
this context entry 66 of List I must be construed on the assumption that the regional
languages would be the media of instruction in all the universities, and if so construed
the law fixing the standards for co-ordination cannot displace the medium of
instruction. [...]
[He went on to uphold the constitutionality of the statutes in question].
Comment: The difference in the points of view of the majority and the dissent does
provide us an interesting insight into the interpretation of the Lists in Schedule VII
using two doctrines of interpretation – the Harmonious Construction and the Pith and
Substance Doctrines. While the first doctrine seeks to carve out independent sphere of
operation for the two rivalling entries, to be reconciled in many cases by phrases like
“subject to”, as was seen in this case, the latter doctrine overlooks the incidental
encroachments on to the others’ legislative field in upholding the constitutionality of a
statute if its core component falls within the legislative competence of the body which
has legislated upon it.
On Pith and Substance – I
Case: State of Rajasthan v. G. Chawla, AIR 1959 SC 544 (Coram: S.R. Das, C.J.,
S.K. Das, Gajendragadkar, Wanchoo, Hidaytullah, JJ.)
State of Rajasthan passed Ajmer (Sound Amplifiers Control) Act, 1952, which
controlled the use of sound amplifiers in the view of public health and tranquility.
This act was challenged on the grounds that Entry 31 of Union list confers power on
the parliament to make laws regarding “Posts and telegraphs; telephones, wireless,
broadcasting and other like forms of communication” and thus State is not
legislatively competent to make laws on this subject.
Per Hidayatullah, J.:
It becomes [...] necessary to examine closely how the Act is constructed and what it
provides. [Throwing light on the various provisions of the Act, the Learned Judge
observes:] The gist of the prohibition is the use of an external sound amplifier not
a component part of a wireless apparatus, whether in a public place or
otherwise, without the sanction in writing of the designated authority and in
disregard of the conditions imposed on the use thereof. It does not prohibit the
use in a place other than a public place of a sound amplifier which is a
component part of a wireless apparatus.
There can be little doubt that the growing nuisance of blaring loud-speakers powered
by amplifiers of great output needed control, and the short question is whether this
salutary measure can be said to fall within one or more of the Entries in the State List.
It must be admitted that amplifiers are instruments of broadcasting and even of
communication, and in that view of the matter, they fall within Entry 31 of the Union
List. The manufacture, or the licensing of amplifiers or the control of their ownership
or possession, including the regulating of the trade in such apparatus is one matter, but
the control of the 'use' of such apparatus though legitimately owned and possessed, to
the detriment of tranquillity, health and comfort of others is quite another. It cannot be
said that public health does not demand control of the use of such apparatus by day or
by night, or in the vicinity of hospitals or schools, or offices or habited localities. The
power to legislate in relation to public health includes the power to regulate the use of
amplifiers as producers of loud noises when the right of such user, by the disregard of
the comfort of and obligation to others, emerges as a manifest nuisance to them. Nor
is it any valid argument to say that the pith and substance of the Act falls within Entry
31 of the Union List, because other loud noises, the result of some other instruments,
etc., are not equally controlled and prohibited.
The pith and substance of the impugned Act is the control of the use of
amplifiers in the interests of health and also tranquillity, and thus falls
substantially (if not wholly) within the powers conferred to preserve, regulate
and promote them and does not so fall within the Entry in the Union List, even
though the amplifier, the use of which is regulated and controlled is an
apparatus for broadcasting or communication.
[He concludes by stating that:]
On a view of the Act as a whole, we think that the substance of the legislation is
within the powers conferred by Entry No. 6 and conceivably Entry No. 1 of the State
List" and it does not purport to encroach upon the field of Entry No. 31, though it
incidentally touches upon a matter provided there. The end and purpose of the
legislation furnishes the key to connect it with the State List.
[Thus, he decides that the impugned law is constitutional].
Comment: This decision is a very good example of the use of the ‘Pith and
Substance’ Doctrine in the context of interpretation of the lists. This doctrine
acknowledges the fact that while wither the state or the union parliament passes a law
which it is competent to do, there can be incidental overlaps with the other’s
legislative domain. But, so long as this encroachment is not substantial, it can be
overlooked and the constitutionality of the impugned law can be upheld. This is what
was exactly done in te instant case as well.
On Pith and Substance – II
Case: State Of Karnataka v. M/S. Drive-In Enterprises, AIR 2001 SC 1328

(Coram: Khare, Ruma Pal, JJ.)
The State of Karnataka imposed tax by virtue of the Karnataka Cinemas (Regulation)
Act, 1964 on the cars, which were admitted in the Drive-In theatre, an open theatre
where a person can enjoy a cinema, while sitting in the car. When the constitutionality
of such taxation was challenged, one of the primary questions that arose for the
Court’s consideration is whether State legislature can impose entertainment tax on the
cars. The primary contention raised by the Drive-In Enterprises was that the Drive- in-
Theatre is a different category of cinema unlike cinema houses or theatres where a
person can view the film exhibited therein while sitting in his car. Therefore, the
admission of cars/motor vehicles into Drive-in theatre is incidental and part of
concept of Drive-in-Theatre, and therefore, the State Legislature is not competent to
levy entertainment tax on admission of motor vehicles inside the Drive-in theatre. It
was also argued that the incidence of tax being on the entertainment, the State
Legislature is competent to enact law imposing tax only on person entertained. In nut-
shell, the argument is that the State Legislature can levy entertainment tax on human
beings and not on any inanimate object like a vehicle.
Per Khare, J.:
On the arguments of learned counsel of parties, the question arises as to whether the
State Legislature is competent to enact law to levy tax under Entry 62 of List II of
Seventh Schedule [Taxes on luxuries, including taxes on entertainments, amusements,
betting and gambling] on admission of cars/motor vehicles inside the Drive-in-
Theatre.
Where as in the present case, the vires of an enactment is impugned on the ground
that the State Legislature lacks power to enact such an enactment, what the Court is
required to ascertain is the true nature and character of such an enactment with
reference to the power of the State Legislature to enact such a law. While
adjudging the vires of such an enactment, the Court must examine the whole
enactment, its object, scope and effects of its provision. If on such adjudication it
is found that the enactment falls substantially on a matter assigned to the State
Legislature, in that event such an enactment must be held to be valid even
though nomenclature of such an enactment shows that it is beyond the
competence of the State Legislature. In other words, when a levy is challenged, its
validity has to be adjudged with reference to the competency of the State Legislature
to enact such a law, and while adjudging the matter what is required to be found out is
the real character and nature of levy. In sum and substance, what is to be found out is
the real nature of levy, its pith and substance and it is in this light the competency of
the State Legislature is to be adjudged. The doctrine of pith and substance means
that if an enactment substantially falls within the powers expressly conferred by
the Constitution upon the Legislature, it cannot be held to be ultra vires merely
because its nomenclature shows that it encroaches upon matters assigned to
another heading of legislation. The nomenclature of a levy is not conclusive for
determining its true character and nature.
[Coming to the facts of the instant case, the Learned Judge held:]
Entry 62 of List II of Seventh Schedule empowers the State Legislature to levy tax on
luxuries, entertainment, amusements, betting and gambling. Under Entry 62, the State
Legislature is competent to enact law to levy tax on luxuries and entertainment. The
incidence of tax is on entertainment. Since entertainment necessarily implies the
persons entertained, therefore, the incidence of tax is on the person entertained.
Coming to the question whether the State Legislature is competent to levy tax on
admission of cars/motor vehicles inside the Drive-in-Theatre especially when it is
argued that cars/motor vehicles are not the persons entertained. Section 3 which is
charging provision, provides for levy of tax on each payment of admission. Thus,
under the Act, the State is competent to levy tax on each admission inside the Drive-
in-Theatre. The challenge to the levy is on the ground that the vehicle is not a person
entertained and, therefore, the levy is ultra vires. It cannot be disputed that the car or
motor vehicle does not go inside the Drive-in-Theatre of its own. It is driven inside
the Theatre by the person entertained. In other words the person entertained is
admitted inside the Drive-in Theatre along with the car/motor vehicle. Thereafter the
person entertained while sitting in his car inside the auditorium views the film
exhibited therein. This shows that the person entertained is admitted inside the Drive-
in Theatre along with the car/motor vehicle. This further shows that the person
entertained carries his car inside the Drive-in-Theatre in order to have better quality of
entertainment. The quality of entertainment also depends on with what comfort the
person entertained has viewed the cinema films. Thus, the quality of entertainment
obtained by a person sitting in his car would be different from a squatter viewing the
film show. The levy on entertainment varies with the quality of comfort with which a
person enjoys the entertainment inside the Drive-in-Theatre. In the present case, a
person sitting in his car or motor vehicle has luxury of viewing cinema films in the
auditorium. It is the variation in the comfort offered to the person entertained for
which the State Government has levied entertainment tax on the person entertained.
The real nature and character of impugned levy is not on the admission of cars
or motor vehicles, but the levy is on the person entertained who takes the car
inside the theatre and watches the film while sitting in his car. We are, therefore,
of the view that in pith and substance the levy is on the person who is
entertained. Whatever be the nomenclature of levy, in substance, the levy under
heading admission of vehicle is a levy on entertainment and not on admission of
vehicle inside the Drive-in-Theatre. As long as in pith and substance the levy
satisfies the character of levy, i.e. entertainment, it is wholly immaterial in what
name and form it is imposed. The word entertainment is wide enough to
comprehend in it, the luxury or comfort with which a person entertains himself.
Once it is found there is a nexus between the legislative competence and subject
of taxation, the levy is justified and valid. We, therefore, find that the State
Legislature was competent to enact sub-clause (v) of clause (i) of Section 2 of the Act.
We accordingly hold that the impugned levy is valid.
Comment: This case is another example where the Court looks at the true nature and
character of the law, and not the nomenclature, for determining the legislative
competence of the State.
On the Doctrine of Colourable Legislations
Case: K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 (Coram:
Patanjali Sastri, C.J., Mukherjea, S.R. Das, Hasan, N.H. Bhagwati, JJ.)
The Orissa Estates Abolition Act, 1952 provided that when estates would be acquired
by the government, the computation of the net income of the estate will be made by
deducting the pending agricultural income tax from the previous year from the gross
asset of the estate. The point to be noted in this context is that in 1950, the Orissa
Agricultural Income-Tax Act, 1947 was amended and the highest tax rate was
significantly increased and the highest tax slab was drastically lowered.
It was contended by the petitioner that the Orissa Agricultural Income-tax
(Amendment) Act of 1950 was a fraud on the Constitution and as such invalid as it
was a colourable legislation to effect a drastic reduction in the compensation payable
under the Orissa Estates Abolition Act, 1952. We will confine our discussion to the
issue of Colourable Legislation here.
Per Mukherjea, J.:
As the question [of colourable legislation] is of some importance and is likely to be

debated in similar cases in future, it would be necessary to examine the precise scope
and meaning of what is known ordinarily as the doctrine of "colourable legislation". It
may be made clear at the outset that the doctrine of colourable legislation does not
involve any question of bona fides or mala fides on the part of the legislature.
The whole doctrine resolves itself into the question of competency of a particular
legislature to enact a particular law. If the legislature is competent to pass a
particular law, the motives which impelled it to act are really irrelevant. On the other
hand, if the legislature lacks competency, the question of motive does not arise at all.
[...] If the Constitution of a State distributes the legislative powers amongst different
bodies, which have to act within their respective spheres marked out by specific
legislative entries, or if there are limitations on the legislative authority in the shape of
fundamental rights, questions do arise as to whether the legislature in a particular case
has or has not, in respect to the subject matter of the statute or in the method of
enacting it, transgressed the limits of its constitutional powers. Such transgression
may be patent, manifest or direct, but it may also be disguised, covert and
indirect and it is to this latter class of cases that the expression "colourable
legislation" has been applied in certain Judicial pronouncements. The idea
conveyed by the expression is that although apparently a legislature in passing a
statute purported to act within the limits of its powers, yet in substance and in
reality it transgressed these powers, the transgression being veiled by what
appears, on proper examination, to be a mere presence or disguise. [...]
In other words, it is the substance of the Act that is material and not merely the
form or outward appearance, and if the subject-matter in substance is something
which is beyond the powers of that legislature to legislate upon, the form in
which the law is clothed would not save it from condemnation. The legislature
cannot violate the constitutional prohibitions by employing an indirect method. In
cases like these, the enquiry must always be as to the true nature and character of the
challenged legislation and it is the result of such investigation and not the form alone
that will determine as to whether or not it relates to a subject which is within the
power of the legislative authority. For the purpose of this investigation the court could
certainly examine the effect of the legislation and take into consideration its object,
purpose or design. But these are only relevant for the purpose of ascertaining the true
character and substance of the enactment and the class of subjects of legislation to
which it really belongs and not for finding out the motives which induced the
legislature to exercise its powers.
[However, turning to the statute under scrutiny, the Learned Judge refused to read in
any colourability in its contents. He observed:]
The contention of [the Counsel for the petitioner] really is that though apparently it
purported to be a taxation statute coming under entry 46 of List II, really and in
substance it was not so. It was introduced under the guise of a taxation statute with a
view to accomplish an ulterior purpose, namely, to inflate the deductions for the
purpose of valuing an estate so that the compensation payable in respect of it might be
as small as possible. Assuming that it is so, still it cannot be regarded as a colourable
legislation in accordance with the principles indicated above, unless the ulterior
purpose which it is intended to serve is something which lies beyond the powers of
the legislature to legislate upon. The whole doctrine of colourable legislation is
based upon the maxim that you cannot do indirectly what you cannot do
directly. If a legislature is competent to do a thing directly, then the mere fact
that it attempted to do it in an indirect or disguised manner, cannot make the
Act invalid. Under entry 42 of List III which is a mere head of legislative power the
legislature can adopt any principle of compensation in respect to properties
compulsorily acquired. Whether the deductions are large or small, inflated or deflated
they do not affect the constitutionality of a legislation under this entry. The only
restrictions on this power, as has been explained by this court in the earlier cases, are
those mentioned in article 31(2) of the Constitution and if in the circumstances of a
particular case the provision of article 31(4) is attracted to a legislation, no objection
as to the amount or adequacy of the compensation can at all be raised. The fact that
the deductions are unjust, exorbitant or improper does not make the legislation
invalid, unless it is shown to be based on something which is unrelated to facts. [...] It
may appear on scrutiny that the real purpose of a legislation is different from
what appears on the face of it, but it would be a colourable legislation only if it is
shown that the real object is not attainable to it by reason of any constitutional
limitation or that it lies within the exclusive field of another legislature. The result
is that in our opinion the Orissa Agricultural Income-tax (Amendment) Act of 1950
could not be held to be a piece of colourable legislation, and as such invalid.
Comment: Although this case does not strike down the impugned law as invalid
based on the Doctrine of Colourable Legislation, it nevertheless introduces the
doctrine in determination of issues of legislative competence. Thus, if the Union or
the State indirectly tries to encroach into the legislative domain of the other, this
Doctrine can be very well used to strike down such encroachments.
On Residuary Powers
Case: Union of India v. Harbhajan Singh Dhillon, AIR 1972 SC 1061 (Coram:
Sikri, C.J., Roy, Palekar, Mitter, Shelat, Ray, Dua, JJ.)
This case required the Court to investigate the Legislative Competence of the Union
Parliament to pass the Amendment of 1969 to the Wealth Tax Act, 1959 which
included the “Capital Value of Agricultural Land” for the purpose of calculation of
net wealth. The respondent argued that this law is beyond the legislative competence
of the Parliament in view of Entry 86, List I which mentions “Taxes on the capital
value of the assets, exclusive of agricultural land, of individuals and companies;
taxes on the capital of companies.” In fact, the respondent argued that such tax could
only be imposed by the States in view of Entry 49, List II which mentions “Taxes on
lands and buildings”. On the other hand, the Union of India argued that despite the
exclusion from Entry 86, the said subject matter fell within the legislative competence
of the Union because after the exclusion of the said subject matter from Entry 86,
there was no corresponding inclusion into any list. In this context, the argument
advanced was that such provisions could be covered by the residuary powers of
legislation provided with the Union Parliament by virtue of Article 248 and Entry 97,
List I. Naturally, the Union also refuted the argument based on Entry 49, List II,
arguing that the same is not applicable in this case.
Per Sikri, C.J. (for himself and Roy, Palekar, JJ.):
It seems to us that the best way of dealing with the question of the validity of the
impugned Act and with the contentions of the parties is to ask ourselves two
questions; first, is the impugned Act legislation with respect to entry 49 List II? and
secondly, if it is not, is it beyond the legislative competence of Parliament? We have
put these questions in this order and in this form because we are definitely of the
opinion, as explained a little later, that the scheme of our Constitution and the
actual terms of the relevant articles, namely, Art. 246, Art. 248 and entry 97 List
I, show that any matter, including tax, which has not been allotted exclusively to
the State Legislatures under List II or concurrently with Parliament under List
III, falls within List I, including entry 97 of that list read with Art. 248. [...]
There does not seem to be any dispute that the Constitution makers wanted to give
residuary powers of legislation to the Union Parliament. Indeed, this is obvious
from Art. 248 and entry 97 List I. But there is a serious dispute about the extent of the
residuary power. It is urged on behalf of the respondent that the words "exclusive of
agricultural land" in entry 86 List I were words of prohibition, prohibiting Parliament
from including capital value of agricultural land in any law levying tax on capital
value of assets. Regarding entry 97 List I it is said that if a matter is specifically
excluded from an entry in List I, it is apparent. that it was not the intention to include
it under entry 97 List I; the words "exclusive of agricultural land" in entry 86 by
themselves constituted a matter and therefore they could not fall within the words
"any other matter" in entry 97 List I. Our attention was drawn to a number of entries
in List I where certain items have been excluded from List I. [Several examples were
cited in this context]. It was urged that the object of these, exclusions was to
completely deny Parliament competence to legislate on these excluded matters.
It will be noticed that all the matters and taxes which have been excluded, except
taxes on the capital value of agricultural land under entry 86 List I fall
specifically within one of the entries in List II. [...] It seems to us that from this
scheme of distribution it cannot be legitimately inferred that taxes on the capital value
of agricultural land were designedly excluded from entry 97 List I. [...]
If the residuary subjects had ultimately been assigned to the States could it have been
seriously argued that vis-a-vis the States the matter of Taxes on "Capital value of
agricultural land" would have been outside the powers of States? Obviously not, If so,
there can be no reason for excluding it from the residuary powers ultimately conferred
on Parliament. The content of the residuary power does not change with its
conferment on Parliament. It may be that it was thought that a tax on capital value of
agricultural land was included in entry 49 List II. This contention will be examined a
little later. But if on a proper interpretation of entry 49 List II, read in the light of
entry 86 List I, it is held that tax on the capital value of agricultural land, is not
included within entry 49 List II or that the, tax imposed by the impugned statute does
not fall either in entry 49 List II or entry 86 List I, it would be arbitrary to say that it
does not fall within entry 97 List I. We find it impossible to limit the width of art.
248 and entry 97 List I by the words "exclusive of agricultural land" in entry 86
List I. We do not read the words "any other matter" in entry 97 to mean that it
has any reference to topics excluded in entries 1-96 List I. It is quite clear that
the words "any other matter" have reference to matters on which the Parliament
has been given power to legislate by the enumerated entries 1-96 List I and not to
matters on which it has not been given power to legislate. The matter in entry 86
List I is the whole entry and not the entry without the, words "exclusive of
agricultural land". The matter in entry 86 List I again is not tax on capital value of
assets but the whole entry. [He gives instances to substantiate this point]. It seems to
us that the function of Art. 246 (1), read with entries 1-96 List I, is to give positive
power to Parliament to legislate in respect, of these entries. Object is not to debar
Parliament from legislating on a matter, even if other provisions of the Constitution
enable it to do so. Accordingly, we do not interpret the words "any other matter"
occurring in entry 97 List I to mean a topic mentioned by way of exclusion.
These words really refer to the matters contained in each of the entries 1 to 96.
The words "any other matters' had to be used because entry 97 List I follows
entries 1-96 List I. It is true that the field of legislation is demarcated by entries 1-96
List I, but demarcation does not mean that if entry 97 List I confers additional powers
we should refuse to give effect to it. At any rate, whatever doubt there may be on
the interpretation of entry 97 List I is removed by the wide terms of Art. 248. It
is framed in the widest possible terms. On its terms the only question to be asked
is: Is the matter sought to be legislated on included in List II or in List III or is
the tax sought to be levied mentioned in List III or in List III ? No question has
to be asked about List I. If the answer is in the negative, then it follows that
Parliament has power to make laws with respect to that matter or tax. [...]
We are compelled to give full effect to Art. 248 because we know of no principle
of construction by which we can cut down the wide words of a substantive article
like Art. 248 by the wording of an entry in Schedule VII. If the argument of the
respondent is accepted, Art. 248 would have to be re- drafted as follows "Parliament
has exclusive power to make any law with respect to any matter not mentioned in the
Concurrent List or State List, provided it has not been mentioned by way of exclusion
in any entry in List I." We simply have not the power to add a proviso like this to Art.
248.
[The Learned Chief Justice rejected the Entry 49 List II argument raised by the
respondent because in his opinion, “the tax under entry 49, List II is not a personal tax
but a tax on property”. He finally went on to declare this law as constitutionally valid
as in his opinion, the subject matter of Wealth Tax exclusively fell within the ambit of
Entry 97 and was therefore very much within the legislative competence of the
Union].
Per Mitter, J.(separate concurring opinion):
We have [...] to find out the legislative entry to which the said Act conforms. If one
were to ignore Entry 97 in List 1, the only entry which might suggest itself would be
Entry 86 and there would be no entry either in List II or List III carrying such a
suggestion unless one was to take the view that Entry 49 in List II would comprehend
that portion of the wealth of an individual which had its base in lands and buildings.
We may therefore examine the true scope of the two entries, viz., Entry 49 in List II
and Entry 86 in, List I. If the Act does not fall in any of these two entries, it must be
covered by Entry 97 in List I and be within the legislative competence of Parliament
under Art. 248 of the Constitution. Under the express words of clause, (1) of Art.
248 one has only to consider whether the subject matter of legislation is comprised in
List II or List III: if it is not, Parliament is competent to legislate on it irrespective of
the inclusion of a kindred subject in List I or the specified limits of such subject in
this List.
[The Learned Judge narrated the trajectory of cases on this issue and concluded:]
The various decisions and authorities cited above which bear on the true meaning of
the expression "capital value of assets" make it amply clear that the same can only
mean the market value of the assets less any encumbrances charged thereon. The
expression does not take in either the general liabilities of the individual owning them
or in particular the debts owed in respect of them. In my view, the subject matter of
legislation by Wealth Tax Act is not covered by Entry 86 but by Entry 97 of List I.
[...] The subject matter of wealth tax including or excluding agricultural lands
etc. is not covered by Entry 86 of List I read with Art. 246 of the Constitution,
but by Entry 97 of List I read with Art. 248. Although read by itself Entry 97
may seem to suggest that the expression "any other matter" has reference to the
other entries in List I, Art. 248(1) makes it clear beyond doubt that such matters
are those which are not covered by entries in List II or List III. [...]
Per Shelat, J. (Dissenting, for himself, Ray and Dua, JJ.):
[He scrupulously analysed Entry 86 List I and opined:]
If the [...] power to levy a tax on the capital value of agricultural land is not to be
found in Art. 246(1) read with entry 86 of List I by reason of exclusion therefrom of
agricultural land, the question is, where else is that power located, if at all it is vested
in Parliament ?
On that question, counsel for the Union urged two contentions. The first was that it is
independently located in Art. 248 read with entry 97 of List I. The second was that
that Article is clearly akin to s. 91 of the British North America Act 1867, and confers
residuary powers on Parliament with respect to any matter not dealt with in List II or
List III. The argument, therefore, was that if a matter is not in either of those two
Lists, it must necessarily be held to be with Parliament. Obviously, it cannot be found
in List III as that List contains no entry dealing with taxes. Therefore, once it is found
that there is no such power in List II, it must necessarily be with Parliament. Since the
power to tax on the capital value of all assets including agricultural land is neither in
entry 49 of List II nor in entry 86 of List I, the power falls within the residuary power
independently granted under Art. 248(2). [...] [H]e urged that since a tax on the capital
value of assets including agricultural land cannot fall under that entry and the States
obviously have no power to impose such a tax on the total assets of a person under
entry 49 of List II or any other entry in that List, the amending Act must fall
under Art. 248(2) and/or entry 97 of List I. Counsel for the respondent refuted the
correctness of both the contentions and .argued (a) that the power to impose a tax on
the capital value of agricultural land is reserved in entry 49 in List II, (b) that the
power to impose a tax on the capital value of assets held by a person has been
enumerated, mentioned and dealt with in entry 86 of List I, which in doing so
expressly excludes agricultural land from its ambit, and that that being so, Art.
248(2) providing residuary power cannot be construed to confer a power which,
though conferred under a specific entry, has been deliberately, under the scheme of
distribution of powers, excluded, and (c) that entry 86 of List I lays down a
restrictions which restriction prevents imposition of such a tax including that on
agricultural land under any other entry including entry 97 of List I.
Art. 248 by its first clause confers on Parliament exclusive power to make, a law with
respect to any matter not enumerated in List III or List II and by its second clause
includes in such power the power of imposing a tax not mentioned in either of those
Lists. Entry 97 in List I which sets out the field of legislation and taxation under Art.
248 reads as follows "Any other matter not enumerated in List II or List III including
any tax not mentioned in either of those Lists."
The argument was that the amending Act which deleted the exclusion of agricultural
land and thereby included such property within the sweep of the wealth-tax is
competent by reason of the fact that the Power to impose a tax on the capital value of
all assets including agricultural land is neither to be found in entry 86 of List I, nor in
entry 49 of List II, nor in List III, and therefore, it falls in entry 97 of List I by reason
of the residuary power conferred on Parliament by Art. 248(2). Such a contention in
our opinion is not acceptable. [...]
The Constitution by Art. 246(1) has had already granted exclusive power of
legislation and taxation to Parliament in matters set out in entries 1 to 96 in List I.
Any State law entrenching in its pith and substance upon a Parliamentary Act would
be invalid. Having so provided in respect of List I, the only matters left for legislation
would be those in Lists II and III and such of the matters not to be found in those two
lists. The last, therefore, could only be the residuary matters in respect of which
exclusive power had to be granted to Parliament. This must mean that a field of
legislation not dealt with in any of the three lists only could be the subject-matter
of residuary power under Art. 248. Such a construction of Art. 248 is in consonance
with the construction given by the Federal Court to s. 104 of the Government of India
Act, 1935, following which Art. 248 was framed and also with the words of entry 97
in List I. The words in that entry, viz., "any other matter not enumerated in List
II or List III must mean any matter not being in the entries preceding if, that is,
entries 1 to 96 in List I and any matter not enumerated in List II and List III.
The residuary power declared by, Art. 248, and of which the field is defined in
entry 97 of List I, must, therefore, be the power in respect of a field or category
of legislation not to be found in any one of the three Lists. Taxes such as the Gift
tax, the expenditure tax and the Annuity deposit scheme are matters which are not to
be found in any of the three lists, and therefore, enactments in regard to them would
fall, without doubt, under Art. 248 read with entry 97 of List I.
But, can it be said that a tax on the capital value of assets including agricultural land is
one, such tax, not mentioned in any of the three lists, and therefore, falls under entry
97 of List I? [...] It was [...] passed under Art. 246(1) on a matter enumerated in List I
in respect of which Parliament had exclusive power. In deciding the question as to the
provision under which it was enacted, the distinction between the subject matter of the
Act and the scope of power in respect of it has to be observed. The subject-matter of
the Act is, as aforesaid, the capital value of the total assets; its scope or field of
operation is the capital value of all the assets excluding agricultural land. It is
impossible to say that the exclusion of agricultural land in the entry splits the matter
into two matters, the permissible and the excluded. The matter is one, viz., the capital
value of all assets except that the power in relation to it is restricted by the exclusion
therefrom of one kind of asset. Consequently, it is impossible to say that there are two
matters, one permissible under entry 86 in List I and the other not enumerated
anywhere else and therefore falling under Art. 248 and/or entry 97 in that List. If it
were so, as contended, the restriction in entry 86 in regard to agricultural land had no
meaning. Such a contention would mean that though the draftsman excluded
agricultural land from entry 86 of List I, his intention was to nullify that
exclusion by including that exclusion in the same breath in the residuary field
in Art. 248 and entry 97. But, it was said that if the interpretation of entries 86 and,
97 in List I, we commend, were to be true, it would mean that neither Parliament nor
the State Legislatures can ever levy wealth-tax on the capital value of all the assets
including agricultural land held by an assessee. It is true that under entry 86 of List I
Parliament cannot include agricultural land within the purview of the tax imposed
under that entry. Nor can a State Legislature impose such a tax under entry 49 in List
II. This does not mean that a tax on the capital value of agricultural land cannot at all
be imposed. Such a power is contained in entry 49, List II. But there is nothing
surprising in such a consequence, for, even in the matter of income-tax, neither of
them can impose that tax on the entire income of an assessee. Parliament cannot do so
because of the restriction in entry 82 in List I; the. States cannot impose such a tax as
their power is restricted to agricultural income only under entry 46 in List II. That is
also the case in the matter of succession and estate duties. The power of both the
Legislatures to make a law or impose a tax on any one of the matters in these entries
is restricted, though within the field allocated to each of them, each has a plenary
power. The restriction to such a power may, as already stated, be on account of
distribution of power, in respect of a particular field of legislation between the Union
and the State Legislatures or because the topic or field of legislation is itself hedged
by conditions for reasons of policy. But that does not mean that the excluded or the
restricted field, in respect of which either both the Legislatures have no power or one
or the other has no power, can be said to fall under the provision providing residuary
power. Once a topic or a field of legislation is enumerated and dealt with in any
one of the entries in one of the Lists, whether the topic is in its entirety or
restricted, there is no question of the residuary provision being resorted to on the
ground that it operates on the remainder. Such a construction would either
nullify the intention to confer power only on the partial field of the topic of
legislation in question or set at naught the delicate system of distribution of
power effected through the three elaborately worded Lists.
[Finally, he went on to hold:]
In this view, we are unable to accept the contentions urged on behalf of the Union.
The amending Act, in our opinion, fell under entry 86 of List I, and not
under Art. 248 and/or entry 97 of List I. It follows that the impugned Act, by
reason of the restricted field in entry 86, List I, suffered from legislative competence.
Comment: The key outcome of this decision is that even if a particular subject matter
is excluded from the ambit of an entry of the Union List, it can nevertheless be
competent for the Parliament to legislate on that subject matter if there is no
corresponding inclusion in the State or the Concurrent List. This allocation of the
residuary powers and such interpretation of the exclusion (much to the chagrin of
Shelat, J., who argues an express exclusion should not automatically allow a
corresponding inclusion into a residuary clause) goes on to further underline the
distinct unitary tilt of the Indian model of Federalism.
On the Application of the Doctrine of Repugnancy
Case: Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019 (Coram:

Sen, Venkataramiah, Misra, JJ.)
Section 5 of the Bihar Finance Act, 1981, provided for the levy of a surcharge, in
addition to the taxes payable, on every drug dealer whose turnover exceeded a certain
amount. This surcharge, unlike other taxes, could not be collected from the purchaser.
The Act mentions that its provisions relate to Entry 54 of the State List of the Seventh
Schedule. This case challenged the constitutional validity of this section, inter alia, on
the ground that since the sale price of all essential commodities is fixed by the Central
Government by control orders issued under the Essential Commodities Act, there
would be repugnancy between the State and Central laws.
The primary issue of contention before the Court in this case was to decide the scope
and ambit of the Doctrine of Repugnancy, as has been provided for, in Article 254 of
the Constitution. Two contrasting views had been put forward for its interpretation –
both sufficiently logical and persuasive. One view was that the Doctrine of
Repugnancy could be attracted if there was a conflict between any law passed by the
State was in conflict with “any provision of a law made by Parliament which
Parliament is competent enact” – thereby meaning that the doctrine would be attracted
even if there is a conflict between a Union List Law and a State List Law. On the
other hand, the other interpretation took the entire width of Article 254(1) into
consideration by holding that the Doctrine necessitated that the two laws in question
be “with respect to one of the matters enumerated in the Concurrent List”. The Court
in this case accepted this second line of argument. The relevant portions are excerpted
below.
Per Sen, J.:
The words "Notwithstanding anything contained in clauses (2) and (3)” in Art. 246
(l) and the words "Subject to clauses (1) and (2)" in Art. 246(3) lay down the principle
of Federal supremacy viz. that in case of inevitable conflict between Union and State
powers, the Union power as enumerated in List I shall prevail over the State power as
enumerated in List II and III, and in case of overlapping between List II and III, the
former shall prevail. But the principle of Federal supremacy laid down in Art.
246 of the Constitution cannot be resorted to unless there is an "irreconcilable"
conflict between the Entries in the Union and State Lists. In the case of a seeming
conflict between the Entries in the two lists, the Entries should be read together
without giving a narrow and restricted sense to either of them. Secondly, an
attempt should be made to see whether the two Entries cannot be reconciled so as to
avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation
can be achieved by giving to the language or the Union Legislative List a meaning
which, if less wide than it might in another context bear, is yet one that can properly
be given to it and equally giving to the language of the State Legislative List a
meaning which it can properly bear. The non-obstante clause in Art. 246(l) must
operate only if such reconciliation should prove impossible. Thirdly, no question
of conflict between the two lists will arise if the impugned legislation, by the
application of the doctrine of "pith and substance" appears to fall exclusively under
one list, and the encroachment upon another list is only incidental.
Union and State Legislatures have concurrent power with respect to subjects
enumerated in List III, subject only to the provision contained in cl. (2) of Art. 254 i.e.
provided the provisions of the State Act do not conflict with those of any Central
Act on the subject. However, in case of repugnancy between a State Act and a Union
Law on a subject enumerated in List III, the State law must yield to the Central law
unless it has been reserved for the assent of the President and has received his assent
under Art. 254(2). The question of repugnancy arises only when both the
Legislatures are competent to legislate in the same field i.e. when both the Union
and the State laws relate to a subject specified in List III and occupy the same
field.
[The Learned Judge went on to elaborate on the Doctrine of Repugnancy and Article
254, thus:]
Art. 254 of the Constitution makes provision first, as to what would happen in the
case of conflict between a Central and State law with regard to the subjects
enumerated in the Concurrent List, and secondly, for resolving such conflict. Art.
254(1) enunciates the normal rule that in the event of a conflict between a Union and
a State law in the concurrent field, the former prevails over the latter. Cl. (1) lays
down that if a State law relating to a concurrent subject is 'repugnant' to a Union law
relating to that subject, then, whether the Union law is prior or later in time, the Union
law will prevail and the State law shall, to the extent of such repugnancy, be void. To
the general rule laid down in cl. (1), cl. (2) engrafts an exception, viz., that if the
President assents to a State law which has been reserved for his consideration, it will
prevail notwithstanding its repugnancy to an earlier law of the Union, both laws
dealing with a concurrent subject. In such a case, the Central Act will give way to
the State Act only to the extent of inconsistency between the two, and no more. In
short, the result of obtaining the assent of the President to a State Act which is
inconsistent with a previous Union law relating to a concurrent subject would be that
the State Act will prevail in that State and override the provisions of the Central
Act in their applicability to that State only. The predominance of the State law may
however be taken away if Parliament legislates under the proviso to cl. (2). The
proviso to Art. 254(2) empowers the Union Parliament to repeal or amend a repugnant
State law, either directly, or by itself enacting a law repugnant to the State law with
respect to the 'same matter'. Even though the subsequent law made by Parliament
does not expressly repeal a State law, even then, the State law will become void
as soon as the subsequent law of Parliament creating repugnancy is made. A
State law would be repugnant to the Union law when there is direct conflict
between the two laws. Such repugnancy may also arise where both laws operate
in the same field and the two cannot possibly stand together.
[With respect to the present case, where the appellants had claimed that there was
repugnancy between two laws – a State List Law and a Concurrent List Law, the
Learned Judge clarified:]
The question of repugnancy under Art. 254(1) between a law made by

Parliament and a law made by the State Legislature arises only in case both the
legislations occupy the same field with respect to one of the matters enumerated
in the Concurrent List, and there is direct conflict between the two laws. It is
only when both these requirements are fulfilled that the State law will, to the
extent of repugnancy become void. Art. 254(1) has no application to cases of
repugnancy due to overlapping found between List II on the one hand and List I
and List III on the other. If such overlapping exists in any particular case, the
State law will be ultra vires because of the non-obstante clause in Art. 246(1) read
with the opening words "Subject to" in Art. 246(3). In such a case, the State law
will fail not because of repugnance to the Union law but due to want of legislative
competence. It is no doubt true that the expression "a law made by Parliament which
Parliament is competent to enact" in Art. 254(1) is susceptible of a construction that
repugnance between a State law and a law made by Parliament may take place outside
the concurrent sphere because Parliament is competent to enact law with respect to
subjects included in List III as well as List I. But if Art. 254(1) is read as a whole, it
will be seen that it is expressly made subject to cl. (2) which makes reference to
repugnancy in the field of Concurrent List. In other words, if cl. (2) is to be the guide
in the determination of scope of cl. (1), the repugnancy between Union and State law
must be taken to refer only to the Concurrent field.
Art. 254(1) speaks of a State law being repugnant to (a) a law made by Parliament or
(b) an existing law. There was a controversy at one time as to whether the succeeding
words "with respect to one of the matters enumerated in the Concurrent List" govern
both (a) and (b) or (b) alone. It is now settled that the words "with respect to"
qualify both the clauses in Art. 254(1), viz. a law made by Parliament which
Parliament is competent to enact as well as any provision of an existing law. The
underlying principle is that the question of repugnancy arises only when both the
Legislatures are competent to legislate in the same field i.e. with respect to one of
the matters enumerated in the Concurrent List. Hence, Art. 254(1) cannot apply
unless both the Union and the State laws relate to a subject specified in the
Concurrent List, and they occupy the same field.
Comment: This case is important not only because it clearly outlines the scope and
ambit of operation of the Doctrine of Repugnancy with respect to Article 254, the
Court in this case make certain incisive observations about prioritising the
harmonious construction and pith and substance doctrines over the Non-obstante
clause interpretation in Article 246, which are also worthy of thoughtful
consideration.
On Repugnancy and Direct Conflicts
Case: Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752 (Coram:

Mahajan, C.J., Mukherjea, Bose, Jagannadhadas, Aiyyar, JJ.)
The Parliament had enacted the Essential Supplies Act, 1946, for regulating
production, supply and distribution of essential commodities. A contravention of any
provision of the above Act was punishable with imprisonment up to 3 years or fine or
both. In 1947, considering the punishment inadequate, the Bombay Legislature passed
an Act enhancing the punishment provided under the Central Law. This Act received
the assent of the President and thus prevailed over the Central Law and become
operative in the State of Bombay. However, in 1950, Parliament amended its Act of
1946 and enhanced the punishment. It was held by the Court that as both occupied the
same field (enhanced punishment) the State law became void as being repugnant to
the Central law.
Per Aiyyar, J.:

Article 254 is, [...], in substance, a reproduction of section 107(2) of the Government
of India Act, the concluding portion thereof being incorporated in a proviso with
further additions. [...] Now, by the proviso to article 254(2) the Constitution has
enlarged the powers of Parliament, and under that proviso, Parliament can do what the
Central Legislature could not under section 107(2) of the Government of India Act,
and enact a law adding to, amending, varying or repealing a law of the State, when it
relates to a matter mentioned in the Concurrent List. The position then is that under
the Constitution Parliament can, acting under the proviso to article 254(2),
repeal a State law. But where it does not expressly do so, even then, the State law
will be void under that provision if it conflicts with a later "law with respect to
the same matter" that may be enacted by Parliament.
In the present case, there was no express repeal of the Bombay Act by [the Union
Law] in terms of the proviso to article 254(2). Then the only question to be decided is
whether the amendments made to the Essential Supplies (Temporary Powers) Act by
the Central Legislature in 1948, 1949 and 1950 are "further legislations" falling
within section 107(2) of the Government of India Act or "law with respect to the same
matter" falling within article 254(2). The important thing to consider with
reference to this provision is whether the legislation is "in respect of the same
matter". If the later legislation deals not with the matters which formed the
subject of the earlier legislation but with other and distinct matters though of a
cognate and allied character, then article 254(2) will have no application. The
principle embodied in section 107(2) and article 254(2) is that when there is
legislation covering the same ground both by the Centre and by the Province,
both of them being competent to enact the same, the law of the Centre should
prevail over that of the State.
[The Learned Judge, after analysing the provisions of the Law, held that the laws in
the instant case were “in respect of the same matter”. Therefore, he went on to dismiss
the Appeal].
Comment: This case clearly outlines the instances how there can be repugnancy
between the State and the Union Law in case of Direct Conflicts, and how the
provision of Article 254(2) can be interpreted in such cases.
On Repugnancy and Occupied Fields – I
Case: Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648 (Coram: S.R.
Das, C.J., Sinha, Subba Rao, Wanchoo, N.H. Bhagwati, JJ.)
This case challenged the validity of the U.P. Transport Services (Development) Act of
1955, by virtue of which the State nationalized the motor transport business in the
State of Uttar Pradesh, including the business of the appellants who was running
Stage Carriers, mandating that such a business be carried out by the State government
only. The law was considered necessary by the State because the Motor Vehicles Act,
1939 did not contain any provision for the nationalisation of Motor Transport
Services. Later on, in 1956 the Parliament, with a view to introduce a uniform law
amended the Motor Vehicles Act, 1939, and added a new provision enabling the State
Government to frame rules of nationalisation of Motor Transport. The Court held that
since both the Union Law and the State Law occupied the same field, the State Law
was void to the extent of repugnancy to the Union Law.
Per S.R. Das, C.J.:
[The Learned Chief Justice agrees with the observations of Subba Rao, J. who
delivered the majority opinion, except the fact that he refused to accept the opinion of
Subba Rao, J. that the Doctrine of Eclipse does not apply to post-Constitutional
Laws].
Per Subba Rao, J.:
[To begin with, the Learned Judge outlines the salient features of the Doctrine of
Repugnancy, thus:]
Repugnancy between two statutes may thus be ascertained on the basis of the
following three principles:
(1) Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive code in

respect of the subject matter replacing the Act of the State Legislature;
and
(3) Whether the law made by Parliament and the law made by the State
Legislature occupy the same field.
[The Learned Judge then meticulously goes through the provisions of the laws in
question, and observes:]
A comparison of the aforesaid provisions of the U. P. Act and the Amending

Act indicates that both the Acts are intended to operate, in respect of the same subject
matter in the same field. The unamended Motor Vehicles Act of 1939 did not make
any provision for the nationalization of transport services, but the States introduced
amendments to implement the scheme of nationalization of road transport.
Presumably, Parliament with a view to introduce a uniform law throughout the
country avoiding defects found in practice passed the Amending Act inserting
Chapter IV-A in the Motor Vehicles Act, 1939. This object would be frustrated if the
argument that both the U. P. Act and the Amending Act should co-exist in respect of
schemes to be framed after the Amending Act is accepted. [He gives examples to
illustrate the differences between the two Acts, and opines:] The provisions of the
scheme, the principles of compensation and the manner of its payment also differ in
the two Acts. It is therefore manifest that the Amending Act occupies the same field
in respect of the schemes initiated after the Amending Act and therefore to that extent
the State Act must yield its place to the Central Act. But the same cannot be said of
the schemes framed under the U. P. Act before the Amending Act came into force.
[...]
Mr. Nambiar [Counsel for the appellants] contends that, as the U. P. Act and
the Amending Act operate in the same field in respect of the same subject-matter, i.e.,
the nationalization of bus transport, the U. P. Act becomes void under Art. 254(1) of
the Constitution. This argument ignores the crucial words "to the extent of the
repugnancy" in the said clause. What is void is not the entire Act but only to the
extent of its repugnancy with the law made by Parliament. The identity of the
field may relate to the pith and substance of the subject-matter and also the
period of its operation. When both coincide, the repugnancy is complete and the
whole of the State Act becomes void. The operation of the Union Law may be
entirely prospective leaving the State Law to be effective in regard to thing already,
done. Sections 68C, 68D and 68E, inserted by the Amending Act, clearly show that
those sections are concerned only with a scheme initiated after the Amending
Act came into force. None of the sections, either expressly or by necessary
implication, indicates that the schemes already finalised should be reopened and fresh
schemes be framed pursuant to the procedure prescribed thereunder. Therefore,
under Art. 254(1), the law under the U. P. Act subsists to support the schemes framed
thereunder and it becomes void only in respect of schemes framed under the Central
Act.
[He clarifies his position by drawing a very interesting parallel between Article 254(1)
and Article 13(1). He observes:]
Article 13(1), so far as it is relevant to the present inquiry, is pari materia with the
provisions of Art. 254(1) of the Constitution. While under Art. 13(1) all the pre-
Constitution laws, to the extent of their inconsistency with the provisions of Part III,
are void, under Art. 254(1) the State Law to the extent of its repugnancy to the law
made by Parliament is void. If the pre-Constitution law exists for the post-
Constitution period for all the past transactions, by the same parity of reasoning, the
State law subsists after the making of the law by Parliament, for past transactions. In
this view, both the laws can co-exist to operate during different periods.
[Finally, based on these observations, he goes on to hold the U.P. Law to be

constitutionally valid, and dismissed the appeal accordingly].
Comment: This case provides a wonderful insight into the application of the Doctrine
of Repugnancy in the case of Occupied Fields or Intended Occupation. The Learned
Judge’s rebuttal to the arguments of the Counsel for the appellant, stating that in case
of Occupied Fields, the entire law cannot as a matter of rule be declared void, but the
voidness exists to the extent of repugnancy; is a definitely pragmatic and appropriate
interpretation to Article 254.
On Repugnancy and Occupied Fields – II
Case: M. Karunanidhi v. Union of India, AIR 1979 SC 898 (Coram:

Chandrachud, C.J., Bhagwati, Untwalia, M. Fazal Ali, Pathak, JJ.)
The appellant was alleged to have abused his official position as Chief Minister of
Tamil Nadu to give himself a pecuniary advantage. In 1973, Tamil Nadu had enacted
the Tamil Nadu Public Men (Criminal Misconduct) Act. This Act received the assent
of the President, and was further amended in 1974. The alleged offences were
committed between November 1974 and March 1975. Subsequently, the State Act
was repealed in 1977. It was contended inter alia that while the State Act was in
force, its provisions may have been repugnant to several Central laws, but by virtue of
the proviso to Article 254(2) of the Constitution, the State Law became the dominant
law on the subject in the State of Tamil Nadu. Accordingly therefore, the provisions
of the Central Act stood repealed and could not be used to prosecute the appellant
unless they were reenacted.
Per M. Fazal Ali, J.:
[The Learned Judge carefully analysed both the sets of laws, and opined:]
A careful analysis, therefore, of the various provisions of the State Act leads to the
irresistible inference that the State Act was passed with a view to afford sufficient
protection to a public man by enjoining a summary inquiry or investigation by a high
and independent Tribunal of the status of a High Court Judge or a Senior District
Judge to instil confidence in the people and to prevent public man from being
prosecuted on false, frivolous and vexatious allegations. Although the ingredients of
criminal misconduct as defined in section 5(1) (d) of the Corruption Act are
substantially the same in the State Act as in the Central Acts but here also the
punishment is much severer in the case of the State Act than the one contained in the
Central Acts. It is, therefore, manifest that the State Act does not contain any
provision which is repugnant to the Central Acts, but is a sort of complementary Act
which runs pari passu the Central Acts mentioned above.
[The Learned Judge, before analysing the question as to whether the Laws are
repugnant to each other, decided to first outline the salient features of the Doctrine of
Repugnancy. He observed:]
It is well settled that the presumption is always in favour of the constitutionality of a

statute and the onus lies on the person assailing the Act to prove that it is
unconstitutional. Prima facie, there does not appear to us to be any inconsistency
between the State Act and the Central Acts. Before any repugnancy can arise, the
following conditions must be satisfied:-
1. That there is a clear and direct inconsistency between the Central

Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such
a nature as to bring the two Acts into direct collision with each other and
a situation is reached where it is impossible to obey the one without
disobeying the other.
[He went on to further crystalise the Doctrine thus:]
On a careful consideration, therefore, of the authorities referred to above, the

following propositions emerge:-
1. That in order to decide the question of repugnancy it must be shown

that the two enactments contain inconsistent and irreconcilable
provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency

appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, there is room or
possibility of both the statutes operating in the same field without coming
into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same

field seeks to create distinct and separate offences, no question of
repugnancy arises and both the statutes continue to operate in the same
field.
In the light of the propositions enunciated above, there can be no doubt that the State
Act creates distinct and separate offences with different ingredients and different
punishments and it does not in any way collide with the Central Acts. On the other
hand, the State Act itself permits the Central Act, namely, the Criminal Law
(Amendment) Act to come into its aid after an investigation is completed and a report
is submitted by the Commissioner or the Additional Commissioner. It was contended
however by Mr. Venugopal [appearing on behalf of Karunanidhi] that by virtue of the
fact that the State Act has obtained the assent of the President, it will be deemed to be
a dominant legislation, and, therefore, it would overrule the Central Acts. Doubtless,
the State Act is the dominant legislation but we are unable to agree with [him] that
there are any provisions in the State Act which are irreconcilably or directly
inconsistent with the Central Acts so as to overrule them.
[He went on to refute the other arguments advanced by Mr. Venu Gopal and held that
the two Acts could mutually co-exist without there being any repugnancy between the
two, in view of the propositions outlined by him].
Comment: The tests evolved with respect to the Doctrine of Repugnancy in this case
can be looked at as a logical extension to the Deep Chand tests. Considering the
trajectory of these cases, one conclusion is inevitable – the Courts are using the spirit
of harmonious construction and pith and substance more and more in situations of
apparent conflict, in order to make both laws mutually coexist without one
irreconcilably overriding the other.
Conclusion
The cases discussed in this chapter clearly indicate one factor has to be taken into account,
while ascertaining the legislative competence of the respective bodies. As much there are
methods of interpretation of the three lists like the ‘Non-obstante clause’ in Article 246(3), it
is to be used as a last resort only. The Courts should consider using doctrines like harmonious
construction and pith and substance, and reconcile the two conflicting entries. This is an
absolutely essential necessity that gives to our federal arrangement a great deal of balance
against the apparent lopsidedness.
Section C
Administrative Relations
Introduction
This Chapter discusses the Administrative relations between the Union and the States,
specifically focusing on the administrative instructions issues by the Union to the States in
view of its duty to protect the States from wars, external aggressions or internal disturbances,
as necessitated by Article 355 of the Constitution.
On the Duty of the Union to Protect the States
Case: Sarbananda Sonowal v. Union of India, AIR 2005 SC 9290 (Coram:

Lahoti, C.J., G.P. Mathur, Balasubramanyan, JJ.)
This case is of great historical significance to the state of Assam and it earned the
petitioner Sarbananda Sonowal, enormous amount of fame and respect of the people
in the State. The case was filed as a Public Interest Litigation under Article 32 of the
Constitution of India. The primary prayers of the petitioner were to declare certain
provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 as
unconstitutional and also declare the Illegal Migrants (Determination by Tribunals)
Rules, 1984 null and void in its entirety. The bench granted the prayers of the
petitioner and declared the above-mentioned pieces of laws as unconstitutional and
thereby; removed the major hindrances of effective deportation of the illegal
immigrants from Assam. In doing so, the Court made some pertinent observations
with respect to the ambit of Article 355 of the Constitution.
Per G.P. Mathur, J.:
The foremost duty of the Central Government is to defend the borders of the country,
prevent any trespass and make the life of the citizens safe and secure. The
Government has also a duty to prevent any internal disturbance and maintain law and
order. Kautilya in his masterly work "The Arthashastra" has said that a King had two
responsibilities to his state, one internal and one external, for which he needed an
army. One of the main responsibilities was Raksha or protection of the state from
external aggression. The defence of the realm, a constant preoccupation for the king,
consisted not only of the physical defence of the kingdom but also the prevention of
treachery, revolts and rebellion. The physical defensive measures were the frontier
posts to prevent the entry of undesirable aliens and forts in various parts of the
country. The very first entry, namely, Entry 1 of List I of the Seventh Schedule is
"Defence of India and every part thereof including preparation for defence and all
such acts as may be conducive in times of war to its prosecution and after its
termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh
Schedule mainly deal with armed forces.
[Referring to the wordings of Article 355, the Learned Judge observes:]
The word "aggression" is a word of very wide import. Various meanings to the word
have been given in the dictionaries, like, "an assault, an inroad, the practice of setting
upon anyone; an offensive action or procedure; the practice of making attacks or
encroachments; the action of a nation in violating the rights especially the territorial
rights of another nation; overt destruction; covert hostile attitudes."
The word "aggression" is not to be confused only with "war". Though war would be
included within the ambit and scope of the word "aggression" but it comprises many
other acts which cannot be termed as war.
[Turning to the provisions of the IMDT Act, he observes:]

The very first sentence of the Statement of Objects and Reasons of the IMDT Act
says "the influx of foreigners who illegally migrated into India across the borders of
the sensitive Eastern and North- Eastern regions of the country and remained in the
country poses a threat to the integrity and security of the said region." It further says
that "continuance of these persons in India has given rise to serious problems." The
Preamble of the Act says that "the continuance of such foreigners in India is
detrimental to the interests of the public of India." The Governor of Assam in his
report dated 8th November, 1998 sent to the President of India has clearly said that
unabated influx of illegal migrants of Bangladesh into Assam has led to a perceptible
change in the demographic pattern of the State and has reduced the Assamese people
to a minority in their own State. It is a contributory factor behind the outbreak of
insurgency in the State and illegal migration not only affects the people of Assam but
has more dangerous dimensions of greatly undermining our national security.
Pakistan's I.S.I. is very active in Bangladesh supporting militants in Assam. Muslim
militant organizations have mushroomed in Assam. The report also says that this can
lead to the severing of the entire landmass of the north-east with all its resources from
the rest of the country which will have disastrous strategic and economic
consequences. The report is by a person who has held the high and responsible
position of Deputy Chief of the Army Staff and is very well equipped to recognize the
potential danger or threat to the security of the nation by the unabated influx and
continued presence of Bangladeshi nationals in India. Bangladesh is one of the
world's most populous countries having very few industries. The economic prospects
of the people in that country being extremely grim, they are too keen to cross over the
border and occupy the land wherever it is possible to do so. The report of the
Governor, the affidavits and other material on record show that millions of
Bangladeshi nationals have illegally crossed the international border and have
occupied vast tracts of land like "Char land" barren or cultivable land, forest area and
have taken possession of the same in the State of Assam. Their willingness to work at
low wages has deprived Indian citizens and specially people in Assam of employment
opportunities. This, as stated in the Governor's report, has led to insurgency in Assam.
Insurgency is undoubtedly a serious form of internal disturbance which causes grave
threat to the life of people, creates panic situation and also hampers the growth and
economic prosperity of the State of Assam though it possesses vast natural resources.
This being the situation there can be no manner of doubt that the State of Assam
is facing "external aggression and internal disturbance" on account of large
scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty
of Union of India to take all measures for protection of the State of Assam from
such external aggression and internal disturbance as enjoined in Article 355 of
the Constitution. Having regard to this constitutional mandate, the question arises
whether the Union of India has taken any measures for that purpose.
[However, looking at the Foreigners Act, Foreigners (Tribunals) Order, 1964 and the
the IMDT Act and the Rules made thereunder, the Court observed that:]
[T]he procedure under the Foreigners Act and also under the Foreigners (Tribunals)
Order, 1964 is far more effective in identification and deportation of foreigners as
compared to the procedure under the IMDT Act and the Rules made thereunder. [...]
[T]here cannot be even a slightest doubt that the application of the IMDT Act and the
Rules made thereunder in the State of Assam has created the biggest hurdle and is the
main impediment or barrier in identification and deportation of illegal migrants. On
the contrary, it is coming to the advantage of such illegal migrants as any proceedings
initiated against them under the said provision which, as demonstrated above, almost
entirely ends in their favour, enables them to have a document having official sanctity
to the effect that they are not illegal migrants. As already discussed, the presence of
such a large number of illegal migrants from Bangladesh, which runs into millions, is
in fact an "aggression" on the State of Assam and has also contributed significantly in
causing serious "internal disturbances" in the shape of insurgency of alarming
proportion making the life of the people of Assam wholly insecure and the panic
generated thereby has created a fear psychosis. This has resulted in seriously
hampering the growth of the State of Assam although it has vast natural resources as
people from rest of the country have a general perception that it is a disturbed area
and this factor has resulted in not generating any employment opportunity which has
contributed to a large measure in giving rise to insurgency. The impact is such that it
not only affects the State of Assam but it also affects its sister States like Arunachal
Pradesh, Meghalaya, Nagaland, etc. as the route to the said places passes through the
State of Assam.

[B]y enacting the IMDT Act the Parliament has divested the Central Government of
the power to remove migrants from Bangladesh, whose presence was creating serious
law and order problem, which fact had been realized by the Central Government as
early as in 1950. The IMDT Act instead of maintaining peace has only revived
internal disturbance.
[The Learned Judge finally concludes:]
The above discussion leads to irresistible conclusion that the provisions of the
IMDT Act and the Rules made thereunder clearly negate the constitutional
mandate contained in Article 355 of the Constitution, where a duty has been cast
upon the Union of India to protect every State against external aggression and
internal disturbance. The IMDT Act which contravenes Article 355 of the
Constitution is, therefore, wholly unconstitutional and must be struck down.
Comment: This case clearly point out the duty cast upon the Centre by Article 355 of
the Constitution to protect the States against war, external aggression and internal
disturbance. If it passes a law which negates the performance of such a duty, then this
law is tenable to be struck down, as was seen with the IMDT Act in this case.
On ‘Internal Disturbances’ and the Government
Case: Naga People's Movement of Human Rights vs. Union of India, AIR 1998
SC 431 (Coram: Verma, C.J., Punchhi, Agrawal, Anand, Bharucha, JJ.)
Writ petitions were filed challenging the validity of the Armed Forces (Special
Powers) Act, 1958 (as amended) enacted by Parliament and the Assam Disturbed
Areas Act, 1955 enacted by the State Legislature of Assam. The main reason provided
by the petitioners behind their challenge is that these Acts vests arbitrary and
unrestricted powers in the Armed Forces under the veil of controlling internal
disturbances.
Per Agrawal, J.:

Shri Dhavan [Counsel for petitioners] has submitted that the power to deal with
"public order" in the widest sense vests with the States and that the Union has the
exclusive power to legislate and determine the nature of the use for which the armed
forces may be deployed in aid of the civil power and to legislate on an determine the
conditions of deployment of the armed forces and the terms on which the forces
would be so deployed but the State in whose aid the armed forces are so deployed
shall have the exclusive power to determine the purposes, the time period and the
areas in which the armed forces should be requested to act in aid of civil power and
that the State retains a final directorial control to ensure that the armed forces act in
aid of civil power and do not supplant or act in substitution of the Civil power.
A perusal of Entry 1 of the State List Would show that while power to legislate in
order to maintain public order has been assigned to the State Legislature, the
field encompassing the use of armed forces in aid of the civil power has been
carved out from the said Entry and legislative power in respect of that field has
been expressly excluded. This means that the State Legislature does not have any
legislative power with respect to the use of the armed forces of the Union in aid
of the civil power for the purpose of maintaining public order in the State and
the Competence to make a law in that regard vests exclusively in parliament.
Prior to the Forty-Second Amendment to the Constitution such power could be
inferred from Entry 2 of the Union List relating to naval, military and air forces and
any other armed forces of the Union as well as under Article 248 read with Entry 97
of the Union List. After the Forty-Second Amendment the legislative power of
parliament in respect of deployment of armed forces of the Union or another force
subject to the control of the Union or any contingent or unit thereof in any State in aid
of the civil powers flows from Entry 2-A of the Union List. The expression "in aid
of the civil power" in entry 1 of the State List and in Entry 2A of the Union List
implies that deployment of the armed forces of the Union shall be for the
purpose of enabling the civil power in the State to deal with the situation
affecting maintenance of public order which has necessitated the deployment of
the armed forces in the State. The word "aid" postulates the continued existence
of the authority to be aided. This would mean that even after deployment of the
armed forces the civil power will continue to function. The power to make a law
providing for deployment of the armed forces of the Union in aid of the civil
power in the State does not comprehend the power to enact a law which would
enable the armed forces of the Union to supplant or act as a substitute for the
civil power in the State. We are, however, unable to agree with the submission of the
learned counsel for the petitioners that during the course of such deployment the
supervision and control over the use of armed forces has to be with the civil
authorities of the State concerned or that the State concerned will have the exclusive
power to determine the purpose, the time period and the areas within which the armed
forces should be requested to act in aid of civil power. In our opinion, what is
contemplated by Entry 2-A of the Union List and Entry I of the State List is that
in the event of deployment of the armed forces of the Union in aid of the civil
power in a State, the said forces shall operate in the State concerned in
cooperation with the civil administration so that the situation which has
necessitated the deployment of the armed forces is effectively dealt with and
normalcy is restored.
[The Learned Judge responds to the argument raised by the petitioners that this law is
primarily aimed at providing power to the Centre to tackle “armed rebellions” and/or
“Internal Disturbances”, which it is competent to do only in time of Emergencies. He
opines:]
There is no material on the record to show that the disturbed conditions in the States
to which the Central Act has been extended are due to an armed rebellion. Even if the
disturbance is as a result of armed rebellion by a section of the people in those States
the disturbance may not be of such a magnitude as to pose a threat to the Security of
the country or part thereof so as to call for invocation of the emergency powers
under Article 352. If the disturbance caused by armed rebellion does not pose a
threat to the security of the country and the situation can be handled by
deployment of armed forces of the Union in the disturbed area, there appears to
be no reason why the drastic power under Article 352 should be invoked. It is,
therefore, not possible to hold that the Central Act, which is primarily enacted to
confer certain powers on armed forces when deployed in aid of civil power to deal
with the situation of internal disturbance in a disturbed area, has been enacted to deal
with a situation which can only be dealt with by issuing a proclamation of emergency
under Article 352.
The contention based on the provisions of Article 356 is also without substance.
Reference in this context may be made to Article 355 of the Constitution whereunder
a duty has been imposed on the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of every State
is carried on in accordance with the provisions of the Constitution. In view of the said
provision the Union Government is under an obligation to take steps to deal with a
situation of internal disturbance in a State. There can be a situation arising out of
internal disturbance which may justify the issuance of a proclamation under Article
356 of the Constitution enabling the President to assume to himself all or any of the
functions of the Government of the State. That would depend on the gravity of the
situation arising on account of such internal disturbance and on the President being
satisfied that a situation has arisen where the Government of the State cannot be
carried on in accordance with provisions of the Constitution. [...] The provisions of
the Central Act have been enacted to enable the Central Government to discharge the
obligation imposed on it under Article 355 of the Constitution and to prevent the
situation arising due to internal disturbance assuming such seriousness as to require
invoking the drastic provisions of Article 356 of the Constitution. The Central
Act does not confer of the Union the executive and legislative powers of the States in
respect of which a declaration has been made under Section 3. It only enables the
personnel of armed forces of the Union to exercise the power conferred under Section
4 in the event of a notification declaring an area to be a disturbed area being issued
under Section 3. Having regard to the powers that are conferred under Section 4, we
are unable to appreciate how the enactment of the Central Act can be equated with the
exercise of the power under Article 356 of the Constitution.
[The Learned Judge goes on to observe:]
Whether a situation has arisen which requires the making of a declaration

under Section 3 so as to enable the armed forces of the Union to be deployed in aid of
the Civil power is a matter which has to be considered by the Governor of the
State/Administrator of the Union Territory as well as Central Government because the
cooperation of both is required for handling the situation. By virtue of Article
355 the Union owes a duty to protect the States against internal disturbance and
since the deployment of armed forces in aid of civil power in a State is to be
made by the Central Government in discharge of the said constitutional
obligation, the conferment of the power to issue a declaration on the Central
Government cannot be held to be violative of the federal scheme as envisaged by
the Constitution.
[He went on to uphold the constitutionality of the Act, subject to certain safeguards as
laid down].
Comment: This case clearly shows that with respect to such issues as preventing
internal disturbances and external aggressions, a substantial amount of latitude is
given to the laws made and the executive steps taken in pursuance of such laws,
provided that they are not grossly unconstitutional, like what was seen in Sonowal’s
case.
Conclusion
The conclusion that one can come to from the cases discussed in this Chapter is that while the
Courts tend to defer to the administrative actions taken by the Union to protect the States, in
pursuance of their constitutional mandate to do so, they do not hesitate to intervene if such
actions are based on constitutionally dubious parameters.
Section D
Financial Relations
Introduction
This Chapter discusses the Financial Relations between the Union and the States. The cases
discussed in this Chapter focus on the model of Fiscal Federalism followed in India, the
difference between the levy of a ‘tax’ and a ‘fee’ and several other important issues
pertaining to the distribution of the fiscal revenue between the Union and the States.
On the Nature of Fiscal Federalism
Case: New Delhi Municipal Corporation vs. State of Punjab, (1997) 7 SCC 339
(Coram: Ahmadi, C.J., Verma, Agrawal, Jeevan Reddy, Anand, Hansaria, Sen,
Paaripoornan, Kirpal, JJ.)
One of the questions sought to be answered in course of this judgment was whether
the property taxes levied under the Delhi Municipal Corporation Act, 1957 on
properties owned by other state governments is valid in light of Article 289 of the
Constitution.
Although this judgement, a landmark one for Delhi, considering its special
constitutional status and questions on its statehood, discusses a number of issues, we
will in this discussion confine ourselves to the issue of Fiscal Federalism, and the
interpretation of the Articles in the Chapter on Financial Relation, as put forward by
Jeevan Reddy, J.
Per Jeevan Reddy, J.:
[After determining the question of whether Delhi is a State (to which he answered in
the negative), the Learned Judge went into a discussion of Articles 285 and Article
289 of the Constitution, which exempt Union properties from State Taxation, and vice
versa. He opined:]
A federation pre-supposes two coalescing units: the Federal Government/Centre and

the States/Provinces. Each is supposed to be supreme in the sphere allotted it/them.
Power to tax is an incident of sovereignty. Basic premise is that one sovereign cannot
tax the other sovereign. Article 285 and 289 manifest this mutual regard and
immunity but in a manner peculiar to our constitutional scheme. While the immunity
created in favour of the Union is absolute, the immunity created in favour of the
States is a qualified one. We may elaborate: Article 285 says that "the property of
the Union shall...be exempt from all tax imposed by a State or by any authority within
a State" unless, of course, Parliament itself permits the same and to the extent
permitted by it. [Clause (2) of Article 285 saves the existing taxes until the Parliament
otherwise provides, but this is only a transitional provision.] The ban, if it can be
called one, is absolute and emphatic in terms. There is no way a State legislature can
levy a tax upon the property of the Union. So far as Article 289 is concerned, the
position is different. Clause (1), had it stood by itself, would have been similar to
clause (1) of Article 285. It says that "the property-and income-of a State shall be
exempt from Union taxation". But it does not stand alone. It is qualified by clause (2)
and clause (3) is an exception to clause (2). But before we refer to clause (2), a word
with respect to the meaning and ambit of the expression "property" occurring in this
article. Expression "property" is wide enough to take in all kinds of property. In Re.
the Bill to amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the
Central Excises and Salt Act, 1944 [AIR 1963 SC 1760], all the learned Judges [both
majority and dissenting] were agreed that the expression must be understood in its
widest sense. There is no reason to put a restricted construction thereon. Indeed, there
is no controversy about this proposition before us. Coming to clause (2), it says that
the ban imposed by clause (1) shall not prevent the Union from imposing or
authorising the imposition of any tax to such extent, if any, as the Parliament may by
law provide, in respect of (a) trade or business of any kind carried on by or on behalf
of the Government of a State or (b) any operations connected with such trade or
business or (c) any property used or occupied for the purposes of such trade or
business or (d) any income accruing or arising in connection with such trade or
business. [The inspiration for this provision may perhaps be found in certain United
States' decision on the question of the power of the units of a federal polity to tax each
others' properties.] Clause (3) empowers the Parliament to declare, by law, which
trade or business or any class of trades or businesses is incidental to the ordinary
functions of the Government, whereupon the trades/businesses so specified go out of
the purview of clause (2).
It would be appropriate at this state to notice the ratio of two judgments of this Court
dealing with Article 289. In Re: Sea Customs Act, a Special Bench of nine learned
Judges, by a majority, laid down the following propositions:
(a) clause (1) of Article 289 provides for exemption of property and income of
the States only from taxes imposed directly upon them; it has no application to
indirect taxes like duties of excise and customs;
(b) duties of excise and customs are not taxes on property or income; they are
taxes on manufacture/production of goods and on import/export of goods, as
the case may be, and hence, outside the purview of clause (1) of Article 289.
The other decision in Andhra Pradesh State Road Transport Corporation v. The
Income Tax Office [AIR 1964 SC 1486] is the decision of a Constitution Bench. The
main holding in this case is that income of the A.P.S.R.T.C. is not the income of the
State of Andhra Pradesh since the former is an independent legal entity and
hence, Article 289(1) does not avail it. At the same time, certain observations are
made in the decision regarding the scheme of Article 289. It is held that clause (2) is
an exception of a proviso to clause (1) and as such whatever is included in clause (2)
must be deemed to be included in clause (1). In other words, the trading and business
activities referred to in clause (2) are included in clause (1) and precisely for this
reason the exception in clause (2) was provided. Clause (3), it was held, is an
exception to clause (2). [...]
[The Learned Judge then goes on to introspect into the question as to whether the tax
levied by NDMC would constitute ‘Union Taxation’ or ‘State Taxation’. Considering
the arguments of both sides and predominantly relying on the fact that Delhi, despite
its special Constitutional status, is a Union Territory, he opined that it is a Union Tax.
Finally, coming to the instant case, he concluded:]
None of the above enactments provide any exemption in favour of the properties of a
State. Section 115(4) of the Delhi Municipal Corporation Act, Section 61 of the
Punjab Municipal Act and Section 62 of the N.D.M.C Act levy property tax on all the
properties within their jurisdiction. From the fact that properties of the Union have
been specifically exempted in terms of Article 285 but the properties of the States
have not been exempted in terms of Article 289 shows that so far as these
enactments go, they purport to levy tax on the properties of the States as well.
The State governments, it is equally obvious, are not claiming exemption from
municipal taxation under any provision of the concerned State enactment but only
under and by virtue of Article 289 of the Constitution. They are relying upon clause
(1) of Article 289 which is undoubtedly in absolute terms. Clause (1) of Article 289
says, "the property and income of a State shall be exempt from Union taxation". But
clause (1) does not stand alone. It is qualified by clause (2) - which in turn is qualified
by clause (3). Where an exemption is claimed under clause (1), we cannot shut our
eyes to the said qualifying clause and give effect to clause (1) alone. In the decision in
A.P.S.R.T.C., this Court has held that clause (2) is an exception to clause (1) and that
clause (3) is an exception to clause (2). When a claim for exemption is made under
clause (1) of Article 289, the Court has to examine and determine the field occupied
by clause (1) by reading clauses (1) and (2) together. If there is a law made by
Parliament within the meaning of clause (2), the area covered by that law will be
removed from the field occupied by clause (1).
[Finally, coming to the ambit of operation of Article 289(2), the exception to the
blanket prohibition provided for in Article 289(1), the Learned Judge observed:]
Now, coming to clause (2) of Article 289, position is the same with the two
distinguishing features mentioned supra, viz., (a) under this clause, removal of
exemption is not automatic; it comes about only when the Parliament makes a
law imposing taxes in respect of any trade or business carried on by a State
government and all activities connected therewith or any property used or
occupied for the purposes of such business as also the income derived therefrom.
If any property - whether movable or immovable - is used or occupied for the purpose
of any such trade or business, it can be denied the exemption provided by clause (1)
but this denial can be only by way of a law made by Parliament; and (b) the
exception contemplated by clause (2) is not confined to trade and business
carried on by a State outside its territory. [...] Even the trade or business carried on
by a State within its own territory can also be brought within the purview of the
enactment made [by Parliament] in terms of the said clause.
Adverting to the matters before us, the question is whether the Parliament has made
any law as contemplated by clause (2) of Article 289? For, if no such law is made, it
is evident, all the properties of State governments in the Union Territory of Delhi
would be exempt from taxation. [Parliament has admittedly not made any law as
contemplated by clause (3) of Article 289.] We have observed hereinbefore that the
claim of exemption put forward by State governments in respect of their properties
situated in N.D.M.C. and Delhi Municipal Corporation areas is founded - and can
only be founded - on Article 289. The States invoke clause (1) of the article but we
are of the considered opinion that clause (1) cannot be looked at in isolation; it
must be read subject to clause (2). All the three clauses of Article 289 are parts of
one single scheme. Hence, when a claim for exemption with reference to clause
(1) is made, one must see what is the field on which it operates and that can be
determined only by reading it along with clause (2). The exemption provided
by Article 289(1) is a qualified one - qualified by clause (2), as explained
hereinbefore. It is not an absolute exemption like the one provided by Article
285(1). If there is a law within the meaning of clause (2), the field occupied by
clause (1) gets curtailed to the extent specified in clause (2) and the law made
thereunder. It is, therefore, necessary in this case to determine whether the Punjab
Municipal Act, Delhi Municipal Corporation Act and N.D.M.C. Act are or can be
deemed to be enactments within the meaning of clause (2) of Article 289. These
enactments - and certainly the Delhi Municipal Corporation Act and N.D.M.C. Act -
are post-constitutional enactments. As stated hereinbefore, these enactments while
specifically exempting the Union properties in terms of Article 285, do not exempt the
properties of the States in terms of Article 289. [...] It cannot be said, or presumed,
that Parliament was not aware of, or conscious of, Article 289 while enacting the said
Acts. [...] In such a situation, the question is, how should they be understood? Two
views can be taken: one that since the said enactments do not expressly purport to
have been made under and as contemplated by clause (2) of Article 289, they should
not be read and understood as laws contemplated by or within the meaning of the said
clause (2). The effect of this view would be that the properties of the State in Union
Territory of Delhi will be totally exempt irrespective of the manner of their use and
occupation. In other words, the consequence would be that the relevant provisions of
the said enactments would be ineffective and unenforceable against all the properties
held by the States in the Union Territory/National Capital Territory of Delhi,
irrespective of the nature of their user or occupation. The second view is that since
there is always a presumption of constitutionality in favour of the statutes and
also because the declaration of invalidity or inapplicability of a statute should be
only to the extent the enactment is clearly outside the legislative competence of
the legislative body making it or is squarely covered by the ban or prohibition in
question, the declaration of invalidity should not extend to the extent the
enactments can be related to and upheld with reference to some constitutional
provision, even though not cited by or recited in the enactment. Similarly, the
declaration of inapplicability should only be to the extent the law is plainly
covered by the ban or prohibition, as the case may be. What is not covered by
the constitutional bar should be held to be applicable and effective. In our
respectful opinion the latter view is consistent with the well-known principles of
constitutional interpretation and should be preferred. We may pause here and explain
our view-point. If the law had expressly stated that it is a law made under and with
reference to clause (2) of Article 289, no further question would have arisen. The only
question is where it does not say so, can its validity or applicability be sustained with
reference to clause (2). In our considered opinion, it should be so sustained, even
though it may be that the appellant-corporations have not chose to argue this point
specifically. As would be evident from some of the decisions referred to hereinafter,
the fact that a party or a government does not choose to put forward an argument
cannot be a ground for the court not to declare the correct position in law. The
appellants are saying that all the properties of the States are not exempt because the
taxes levied by them do not constitute "Union taxation" within the main of clause (1)
of Article 289. We have not agreed with them. We have held that the taxes levied by
the aforesaid enactments do constitute "Union taxation" within the meaning of clause
(1) of Article 289 and that by virtue of the exemption provided by clause (1), taxes are
not leviable on State properties. In view of the fact that clauses (1) and (2) of Article
289 go together, form part of one scheme and have to be read together, we cannot
ignore the operation and applicability of clause (2), at the same time.
[Finally, to conclude, the Learned Judge held (albeit with a prospective effect):]
The following conclusions flow from the above discussion:
(a) the property taxes levied by and under the Punjab Municipal Act, 1911, the New
Delhi Municipal Corporation Act, 1994 and the Delhi Municipal Corporation Act,
1957 constitute "Union taxation" within the meaning of clause (1) of Article 289 of
the Constitution of India;
(b) the levy of property taxes under the aforesaid enactments on lands and/or
buildings belonging to the State governments is invalid and incompetent by virtue of
the mandate contained in clause (1) of Article 289. However, if any land or building is
used or occupied for the purposes of any trade or business - trade or business as
explained in the body of this judgment - carried on by or on behalf of the State
government, such land or building shall be subject to levy of property taxes levied by
the said enactments. In other words, State property exempted under clause (1) means
such property as is used for the purpose of the government and not for the purposes of
trade or business;
(c) it is for the authorities under the said enactments to determine with notice to the
affected State government, which land or building is used or occupied for the
purposes of any trade or business carried on by or on behalf of that State government.
Comment: One of the clinching factors why the impugned taxation was given the
status of ‘Union Taxation’ and not ‘State Taxation’ was the fact that despite the
special constitutional status accorded to it, Delhi continues to be an Union Territory.
However, this formulation is under severe strains owing to contemporary political
developments (predominantly featuring the Government and the erstwhile Lieutenant
General), leading to the Government asking for a re-look into the NDMC ratio. Only
time will decide the outcome of such tussle, but the fact that clearlyemerges out of
this case is a meticulous demarcation of the scope of, and inherent differences
between, Articles 285 and 289 of the Constitution.
On ‘Market Fees’
Case: Kewal Krishan Puri v. State of Punjab, AIR 1980 SC 1008 (Coram:
Chandrachud, C.J., Bhagwati, Pathak, M. Fazal Ali, Untwalia, JJ.)
Under the various provisions of the Punjab Agricultural Produce Markets Act, market
areas and market yards were declared, putting restrictions on the traders to carry on
their trade. The traders were required to take out licences on payment of a licence fee.
Under Section 23 of the Act, a Market Committee was required and authorised to levy
on ad valorem basis fees on the agricultural produce bought or sold by licensees in the
notified market area at a rate not exceeding the rate mentioned in Section 23 from
time to time for every one hundred rupees. In the bifurcated States of Punjab and
Haryana, this rate of market fee was gradually raised from 50 paise to Rs. 2/- and then
to Rs. 3/- per hundred rupees. In discussing the constitutionality of the impugned
provision, the Court makes certain very pertinent observations with respect to the
difference between a ‘Tax’ and a ‘Fee’, this distinction being crucial to the
understanding of the Financial Relations between the union and the States. It also
categorically lays down the objects and purposes for which such market fees can be
levied.
Per Untwalia, J.:
[The Learned Judge, right at the outset, underlined the assertion that the Constitution
provides for a difference between ‘taxes’ and ‘fees’. He opined:]
The Constitution [...] clearly draws a distinction between the imposition of a tax by a
Money Bill and the impost of fees by any other kind of bill. So also in the Seventh
Schedule both in List I and in a distinction has been maintained in relation to the
entries of tax and fees. In the Union List entries 82 to 92A relate to taxes and duties
and entry 96 carves out the legislative field for fees in respect of any of the matters in
the said list except the fees taken in any Court. Similarly in the State List entries
relating to taxes are entries 46 to 63 and entry 66 provides for fees in respect of any of
the matters in List II but not including fees taken in any Court. Entry relating to fees
in List III is entry 47. Our Constitution, therefore, recognises a different and distinct
connotation between taxes and fees.
[After discussing a catena of cases dealing with different aspects of taxes and fees, the
Learned Judge observed:]
From a conspectus of the various authorities of this Court we deduce the following
principles for satisfying the tests for a valid levy of market fees on the agricultural
produce bought or sold by licensees in a notified market area:
(1) That the amount of fee realised must be earmarked for rendering services
to the licensees in the notified market area and a good and substantial portion
of it must be shown to be expanded for this purpose.
(2) That the services rendered to the licensees must be in relation to the
transaction of purchase or sale of the agricultural produce.
(3) That while rendering services in the market area for the purpose of
facilitating the transactions of purchase and sale with a view to achieve the
objects of the marketing legislation it is not necessary to confer the whole of
the benefit on the licensees but some special benefits must be conferred, on
them which have a direct, close and reasonable correlation between the
licensees and the transactions.
(4) That while conferring some special benefits on the licensees it in

permissible to render such service in the market which may be in the general
interest of all concerned with the transactions taking place in the market.
(5) That spending the amount of market fees for the purpose of augmenting
the agricultural produce, its facility of transport in villages and to provide
other facilities meant mainly or exclusively for the benefit of the agriculturists
is not permissible on the ground that such service in the long run go to
increase the volume of transactions in the market ultimately benefiting the
traders also. Such an indirect and remote benefit to the traders is in no sense a
special benefit to them.
(6) That the element of quid pro quo may not be possible, or even necessary,
to be established with arithmetical exactitude but even broadly and reasonably
it must be established by the authorities who charge the fees that the amount is
being spent for rendering services to those on whom falls the burden of the
fee.
(7) At least a good and substantial portion of the amount collected on account
of fees, may be in the neighbourhood of two-thirds or three-fourths, must be
shown with reasonable certainty as being spent for rendering services of the
kind mentioned above.
[In light of the above tests, he went on to check as to whether the impugned law in
question involved a valid levy of market fees. He held:]
In face of the view of the law expressed by us above the propaganda in favour of the
agricultural improvement and expenditure for production and betterment of
agricultural produce will be in the general interest of agriculture in the market area.
The whole of the State is divided into market areas. So long as the concept of fee
under our Constitution remains distinct and limited in contrast to tax such
expenditure out of the market fee cannot be countenanced in law. [...] No Market
Committee can be permitted to utilise the fund for an ulterior purpose
howsoever benevolent, laudable and charitable the object may be. The whole
concept of fee will collapse if the amount realised by market fees could be
permitted to be spent in this fashion.
[He went on to conclude:]
But taking a reasonable and practical view of the matter and on appreciation of the
true picture of justifiable and legal expenditure in relation to the market fee income,
even though it had to be done on the basis of some reasonable guess work, we are not
inclined to disturb the raising of an imposition of the rate of market fee upto Rs.
2/- per hundred rupees by the various Market Committees and the Boards both in
the State of Punjab and Haryana. After all, considerable development work seems to
have been done by many Market Committees in their respective markets. The
charging of fee @ Rs. 2/-, therefore, is justified and fit to be sustained. We
accordingly do it. As pointed out earlier the dealers of Haryana did not feel aggrieved
when the High Court maintained the raising of market fee to the extent of Rs. 2/- per
hundred rupees. We are, however, not inclined to uphold the raising of the fee from
Rs. 2/- to Rs. 3/-, as on the materials placed before us it is clear that this has been
done chiefly because of the wrong impression of law that the amount of market
fee can be spent for any development work in the notified market area and
specially for the development of agriculture and the welfare of the agriculturists.
On the basis of the facts and figures placed before us from the High Court records and
also some new materials filed here we have come to the conclusion that there was no
justification in raising the fee from Rs. 2/- to Rs. 3/-.
Comment: The case is noteworthy because of the specific assertion made by

Untwalia, J. with respect to the situations and conditions when such market fees can
be levied. The very fact that the Court scrutinised the increase of the fees, looked at
the justifications thereof, and decided to only partly uphold the increase, based on the
principles as propounded, certainly point out the efficacy and utility of the criteria
evolved.
Conclusion
In the model of co-operative federalism that India follows, the issue of Financial Relations
assumes a critical position not only in terms of the economic dimensions that it entails, but
also in terms of its political ramifications. In the coming days, with the Goods and Services
Tax (GST) regime becoming the unified and consolidated indirect tax regime, it can be
reasonably speculated that there is going to be a whole new of constitutional jurisprudence
ushering in, so far as the issues pertaining to fiscal federalism are concerned.
Section E
Imposition of President’s Rule
Introduction
The Emergency provisions in any Constitution essentially serve the purpose of a necessary
evil. While no one denies the problems associated with Emergencies (who can ever forget the
dark days of 1975 to 1977 where civil liberties were trampled by an authoritarian State), it is
also true that a Constitution always has to be ready to face the utmost eventualities and
unforeseen circumstances. And that is what Emergency provisions are there for.
Emergencies are of three types – emergencies proclaimed under Article 352, imposition of
President’s Rule in States (also referred to as breakdown of constitutional machinery, or
simply, constitutional emergency) under Article 356, and Financial Emergency under Article
360. Out of these, Financial Emergency has never been required to be proclaimed in India.
After the gruesome experience of the 1975 Emergency, such significant procedural and
substantive changes were made to the Emergency Provisions contained in Article 352 and
provisions concomitant thereto, that Article 352 has completely lost its teeth. Therefore, the
only other type of emergencies, which always comes in the face of political storms and has a
deep-rooted impact on the nature of the federal polity and centre-state relations, is the
imposition of President’s Rule under Article 356. This Chapter specifically discusses some of
the landmark cases dealing with the imposition of President’s Rule.
On the Justifications for Imposition of Article 356
Case: S.R Bommai v. Union of India, AIR 1994 SC 1918 (Coram: Pandian,
Ahmadi, Kuldip Singh, Verma, Sawant, Ramaswami, Agrawal, Dayal, Jeevan
Reddy, JJ.)
The Janta Dal had formed government in the Karnataka after the 1985 assembly
elections, with S.R Bommai ascending to the post of Chief Minister. In April 1989, a
year before the next election, some MLAs of the part wrote to the Governor declaring
the withdrawal of their support to the government, which would have put the
government in minority. Accordingly, the Governor sent a report to the President
detailing these developments. However, within a span of days, some of the MLAs
who had purportedly withdrawn their support wrote to the Governor claiming that
their signatures to the initial letter had been acquired by misrepresentation and
reaffirmed their support to the Chief Minister, who requested the Governor to allow
him a floor test to prove his majority in the assembly. The Governor sent a second
report to the president following the new developments.
The President issued a proclamation, exercising his power under Article 356,
dismissing the Bommai government. He dissolved the legislative assembly and
assumed the administration of the state.
President’s rule was also imposed in Meghalaya under questionable circumstances

regarding the majority of the government in the assembly. The Supreme Court
subsequently set aside the proclamation, but thereafter it was approved by the
Parliament.
The assembly elections in 1990 saw the BJP coming to power in UP, Madhya
Pradesh, Himachal Pradesh and Rajasthan. Following the demolition of the Babri
Masjid, the central government contended that the leaders of the party had
undermined the constitutional tenet of Secularism by encouraging the kar sevaks from
their respective states to partake in the demolition and had welcomed them in a grand
manner upon their return after the incident. Furthermore, many of them themselves
were part of the now banned RSS. Thus, they were unfit to carry on the governance of
their states. A presidential proclamation was issued in 1993 dismissing the
governments and legislative assemblies of Madhya Pradesh, Himachal Pradesh and
Rajasthan as the Uttar Pradesh government had already resigned, and imposing
President’s rule in the 4 states.
In Nagaland the Congress Party saw a split in 1988 with the new faction claiming to
have the majority and staking the claim to form the government. However, the
Governor in his report to the President contended that there was no actual split and the
MLAs claiming to have split and been confined against their will, despite the MLAs
themselves having denied this to the Chief Secretary of the State. Moreover, the
Governor indicated that some of these MLAs had been in contact with the insurgents
and if the affairs were allowed to continue as they were, it would affect the stability of
the state. The President in accordance with the Governor’s recommendation
proclaimed the imposition of President’s Rule in the state.
All these proclamations were challenged in the respective High Courts, of which
some were rejected, some were accepted while others were pending. The Supreme
Court clubbed the cases together in S.R Bommai v. Union of India and transferred all
of them to itself with a view to set out concrete guidelines regarding the usage of
Article 356 by the Centre to impose President’s rule in the states.
We shall, for our purposes, discuss the judgements delivered by Sawant and Jeevan
Reddy, JJ., which form the crux of the majority opinion.
Per Sawant, J. (for himself and Kuldip Singh, J.):
Article 356 has a vital bearing on the democratic parliamentary form of Government
and the autonomy of the States under the federal constitution that we have adopted.
The interpretation of the article has, therefore, once again engaged the attention of this
Court in the background of the removal of the Governments and the dissolution of the
Legislative Assemblies in six States with which we are concerned here, on different
occasions and in different situations by the exercise of power under the article. The
crucial question that falls for consideration in all these matters is whether the
President has unfettered powers to issue Proclamation under Article 356(1) of
the Constitution. The answer to this question depends upon the answers to the
following questions: (a) Is the Proclamation amenable to judicial review? (b) If
yes, what is the scope of the judicial review in this respect? and (c) What is the
meaning of the expression "a situation has arisen in which the Government of
the State cannot be carried on in accordance with the provisions of this
Constitution" used in Article 356(1)?
[The Learned Judge analyses the Emergency Provisions in the Constitution including
Article 356, and opines:]
It is in the light of these other provisions relating to the emergency that we have to
construe the provisions of Article 356. The crucial expressions in Article 356(i) are if
the President, "on the receipt of report from the Governor of a State or otherwise" "is
satisfied" that "the situation has arisen in which the Government of the State cannot
be carried on" "in accordance with the provisions of this Constitution". The
conditions precedent to the issuance of the Proclamation, therefore, are: (a) that
the President should be satisfied either on the basis of a report from the
Governor of the State or otherwise, (b) that in fact a situation has arisen in
which the Government of the State cannot be carried on in accordance with the
provisions of the Constitution. In other words, the President's satisfaction has to
be based on objective material. That material may be available in the report sent to
him by the Governor or otherwise or both from the report and other sources. Further,
the objective material so available must indicate that the Government of the State
cannot be carried on in accordance with the provisions of the Constitution. Thus the
existence of the objective material showing that the Government of the State cannot
be carried on in accordance with the provisions of the Constitution is a condition
precedent before the President issues the Proclamation. Once such material is shown
to exist, the satisfaction of the President based on the material is not open to
question. However, if there is no such objective material before the President, or
the material before him cannot reasonably suggest that the Government of the
State cannot be carried on in accordance with the provisions of the Constitution,
the Proclamation issued is open to challenge.
It is further necessary to note that the objective material before the President must
indicate that the Government of the State "cannot be carried on in accordance with the
provisions of this Constitution". In other words, the provisions require that the
material before the President must be sufficient to indicate that unless a
Proclamation is issued, it is not possible to carry on the affairs of the State as per
the provisions of the Constitution. It is not every situation arising in the State but a
situation which shows that the constitutional Government has become an
impossibility, which alone will entitle the President to issue the Proclamation. These
parameters of the condition precedent to the issuance of the Proclamation indicate
both the extent of and the limitations on, the power of the judicial review of the
Proclamation issued. [...]
[Referring to authorities on whether such power of judicial review can be exercised,

the Learned Judge observes:]
From these authorities, one of the conclusions which may safely be drawn is that the
exercise of power by the President under Article 356(1) to issue Proclamation is
subject to the judicial review at least to the extent of examining whether the
conditions precedent to the issuance of the Proclamation have been satisfied or
not. This examination will necessarily involve the scrutiny as to whether there existed
material for the satisfaction of the President that a situation had arisen in which the
Government of the State could not be carried on in accordance with the provisions of
the Constitution. Needless to emphasise that it is not any material but material which
would lead to the conclusion that the Government of the State cannot be carried on in
accordance with the provisions of the Constitution which is relevant for the purpose.
It has further to be remembered that the article requires that the President "has to be
satisfied" that the situation in question has arisen. Hence the material in question has
to be such as would induce a reasonable man to come to the conclusion in question.
[...] Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the
President dehors the material but a legitimate inference drawn from the material
placed before him which is relevant for the purpose. In other words, the President
has to be convinced of or has to have sufficient proof of information with regard
to or has to be free from doubt or uncertainty about the state of things indicating
that the situation in question has arisen. Although, therefore, the sufficiency or
otherwise of the material cannot be questioned, the legitimacy of inference
drawn from such material is certainly open to judicial review.
It has also to be remembered in this connection that the power exercised by the
President under Article 356(1) is on the advice of the Council of Ministers tendered
under Article 74(1) of the Constitution. The Council of Ministers under our system
would always belong to one or the other political party. In view of the pluralist
democracy and the federal structure that we have accepted under our Constitution, the
party or parties in power (in case of coalition Government) at the Centre and in the
States may not be the same. Hence there is a need to confine the exercise of power
under Article 356(1) strictly to the situation mentioned therein which is a condition
precedent to the said exercise. That is why the Framers of the Constitution have taken
pains to specify the situation which alone would enable the exercise of the said power.
The situation is no less than one in which "the Government of the State cannot be
carried on in accordance with the provisions of this Constitution". A situation short of
the same does not empower the issuance of the Proclamation. [...] Hence, situations
which can be remedied or do not create an impasse, or do not disable or interfere
with the governance of the State according to the Constitution, would not merit
the issuance of the Proclamation under the article. [...]
The Learned Judge refers to the Report of the Sarkaria Commission on Centre-State
Relations to outline situations where Article 356 can be invoked. Quoting the report,
he observes:]
It will be convenient at this stage itself, also to illustrate the situations which may not
amount to failure of the constitutional machinery in the State inviting the Presidential
power under Article 356(1) and where the use of the said power will be improper. The
examples of such situations are given in the Report in paragraph 6.5.01. They are:
"(i) A situation of maladministration in a State where a duly constituted

Ministry enjoying majority support in the Assembly, is in office. Imposition of
President's rule in such a situation will be extraneous to the purpose for which
the power under Article 356 has been conferred. It was made indubitably clear
by the Constitution- framers that this power is not meant to be exercised for
the purpose of securing good Government.
(ii) Where a Ministry resigns or is dismissed on losing its majority support in

the Assembly and the Governor recommends, imposition of President's rule
without exploring the possibility of installing an alternative Government
enjoying such support or ordering fresh elections.
(iii)Where, despite the advice of a duly constituted Ministry which has not
been defeated on the floor of the House, the Governor declines to dissolve the
Assembly and without giving the Ministry an opportunity to demonstrate its
majority support through the 'floor test', recommends its supersession and
imposition of President's rule merely on his subjective assessment that the
Ministry no longer commands the confidence of the Assembly.
(iv) Where Article 356 is sought to be invoked for superseding the duly
constituted Ministry and dissolving the State Legislative Assembly on the sole
ground that, in the General Elections to the Lok Sabha, the ruling party in the
State, has suffered a massive defeat.
(v) Where in a situation of 'internal disturbance', not amounting to or verging

on abdication of its governmental powers by the State Government, all
possible measures to contain the situation by the Union in the discharge of its
duty, under Article 355, have not been exhausted.
(vi) The use of the power under Article 356 will be improper if, in the
illustrations given in the preceding paragraphs 6.4.10, 6.4.11 and 6.4.12, the
President gives no prior warning or opportunity to the State Government to
correct itself. Such a warning can be dispensed with only in cases of extreme
urgency where failure on the part of the Union to take immediate action,
under Article 356, will lead to disastrous consequences.
(vii) Where in response to the prior warning or notice or to an informal or

formal direction under Articles 256, 257, etc., the State Government either
applies the corrective and thus complies with the direction, or satisfies the
Union Executive that the warning or direction was based on incorrect facts, it
shall not be proper for the President to hold that 'a situation has arisen in
which the Government of the State cannot be carried on in accordance with
the provisions of this Constitution'. Hence, in such a situation, also, Article
356 cannot be properly invoked.
(viii) The use of this power to sort out internal differences or intra-party
problems of the ruling party would not be constitutionally correct.
(ix) This power cannot be legitimately exercised on the sole ground of

stringent financial exigencies of the State.
(x) This power cannot be invoked, merely on the ground that there are serious
allegations of corruption against the Ministry.
(xi) The exercise of this power, for a purpose extraneous or irrelevant to the
one for which it has been conferred by the Constitution, would be vitiated by
legal mala fides."
We have no hesitation in concurring broadly with the above illustrative occasions

where the exercise of power under Article 356(1) would be improper and uncalled for.
[Going ahead, he looks at how important Federalism and Democracy are to our
Constitutional Governance, and how an imposition of Article 356 can potentially have
adverse impacts of these basic tenets. He observes:]
It will be an inexcusable error to examine the provisions of Article 356 from a pure
legalistic angle and interpret their meaning only through jurisdictional technicalities.
The Constitution is essentially a political document and provisions such
as Article 356 have a potentiality to unsettle and subvert the entire constitutional
scheme. The exercise of powers vested under such provisions needs, therefore, to
be circumscribed to maintain the fundamental constitutional balance lest the
Constitution is defaced and destroyed. This can be achieved even without bending
much less breaking the normal rules of interpretation, if the interpretation is alive to
the other equally important provisions of the Constitution and its bearing on them.
Democracy and federalism are the essential features of our Constitution and are
part of its basic structure. Any interpretation that we may place on Article
356 must, therefore help to preserve and not subvert their fabric. The power
vested de jure in the President but de facto in the Council of Ministers under Article
356 has all the latent capacity to emasculate the two basic features of the Constitution
and hence it is necessary to scrutinise the material on the basis of which the advice is
given and the President forms his satisfaction more closely and circumspectly. This
can be done by the courts while confining themselves to the acknowledged
parameters of the judicial review as discussed above, viz., illegality, irrationality
and mala fides. Such scrutiny of the material will also be within the judicially
discoverable and manageable standards.
[On the nature of Centre-State Relations, the Learned Judge emphatically observes:]
[...] States have an independent constitutional existence and they have as

important a role to play in the political, social, educational and cultural life of
the people as the Union. They are neither satellites nor agents of the Centre. The
fact that during emergency and in certain other eventualities their powers are
overridden or invaded by the Centre is not destructive of the essential federal
nature of our Constitution. The invasion of power in such circumstances is not a
normal feature of the Constitution. They are exceptions and have to be resorted
to only occasionally to meet the exigencies of the special situations. The
exceptions are not a rule.
[...] So long as the States are not mere administrative units but in their own right
constitutional potentates with the same paraphernalia as the Union, and with
independent Legislature and the Executive constituted by the same process as the
Union, whatever the bias in favour of the Centre, it cannot be argued that merely
because (and assuming it is correct) the Constitution is labelled unitary or quasi-
federal or a mixture of federal and unitary structure, the President has unrestricted
power of issuing Proclamation under Article 356(1). If the Presidential powers under
the said provision are subject to judicial review within the limits discussed above,
those limitations will have to be applied strictly while scrutinising the concerned
material.
[He concludes the discussion on the Judicial Review of such an imposition by

stating:]
Thus the federal principle, social pluralism and pluralist democracy which form
the basic structure of our Constitution demand that the judicial review of the
Proclamation issued under Article 356(1) is not only an imperative necessity but
is a stringent duty and the exercise of power under the said provision is confined
strictly for the purpose and to the circumstances mentioned therein and for none
else. It also requires that the material on the basis of which the power is
exercised is scrutinised circumspectly.
[He discusses different other finer aspects of Article 356, analyses the individual
cases involving the different states in contention, and puts special emphasis on the
significance of the principle of secularism to our constitutional fabric. He opines that
it is a part of the Basic Structure of the Constitution, and therefore, any activity of the
government (or the political party constituting it) that is in violation of this secular
fabric can become a reason justifying the imposition of President’s Rule in that state.
Thus, he upholds the constitutionality of the imposition of President’s Rule in the
BJP-ruled states in contention. Finally, he summarises his key observations thus:]
Our conclusions, therefore, may be summarised as under
I. The validity of the Proclamation issued by the President under Article

356(1) is judicially reviewable to the extent of examining whether it was
issued on the basis of any material at all or whether the material was
relevant or whether the Proclamation was issued in the mala fide exercise
of the power. When a prima facie case is made out in the challenge to the
Proclamation, the burden is on the Union Government to prove that the
relevant material did in fact exist, such material may be either the report of the
Governor or other than the report.
II. Article 74(2) is not a bar against the scrutiny of the material on the basis of
which the President had arrived at his satisfaction.
III. When the President issues Proclamation under Article 356(1), he may
exercise all or any of the powers under sub-clauses (a), (b) and (c) thereof. It is
for him to decide which of the said powers he will exercise, and at what stage,
taking into consideration the exigencies of the situation.
IV. Since the provisions contained in clause (3) of Article 356 are intended to
be a check on the powers of the President under clause (1) thereof, it will not
be permissible for the President to exercise powers under sub- clauses (a), (b)
and (c) of the latter clause, to take irreversible actions till at least both the
Houses of Parliament have approved of the Proclamation. It is for this reason
that the President will not be justified in dissolving the Legislative Assembly
by using the powers of the Governor under Article 174(2)(b) read with Article
356(1)(a) till at least both the Houses of Parliament approve of the
Proclamation.
V. If the Proclamation issued is held invalid, then notwithstanding the fact that
it is approved by both Houses of Parliament, it will be open to the court to
restore the status quo ante to the issuance of the Proclamation and hence to
restore the Legislative Assembly and the Ministry.
VI. In appropriate cases, the court will have power by an interim injunction, to
restrain the holding of fresh elections to the Legislative Assembly pending the
final disposal of the challenge to the validity of the Proclamation to avoid the
fait accompli and the remedy of judicial review being rendered fruitless.
However, the court will not interdict the issuance of the Proclamation or the
exercise of any other power under the Proclamation.
VII. While restoring the status quo ante, it will be open for the court to mould
the relief suitably and declare as valid actions taken by the President till that
date. It will also be open for Parliament and the Legislature of the State to
validate the said actions of the President.
VIII. Secularism is a part of the basic structure of the Constitution. The

acts of a State Government which are calculated to subvert or sabotage
secularism as enshrined in our Constitution, can lawfully be deemed to
give rise to a situation in which the Government of the State cannot be
carried on in accordance with the provisions of the Constitution.
IX. The Proclamations dated April 21, 1989 and October 11, 1991 and the
action taken by the President in removing the respective Ministries and the
Legislative Assemblies of the State of Karnataka and the State of Meghalaya
[...] are unconstitutional. The Proclamation dated August 7, 1988 in respect of
State of Nagaland is also held unconstitutional. However, in view of the fact
that fresh elections have since taken place and the new Legislative Assemblies
and Ministries have been constituted in all the three States, no relief is granted
consequent upon the above declarations. However, it is declared that all
actions which might have been taken during the period the Proclamation
operated, are valid. [...]
X. The Proclamations dated December 15, 1992 and the actions taken by the
President removing the Ministries and dissolving the Legislative Assemblies
in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to
the said Proclamations are not unconstitutional. [...]
Per Jeevan Reddy, J. (for himself and Agrawal, J.):
[The Learned Judge was also in broad agreement with all the points advanced by
Sawant, J., except conclusion no. 3. He summarised his conclusions thus:]
(1) Article 356 of the Constitution confers a power upon the President to be
exercised only where he is satisfied that a situation has arisen where the
Government of a State cannot be carried on in accordance with the provisions
of the Constitution. Under our Constitution, the power is really that of the
Union Council of Ministers with the Prime Minister at its head. The
satisfaction contemplated by the article is subjective in nature.
(2) The power conferred by Article 356 upon the President is a conditioned
power. It is not an absolute power. The existence of material which may
comprise of or include the report(s) of the Governor is a pre-condition. The
satisfaction must be formed on relevant material. The recommendations of the
Sarkaria Commission with respect to the exercise of power under Article
356 do merit serious consideration at the hands of all concerned.
(3) Though the power of dissolving of the Legislative Assembly can be said to
be implicit in clause (1) of Article 356, it must be held, having regard to the
overall constitutional scheme that the President shall exercise it only after the
Proclamation is approved by both Houses of Parliament under clause (3) and
not before. Until such approval, the President can only suspend the Legislative
Assembly by suspending the provisions of Constitution relating to the
Legislative Assembly under sub-clause (c) of clause (1). The dissolution of
Legislative Assembly is not a matter of course. It should be resorted to only
where it is found necessary for achieving the purposes of the Proclamation.
(4) The Proclamation under clause (1) can be issued only where the situation
contemplated by the clause arises. In such a situation, the Government has to
go. There is no room for holding that the President can take over some of the
functions and powers of the State Government while keeping the State
Government in office. There cannot be two Governments in one sphere.
(5) (a) Clause (3) of Article 356 is conceived as a check on the power of the
President and also as a safeguard against abuse. In case both Houses of
Parliament disapprove or do not approve the Proclamation, the Proclamation
lapses at the end of the two- month period. In such a case, Government which
was dismissed revives. The Legislative Assembly, which may have been kept
in suspended animation gets reactivated. Since the Proclamation lapses and is
not retrospectively invalidated the acts done, orders made and laws passed
during the period of two months do not become illegal or void. They are,
however, subject to review, repeal or modification by the
Government/Legislative Assembly or other competent authority.
(b) However, if the Proclamation is approved by both the Houses within two
months, the Government (which was dismissed) does not revive on the expiry
of period of Proclamation or on its revocation. Similarly, if the Legislative
Assembly has been dissolved after the approval under clause (3), the
Legislative Assembly does not revive on the expiry of the period of
Proclamation or on its revocation.
(6) Article 74(2) merely bars an enquiry into the question whether any, and if
so, what advice was tendered by the Ministers to the President. It does not bar
the court from calling upon the Union Council of Ministers (Union of India) to
disclose to the court the material upon which the President had formed the
requisite satisfaction. The material on the basis of which advice was tendered
does not become part of the advice. Even if the material is looked into by or
shown to the President, it does not partake the character of advice. [...]
(7) The Proclamation under Article 356(1) is not immune from judicial
review. The Supreme Court or the High Court can strike down the
Proclamation if it is found to be mala fide or based on wholly irrelevant or
extraneous grounds. The deletion of clause (5) [which was introduced by
38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on
the reviewability of the action. When called upon, the Union of India has to
produce the material on the basis of which action was taken. It cannot refuse
to do so, if it seeks to defend the action. The court will not go into the
correctness of the material or its adequacy. Its enquiry is limited to see
whether the material was relevant to the action. Even if part of the material is
irrelevant, the court cannot interfere so long as there is some material which is
relevant to the action taken.
(8) If the court strikes down the Proclamation, it has the power to restore the
dismissed Government to office and revive and reactivate the Legislative
Assembly wherever it may have been dissolved or kept under suspension. In
such a case, the court has the power to declare that acts done, orders passed
and laws made during the period the Proclamation was in force shall remain
unaffected and be treated as valid. Such declaration, however, shall not
preclude the Government/Legislative Assembly or other competent authority
to review, repeal or modify such acts, orders and laws.
(9) The Constitution of India has created a federation but with a bias in favour
of the Centre. Within the sphere allotted to the States, they are supreme.
(10) Secularism is one of the basic features of the Constitution. While freedom
of religion is guaranteed to all persons in India, from the point of view of the
State, the religion, faith or belief of a person is immaterial. To the State, all are
equal and are entitled to be treated equally. In matters of State, religion has no
place. No political party can simultaneously be a religious party. Politics and
religion cannot be mixed. Any State Government which pursues unsecular
policies or unsecular course of action acts contrary to the constitutional
mandate and renders itself amenable to action under Article 356.
(11) The Proclamation dated April 21, 1989 in respect of Karnataka [...] and
the Proclamation dated October 11, 1991 in respect of Meghalaya [...] are
unconstitutional. But for the fact that fresh elections have since taken place in
both the States and new Legislative Assemblies and Governments have come
into existence we would have formally struck down the Proclamations and
directed the revival and restoration of the respective Governments and
Legislative Assemblies. The Civil Appeal[s] are allowed accordingly. Civil
Appeal [...] relating to Nagaland is disposed of in terms of the opinion
expressed by us on the meaning and purport of Article 74(2) of the
Constitution.
(12) The Proclamations dated January 15, 1993 in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh [...] respectively are not unconstitutional.
Comment: It is to be noted that Pandian, J., broadly agreed to most of the conclusions
of Sawant, J., and some of the reasonings of Jeevan Reddy, J. The only minority
voices were those of Verma, J. (for himself and Dayal, J.). Ramaswamy and Ahmadi,
JJ. also provided dissenting opinions, though some of their observations are also in
broad concurrence with the majority views. The key point that emerges out of this
case is that if the imposition of President’s Rule is tainted by extraneous or mala fide
considerations, the Court will have every right to judicially review it and, if required,
declare such imposition as constitutionally invalid. The Sarkaria Commission’s
recommendations specifying the dos and don’ts of Article 356 are worthy of note in
this context. Finally, the categorical assertion that Secularism forms a part of the
Basic Structure of the Constitution (although one can definitely raise questions as to
whether the Basic Structure Doctrine, which was once evolved to test the
constitutional validity of constitutional amendments can be used to test the validity of
executive orders) is also a very relevant point that was asserted in this case.
On Article 356 and Mala Fides
Case: Rameshwar Prasad v. Union of India, (2005) 7 SCC 625 (Coram:

Sabharwal, C.J., Balakrishnan, Agrawal, Bhan, Pasayat, JJ.)
The challenge in the present case was to the constitutional validity of the Presidential
Proclamation dated 23-5-2005, ordering the dissolution of Bihar’s Legislative
Assembly. No single party had majority in the assembly after the assembly elections
in the State. However, 23 MLAs of the Lok Janshakti Parti (LJP) declared that they
would support the NDA alliance led by Nitish Kumar, and thereby granted them
majority in the house. However, the Governor, in Delhi at the time, sent a report to the
President contending that the allegiance of these MLAs was procured through illegal
allurement and bribery. Moreover, he alleged in his Report that it was case of
defection which called for the disqualification of the MLAs. Thus, the government of
the State was not possible in accordance with the provisions of the constitution and
the Legislative Assembly should be dissolved and re-elections ordered. The Central
Council of Ministers, in a display of uncharacteristic haste, approved the issuance of
proclamation within hours of the receipt of the Governor’s report and advised the
same to the President, who was in Moscow at the time, thorough fax. The President
signed the Proclamation and faxed it back, which was immediately issued. The
aggrieved parties claimed that it was a clear case of political manoeuvring and misuse
of Article 356 to prevent the formation of Government by a particular party.
It was the first case of its kind where before even the first meeting of the legislative
assembly after the elections, its dissolution had been ordered on the ground that
attempts are being made to cobble together a majority by illegal means and lay claim
to form the government of the State, and if these attempts continued it would amount
to tampering with the provisions of the constitution. The main question that arose in
the petitions was whether the dissolution of the legislative assembly could be ordered
under Article 356(1) of the constitution in order to prevent the staking of claim by a
particular political party.
Per Sabharwal, C.J. (for himself, Agrawal and Bhan, JJ.):
One of the questions of far reaching consequence that arises is whether the dissolution
of Assembly under Article 356(1) of the Constitution of India can be ordered to
prevent the staking of claim by a political party on the ground that the majority has
been obtained by illegal means.
[To answer this question, he went into the facts and circumstances that preceded such
dissolution, and observed:]
The common thread in all the emergency provisions is that the resort to such
provision has to be in exceptional circumstances when there be the real and
grave situation calling for the drastic action. Sarkaria Commission as also this
Court has noted the persistent criticism in ever-mounting intensity, both in regard to
the frequency and the manner of the use of the power under Article 356. The Sarkaria
Commission has noticed that gravamen of the criticism is that, more often than not,
these provisions have been misused, to promote the political interests of the party in
power at the Centre. Some examples have been noted of situations in which the power
of Article 356 was invoked improperly if not illegally. It is noted that the
constitutional framers did not intend that this power should be exercised for the
purpose of securing good Government. It also notices that this power cannot be
invoked, merely on the ground that there are serious allegations of corruption against
the Ministry.
Whether it is a case of existing Government losing the majority support or of

installation of new Government after fresh elections, the act of the Governor in
recommending dissolution of Assembly should be only with sole object of
preservation of the Constitution and not promotion of political interest of one or
the other party.
[Turning towards the facts of the case, he observed:]
Undisputedly, a Governor is charged with the duty to preserve, protect and defend the
Constitution and the laws, has a concomitant duty and obligation to preserve
democracy and not to permit the 'canker' of political defections to tear into the vitals
of the Indian democracy. But on facts of the present case, we are unable to accept that
the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the
aforesaid objective. There was no material, let alone relevant, with the Governor
to assume that there were no legitimate realignment of political parties and there
was blatant distortion of democracy by induced defections through unfair,
illegal, unethical and unconstitutional means. The report dated 27th April, 2005
refers to (1) serious attempt to cobble a majority; (2) winning over MLAs by various
means; (3) targeting parties for a split; (4) high pressure moves; (5) offering various
allurements like castes, posts, money etc.; and (6) Horse-trading. Almost similar
report was sent by the Governors of Karnataka and Nagaland leading to the
dissolution of the Assembly of Karnataka and Nagaland, invalidated in Bommai's
case. Further, the contention that the Central Government did not act upon the report
dated 27th April, 2005 is of no relevance and cannot be considered in isolation since
the question is about the manner in which the Governor moved, very swiftly and with
undue haste, finding that one political party may be close to getting majority and the
situation had reached where claim may be staked to form the Government which led
to the report dated 21st May, 2005. It is in this context that the Governor says that
instead of installing a Government based on a majority achieved by a distortion of the
system, it would be preferable that the people/electorate could be provided with one
more opportunity to seek the mandate of the people. This approach makes it evident
that the object was to prevent a particular political party from staking a claim
and not the professed object of anxiety not to permit the distortion of the
political system, as sought to be urged. Such a course is nothing but wholly illegal
and irregular and has to be described as mala fide. The recommendation for
dissolution of the Assembly to prevent the staking of claim to form the Government
purportedly on the ground that the majority was achieved by distortion of system by
allurement, corruption and bribery was based on such general assumptions without
any material which are quite easy to be made if any political party not gaining
absolute majority is to be kept out of governance. No assumption without any basis
whatever could be drawn that the reason for a group to support the claim to form the
Government by Nitish Kumar, was only the aforesaid distortions. That stage had not
reached. It was not allowed to be reached. If such majority had been presented and the
Governor forms a legitimate opinion that the party staking claim would not be able to
provide stable Government to the State, that may be a different situation. Under no
circumstances, the action of Governor can be held to be bona fide when it is
intended to prevent a political party to stake claim for formation of the
Government. After elections, every genuine attempt is to be made which helps in
installation of a popular Government, whichever be the political party.
[After extensively referring to the S.R. Bommai case, the Learned Chief Justice
observed:]
In the present case, like in Bommai's case, there is no material whatsoever except the
ipse dixit of the Governor. The action which results in preventing a political party
from staking claim to form a Government after election, on such fanciful
assumptions, if allowed to stand, would be destructive of the democratic fabric. It
is one thing to come to the conclusion that the majority staking claim to form the
Government, would not be able to provide stable Government to the State but it is
altogether different thing to say that they have garnered majority by illegal means and,
therefore, their claim to form the Government cannot be accepted. In the latter case,
the matter may have to be left to the wisdom and will of the people, either in the same
House it being taken up by the opposition or left to be determined by the people in the
elections to follow. Without highly cogent material, it would be wholly irrational
for constitutional authority to deny the claim made by a majority to form the
Government only on the ground that the majority has been obtained by offering
allurements and bribe which deals have taken place in the cover of darkness but
his undisclosed sources have confirmed such deals. The extra-ordinary emergency
power of recommending dissolution of a Legislative Assembly is not a matter of
course to be resorted to for good governance or cleansing of the politics for the stated
reasons without any authentic material. These are the matters better left to the wisdom
of others including opposition and electorate. It was also contended that the present is
not a case of undue haste. The Governor was concerned to see the trend and could
legitimately come to the conclusion that ultimately, people would decide whether
there was an 'ideological realignment", then there verdict will prevail and the such
realigned group would win elections, to be held as a consequence of dissolution. It is
urged that given a choice between going back to the electorate and accepting a
majority obtained improperly, only the former is the real alternative. The proposition
is too broad and wide to merit acceptance. Acceptance of such a proposition as a
relevant consideration to invoke exceptional power under Article 356 may open a
floodgate of dissolutions and has far reaching alarming and dangerous consequences.
It may also be a handle to reject post-election alignments and realignments on the
ground of same being unethical, plunging the country or the State to another election.
This aspect assumes great significance in situation of fractured verdicts and in the
formation of coalition Governments. If, after polls two or more parties come together,
it may be difficult to deny their claim of majority on the stated ground of such
illegality. These are the aspects better left to be determined by the political parties
which, of course, must set healthy and ethical standards for themselves, but, in any
case, the ultimate judgment has to be left to the electorate and the legislature
comprising also of members of opposition.
[...] Though Bommai has widened the scope of judicial review, but going even by
principles laid in State of Rajasthan's case, the existence of the satisfaction can always
be challenged on the ground that it is mala fide or based on wholly extraneous and
irrelevant grounds. Apart from the fact that the narrow minimal area of judicial review
as advocated in State of Rajasthan's case is no longer the law of the land in view of its
extension in Bommai's case but the present case even when considered by applying
limited judicial review, cannot stand judicial scrutiny as the satisfaction herein is
based on wholly extraneous and irrelevant ground. The main ground being to prevent
a party to stake claim to form the Government.
[Accordingly, he declared the imposition of President’s Rule in the instant case as

unconstitutional].
Per Balakrishnan, J. (dissenting):
[The Learned Judge differed from the majority opinion with respect to the question as
to whether the Governor’s Report was tainted by mala fide considerations. He
observed:]
[...] It is important to note that the writ petitioners have no case that JD(U) or any
other alliance had acquired majority and that they had approached the Governor
staking their claim for forming a Government. No material is placed before us to
show that the JD(U) or its alliance with BJP had ever met the Governor praying that
they had got the right to form a Government. The plea of the petitioners' counsel is
that they were about to form a Government and in order to scuttle that plan the
Governor sent a report whereby the Assembly was dissolved to defeat that plan is
without any basis. The Governor in his report stated that 17 or 18 members of the LJP
had joined the JD(U)-BJP alliance, but no materials have been placed before us to
show that they had, in fact, joined the alliance to form a Government. One letter has
been produced by one of the petitioners and the same is not signed by all the MLAs
and as regards some of them, some others had put their signatures. Therefore, it is
incorrect to say that the Governor had taken steps to see that the Assembly was
dissolved hastily to prevent the formation of a Government under the leadership
of the political party JD(U). If any responsible political party had any case that they
had obtained majority support or were about to get a majority support or were in a
position to form minority Government with the support of some political parties and if
their plea was rejected by the Governor, the position would have been totally
different. No such situation had been reached in the instant case. It is also very
pertinent to note that the order for dissolution of the State Assembly was passed after
about three months of the proclamation imposing the President's Rule was issued
under Article 356(1). When there was such a situation, the only possible way was to
seek a fresh election and if it was done by the President, it cannot be said that it was a
mala fide exercise of power and the dissolution of the Assembly was wholly on
extraneous or irrelevant grounds. It is also equally important that in Karnataka,
Meghalaya and Nagaland cases, there was a democratically-elected Government
functioning and when there is an allegation that it had lost its majority in the
Assembly, the primary duty was to seek a vote of confidence in the Assembly and test
the strength on the floor of the Assembly. Such a situation was not available in the
present case. It was clear that not a single political party or alliance was in a position
to form the Government and when the Assembly was dissolved after waiting for a
reasonable period, the same cannot be challenged on the ground that the Governor in
his report had stated that some horse-trading is going on and some MLAs are being
won over by allurements. These are certainly facts to be taken into consideration by
the Governor. If by any foul means the Government is formed, it cannot be said to
be a democratically- elected Government. If Governor has got a reasonable
apprehension and reliable information such unethical means are being adopted
by the political parties to get majority, they are certainly matters to be brought
to the notice of the President and at least they are not irrelevant matters.
Governor is not the decision-making authority. His report would be scrutinized by the
Council of Ministers and a final decision is taken by the President under Article
174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the
Bihar State Legislative Assembly, is mala fide exercise of power based on totally
irrelevant grounds.
Per Pasayat, J. (dissenting):
[He concurred with Balakrishnan, J. that the said proclamation could not be called
mala fide. In fact, he went one step ahead and, in clear logical antithesis to the
majority, asserted that the Court in S.R. Bommai had not widened the ambit of
Judicial Review of imposition of President’s Rule from the “minimal judicial review”
rule, as was laid down in State of Rajasthan. He observed:]
In the instant case, the Governor had not in reality prevented anybody from staking a
claim. It is nobody's case that somebody had staked a claim. What the Governor had
indicated in his report dated 21.5.2005 [...] was that effort was to get the majority by
tainted means by allurements like money, caste, posts and such unfair and other
objectionable means. When the foundation for the claim was tainted the obvious
inference is that it would not lead to a stable government and the same is clearly
visible. It has been submitted that the parameters of judicial review are extremely
limited so far as the Governor's report is concerned and consequential actions taken
by the President. The Governor cannot be a mute spectator when democratic
process is tampered with by unfair means. The effort is to grab power by
presenting a majority, the foundation of which is based on factors which are
clearly anti democratic in their conception. Parliamentary democracy is a part of
the basic structure of the Constitution and when the majority itself is the
outcome of foul means it is clearly against the mandate given by the electorate. It
can never be said that the electorate wanted that their legislatures after getting their
mandate would become the object of corrupt means. When the sole object is to grab
power at any cost even by apparent unfair and tainted means, the Governor cannot
allow such a government to be installed. By doing so, the Governor would be acting
contrary to very essence of democracy. The purity of electorate process would get
polluted. The framers of the Constitution never intended that democracy or
governance would be manipulated. Defections strike at the root of representative
government. They are unconstitutional, illegal, illegitimate, unethical and improper.
The Tenth Schedule cannot take care of all situations and certainly not in the case of
independents. It would be too hollow to contend that the floor test would cure all
impurity in gathering support of the legislatures. Floor test cannot always be a
measure to restrain the corrupt means adopted and in cobbling the majority. It is also
too much to expect that by exposure of the corrupt means so far as a particular
legislature is concerned, by the people or by the media the situation would improve.
Since there is no material to show that any party staked a claim and on the
contrary as is evident from the initial report of the Governor dated 6.3.2005 that
nobody was in a position to stake a claim and the fact that passage of about three
months did not improve the situation, the Governor was not expected to wait
indefinitely and in the process encourage defections or adoption of other
objectionable activities. It is submitted that ratio in State of Rajasthan's case so far as
the scope of judicial review is concerned has not been expanded in Bommai's case,
and the parameters remain the same.
[Thus, he went on to hold:]
(1) Proclamation under Article 356 is open to judicial review, but to a very
limited extent. Only when the power is exercised mala fide or is based on
wholly extraneous or irrelevant grounds, the power of judicial review can be
exercised. Principles of judicial review which are applicable when an
administrative action is challenged, cannot be applied stricto sensu.
(2) The impugned Notifications do not suffer from any constitutional

invalidity. Had the Governor tried to stall staking of claim regarding majority
that would have fallen foul of the Constitution and the notifications of
dissolution would have been invalid. But, the Governor recommended
dissolution on the ground that the majority projected had its foundation on
unethical and corrupt means which had been and were being adopted to cobble
a majority, and such action is not constitutional. It may be a wrong perception
of the Governor. But it is his duty to prevent installation of a Cabinet where
the majority has been cobbled in the aforesaid manner. It may in a given case
be an erroneous approach, it may be a wrong perception, but it is certainly not
irrational or irrelevant or extraneous.
Comment: The main points of difference which arise in this case when compared to
the Bommai case is that in the present case, the Court explicitly held that the accuracy
and correctness of the material used by the President to reach his satisfaction and even
that used by the Governor to recommend the dissolution of legislature is well within
the scope of judicial review by the court. Sabharwal C.J., in his opinion, has observed
that this flows from the judgement in Bommai itself. However, this does seem to
stretch the ratio of Bommai slightly, as in that case, it was admitted that satisfaction of
the President is subjective and once it is shown that material existed from which such
satisfaction could be reached, it was not for the court to go into the sufficiency or
accuracy of the said material, unless it was highly irrelevant or there were mala fide
intentions behind the proclamation.
Conclusion
Going by the sheer number of times President’s Rule has been imposed on the States so far, it
can be unmistakably asserted that the provision has been frequently used as a tool of political
oppression and domination by the Centre upon States. The Governor, notwithstanding the
impeccable levels of integrity and neutrality that his high office demands, has been often
found to be acting as an agent of the Centre, and his report suggesting the breakdown of the
constitutional machinery in the state, has been found in occasions to be laden with irrelevant
and politically mala fide considerations.
Under these circumstances, the Judiciary had to walk that extra yard to safeguard the
constitution and the federal balance. Therefore, the Supreme Court had to shed off the policy
of ‘judicial hands-off’ and engage with the questions of judicially reviewing mala fide reports
of the Governor. In doing so, significant reliance was placed on the reports of the Committees
and Commissions which dealt with the critical issues involving Centre-State relations,
including Article 356.

Constitutional Law - I

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Constitutional Law - I

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Constitutional Law – I

About the Course

 To acquaint the students with the evolution of constitutional principles

Project Viva: 5 marks

Mid-semester Examination: 20 marks

End-semester Examination: 50 marks

Module One: Introduction to the Constitution

The Idea of Constitutionalism/ Aims and objectives

Features of the Constitution Commented [RE1]: Written Constitution, flexibility,

Cases: Formatted: Justified, Line spacing: 1.5 lines, No bullets or

a. Delhi Laws Act, 1912, Re

e. Excel Wear v. Union of India (On interpretation of the word ‘socialist’)

f. S.R. Bommai v. Union of India (On interpretation of the word ‘secular’)

Module Two: Amending the Constitution

 Parliamentary Power of Amendment vis. a vis. Constituent Power

Cases: Formatted: Normal, Justified, Line spacing: 1.5 lines, No

c. Waman Rao v. Union of India

Module Three: Organs of Governance

Part I: The Judiciary

1.1. Judicial Appointments and transfer

a. In re Presidential Reference (Third Judges’ Case)

b. Supreme Court Advocates on Record Association v. Union of India (NJAC Case)

1.2. Judicial Independence and Review

a. Shanti Bhushan v. Union of India

b. L. Chandrakumar v. Union of India (On Judicial Review as a part of Basic Structure)

1.3. Jurisdiction of the Courts

1.3.1. Original Jurisdiction of the Courts

a. State of Rajasthan v. Union of India

b. State of Karnataka v. Union of India

1.3.2. Nature of Appellate Jurisdiction of the Supreme Court

a. Article 132: T. M. Krishnaswami Pillai v. Governer General in Concil

b. Article 133: Madan Gopal v. State of Orissa

c. Article 134: Tarachand Damu Sutar v. State of Maharashtra

d. Certificate of Appeal: Siddheshwar Ganguly v. State of WB

e. Article 137: Eswara Iyer v. Registrar, Supreme Court of India

f. Curative Petition: Rupa AshokeHurra v. Ashoke Hurrah

1.3.3. Special Leave Petitions

a. Pritam Singh v. State

b. Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.

1.4 Power to do complete justice

a. Supreme Court Bar Association v. Union of India

b. Delhi Judicial Service Association v. State of Gujarat

1.5 Advisory jurisdiction

a. Kerala Education Bill, 1957, Re

b. Special Courts Bill, 1978, Re

a. Nagendra Nath Bora v. Commissioner of Hills Division

b. State of Uttar Pradesh v. Mohd. Nooh

c. A.K. Kraipak v. Union of India

d. Barium Chemicals Ltd. v. Company Law Board

e. Union of India v. Tulsiram Patel

f. Election Commission of India v. Subramanian Swamy

g. Om Kumar v. Union of India

a. L. Chandrakumar v. Union of India (On Tribunals in particular)

b. Union of India v. R. Gandhi

c. Madras Bar Assn. v. Union of India (National Tax Tribunal case)

Part II: The Executive

2.1 Parliamentary form of Governance and the limits of executive discretion

a. Ram Jawaya Kapoor v. State of Punjab

b. UNR Rao v. Indira Gandhi

c. Samsher Singh v. State of Punjab

2.2 Position of the President and Governor

2.3 Power of Pardon

a. Kehar Singh v. State (Delhi Admn)