CONSTITUTIONAL GOVERNANCE CASE NOTES

I. TERRITORIAL NEXUS

A. State of Bihar v. Charusila Dasi

 Widowed woman had constructed religious trusts under four schedules: Schedules A
through D. Schedules A, B, C pertained to properties in Bihar, whereas Schedule D
pertained to properties in Calcutta.
 Act in question was the Bihar Hindu Religious Trusts Act, 1950.
 Under S. 59 and S. 70, Bihar Hindu Religious Trusts asked her to pay returns on the
religious trusts constructed.
 She contended that the religious trusts were not for public use, but that they were private
endowments, and that she does not need to pay returns on these.
 HC agreed with her, passed a writ of certiorari and prohibition allowing no taxation and
under appeal under Article 133, the SC heard this case.
 Questions before the SC were:
1. Whether the trusts in question were public areas or private endowments?
2. If they were public, could Ms. Dasi be taxed on her trusts situated outside the
State of Bihar?
 As regards the first question, the Court found that even though the trusts were managed
by trustees and she was the primary person carrying out worshipping activities there,
public activities and rituals involving a large number of Hindus were performed, and the
public could not be reasonably said to not be part of the functioning of this particular
trust.
 As regards the second question, it was contended by the respondent that the Act in
question would not apply to her trusts in Calcutta as there was no territorial nexus and
because only Parliament was allowed to make laws on charitable institutions which were
situated in two states. (Articles 245, 246 read with Entry 28, List III)
 Court asks the question whether the Act can apply to properties not situated in Bihar, but
which appertain to the trust situated in Bihar.
 Court says yes, because Court applied the R.M.D.C. case and declared that even though
the properties are not situated physically in Bihar, there is a real and pertinent connection
between the properties situated in Bihar and those situated in Calcutta.
 It was held that the act purports to provide for better administration of trusts in Bihar and
that in doing so, it wanted to control the trustees in personam.
 Considering these factors, the legislation was not held to be ultra vires due to extra-
territorial application.
B. State of Bombay v. R.M.D. Chambaugwala

 Respondent was the organizer of a prize competition who resided in Bangalore. However,
he organized prize competitions in the State of Bombay.
 Paper through which prize competition was conducted was printed and published outside
the State of Bombay, however 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 in 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.

C. TISCO v. State of Bihar

 TISCO had major manufacturing plant in Jamshedpur in Bihar. However, the goods so
manufactured were sold, delivered and consumed outside the State of Bihar. It was so
contended that at no point were the goods consumed or final transactions taken place in
Bihar.
 Under the Bihar Sales Tax Act, 1947 however, the Sales Tax Officer in Bihar added all
the income accrued from purchasers even outside the State of Bihar to the taxable income
and disallowed any and all sales tax deductions as requested by TISCO in this particular
case.
 The Bihar Sales Tax Act, 1947 was hence challenged as being ultra vires as the appellant
contended, the sales tax seeking to be imposed under S. 4(1) of the Act read with the
definition of ‘sale’ under S. 2(g) of the same Act, was not in the nature of sales tax under
Entry 48 of List II, but was in the nature of excise duty, a tax which the State of Bihar
was not allowed to impose under the Seventh Schedule of the Government of India Act,
1935.
 The contention was, that sales tax could not be imposed in the present case as the
doctrine of territorial nexus could not apply to sales tax, and also because in the present
case, there was no sufficient territorial nexus to warrant levying of the same.
 Court held that in this case, the definition of ‘sale’ as imposed under Section 4(1) and
defined under Section 2(g) was meant to include the transfer of property. Under its ambit,
it also sought to include situations where the transactions even though were not
completed in Bihar, but were to be deemed to have taken place in Bihar.
 Court further held that the Doctrine of Territorial Nexus does apply to cases of sales tax
as well. Also, they said that it was incorrect to contend that the sales tax imposed
amounted to excise duty because the Act did not seek to impose a tax on the production
or manufacture of goods but on the sale of the goods. Therefore, this contention was also
rejected.
 Court held that the presence of the goods in the State of Bihar at the time of agreement of
sale constituted a sufficient territorial nexus to impose sales tax on the same.
 D. Wallace Bros. v. Income-tax Commissioner

 A company was incorporated in the United Kingdom and had its management and control
exclusively situated there.
 A member of the company carried on business in India. The company made an overall
profit of which a major part was accrued from India.
 It was held that India could levy an income-tax on the entire income of the company, and
not only from the portion accruing from India, for there was a sufficient territorial nexus
between the company and India for this purpose.
II. DOCTRINE OF HARMONIOUS CONSTRUCTION

A. In re, CP and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938

 Section 3(1) of the impugned Act imposed and levied a tax from retail seller on the sale
of motor spirits and lubricants at the rate of five percent on the value of such sales.
 “Retail dealer” as defined under S. 2 of the impugned Act, was any person who, on
commission or otherwise, keeps for sale motor spirits and lubricants by the person by
whom or on whose behalf it is or may be purchased.
 Motor spirit was subject to an excise duty imposed by the Motor Spirit (Duties) Act,
1917, an Act of the Central Legislature; no excise duty had been imposed on lubricants.
 Under the definition provided by S. 2 however, distributors also came under the umbrella
of ‘retail dealers’. This was because consumption here wasn’t mentioned and the tax
meant a tax at every stage of sale.
 However, excise duty under Entry 45, List I was levied at every stage except the last
stage of sale, at which it was sales tax that was to be imposed.
 It was contended that the ambiguity in the definition allowed encroachment into the
Federal Tax, and that sales tax had for all practical purposes, become excise duty.
 Provincial government however, contended that excise duty was only duty on
manufacture or sale, and hence distributors could not be considered to be within the
ambit of the definition of excise duty, as they did not manufacture or produce the goods
so taxed. Hence at that point, it was sale.
 Question to be asked was whether the tax imposed by the provincial government was
indeed a sales tax or disguised excise duty.
 Court looked into the Doctrine of Pith and Substance, and said that it will seek to
ascertain the meaning and intention of Parliament from the language of the statute itself:
but with the motives of Parliament it had no concern.
 Court says that similar processes of interpretation as were followed in Australia, Canada
and the United States were to be taken into consideration, and hence attempted to apply
the Doctrine of Harmonious Construction to the instant case.
 Court said that if both entries were looked at individually and given the widest amplitude,
then both the construing of excise duty as contended by the Federal Government as well
as that of sales duty as contended by the provincial government were correct.
 Court goes into the origins of sales tax, where it was described as a tax on turnover and
hence in the instant case, sales tax is restricted to turnover tax. Similarly, excise duty is
 restricted and said to include only duties levied till the point where any utility was added
to the product.
E. Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh

 By the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971 (which later became an
Act) twelve sugar undertakings stood transferred and vested in a Government.
Undertaking named the U.P. State Sugar Corporation Limited.
 In appeal to this Court it was contended on behalf of the appellants that since sugar is a
declared industry under the Industries (Development and Regulation) Act, 1951 in view
of Entry 52 in Union List read with Entry 24 in State List further read with Article 246
Parliament alone is competent to pass the law on the subject and not the State Legislature
and, therefore, the impugned legislation is void.
 The State of UP contended that Entry 42, List III allowed them to acquire the sugar
industry and that the pith and substance of the legislation was not industry but
acquisition, so even if sugar was a declared industry under Entry 52, List I, the State
Legislature was not beyond its powers in making the impugned Act.
 Court dismissed the writ petition, on the grounds that the Central legislation was about
control and regulation, but it did not speak of absolute control. Furthermore, if the State
was not allowed to make laws on any industry, then Entry 33, List III would become
redundant. In this way, the power of the Centre was restricted.
 Court also limited the acquisition under Entry 42, List III to merely transfer of ownership,
excluding control from the ambit of acquisition, thereby restricting the power of the State
as well.
 Entry 52, List I was therefore, limited to mere control in development and regulation and
all other powers regarding the industry remained with the State under Entry 24, List II. In
this way, Harmonious Construction was applied.

 State of Bombay v FN Balsara AIR 1951 SC 318

 The Bombay Prohibition Act was challenged on the ground that it encroached upon the
import and export of liquors across custom frontiers which is a central subject.
 The court held that the Act was valid because the pith and substance of the Act fell under
the State List and not under the union even the Act incidentally encroaches upon Union
powers of legislation.
o Ishwari Khetal Sugar Mills v State of UP AIR 1980 SC 1955
o U.P Sugar Undertaking (Acquisition) Act 1971 was challenged on the ground that the
state did not have competence to enact the law as it fell under the union legislative
power under Entry 52 of List I.
o Although it was contended the State legislature was divested of power to legislate in
respect of Sugar Industry it being a central subject.
o The court held that there was no conflict between the state Act and central Act and
the power of acquisition under Entry 42 List III is an independent power and the
disputed Act being pith and substance an Act to acquire scheduled undertakings the
power of the State legislature is referable to Entry 42 and its control was taken over
by the central government.
 F. ITC Limited v. Agriculture Produce Market Committee

 ITC manufactures tobacco, which is a controlled industry under Entry 52, List I. The
Tobacco Board Act, 1975 was also enacted by the Centre.
 The Agriculture Produce Market Committee [APMC] was created by the state legislature
and the question in this case pertained to raw tobacco, which was an agricultural produce.
 ITC was asked to pay market fees to APMC. They however, contended that since tobacco
was a controlled industry under Entry 52, List I and the APMC was a state-created body,
the state could not legislate on matters pertaining to tobacco.
 Entry 28, List II and Entry 52, List I were therefore, in conflict.
 Court said that Article 246 provided the power of legislation and that the three lists were
not powers but fields of legislation.
 Invariably, the question that arose before the Court in this case was, what was the ambit
and scope of ‘industry’ under Entry 52, List I?
 Court said that if ‘industry’ under Entry 52, List I was given the widest amplitude
meaning, then Entry 27, List II would in this case, become completely redundant. Entry
27, List II being a specific entry, the ambit of industry had to be restricted in order to
facilitate the State application in making laws under Entry 27.
 But in the present case, ‘industry’ was to be construed in its widest amplitude and
therefore, it said that when Parliament was given the power to control an industry under
Entry 52, it included the produce of such goods as well and therefore, the AMPC was
held to not have the power to levy market fees on raw tobacco and to that extent, the
AMPC was restricted.
III. DOCTRINE OF PITH AND SUBSTANCE

A. Prafulla Kumar v. Bank of Commerce, Khulna

 In this case, the constitutional validity of Section 30 of the Bengal Moneylenders Act,
1940 was challenged.
 This case was under the Government of India Act, 1935; a Privy Council decision.
 The legislation want ed to remedy the evil of moneylending and therefore, under Entry
28 of the Federal Legislative List, they had the power to regulate cheques, bills of
exchange, promissory notes and other like instruments. However, under Entry 27 of the
Provincial List, the provinces had the power to regulate trade and
commerce…..moneylenders and moneylending.
 The question in this case was whether the State was competent to enact the Act under
Entry 27, because there was incidental encroachment into the domain of the Federal
Legislature, wherein the regulation of moneylending involved the regulation of modes of
moneylending, which included not just cash, but promissory notes and bills of exchange
as well.
 The High Court had applied the Doctrine of Repugnancy and declared the federal
government prevalent.
 However, there were four limbs to the State argument:
1. If the provinces had the power to make laws with respect to moneylending, then it
obviously had the right to make laws regarding the contractual rights of borrowers
and moneylenders, whether by promissory notes or bills of exchange is irrelevant.
2. In Pith and Substance, the legislation was about moneylending and, making
references to Canadian and Australian decisions, incidental encroachment wouldn’t
declare the legislation void.
3. There is a difference between negotiable instruments and contractual relations
through negotiable instruments and specific moneylending contracts were within the
ambit of the state. Contract law and general principles therefore, were to apply to all
contracts irrespective of negotiability of the instruments used in said contract.
4. In the impugned legislation, negotiable instruments were not the only instruments
used and the legislation in question impacted those and all other instruments equally.
 What had to be considered in the case was, the scope, object and effect of the
legislation and the Court therefore rejected the contention that the Doctrine of Pith
and Substance did not apply to India because of clear-cut division of powers.
 Broad interpretation given to each of the entries in the three legislative lists would
result in overlaps and even though there is a demarcation, the Doctrine of Pith and
Substance has to be applied in order to resolve conflicts between the lists.
 The Court asked whether the Pith and Substance was moneylending, whether the
incidental encroachment declared the legislation void and lastly, if in P&S the Act
was about moneylending then would the degree of incidental encroachment be a
material fact.
 The Pith and Substance was held to be moneylending, incidental encroachment did
not declare the legislation void and the degree of overlap did not matter in cases
where the P&S of the legislation made the legislation valid.
 Incidental or Ancillary Encroachment

 The case of Prafulla Kumar Mukherjee v. The Bank of
Commercesuccinctly explained the situation in which a State Legislature
dealing with any matter may incidentally affect any Item in the Union List.
The court held that whatever may be the ancillary or incidental effects of a
Statute enacted by a State Legislature, such a matter must be attributed to the
Appropriate List according to its true nature and character.

 Thus, we see that if the encroachment by the State Legislature is only
incidental in nature, it will not affect the Competence of the State Legislature
to enact the law in question. Also, if the substance of the enactment falls
within the Union List then the incidental encroachment by the enactment on
the State List would not make it invalid.

 However, the situation relating to Pith and Substance is a bit different with
respect to the Concurrent List. If a Law covered by an entry in the State
 List made by the State Legislature contains a provision which directly
and substantially relates to a matter enumerated in the Concurrent
List and is repugnant to the provisions of any existing law with respect to
that matter in the Concurrent List, then the repugnant provision in
the State List may be void unless it can coexist and operate without
repugnancy to the provisions of the existing law.

B. State of Karnataka v. Drive-In Enterprises (BOOK PG 600)

 In this case, the legislation challenged is the Karnataka Entertainment Tax Act, 1998.
 Respondent herein, is the proprietor and owner of a drive-in theatre on the outskirts of
Bangalore, which exhibits cinema films.
 Under Entertainment Tax, fees of Rs. 3 was charged. However, if one wanted to admit
their car in to watch the film inside their car, they had to further pay Rs. 2.
 After Karnataka HC struck down S.2 of the Act, amendments were made to S. 4A and S.
6 and again entertainment tax was levied on cars entering the drive-in theatres.
 Appellant contended that based on the amendments, the Act was about levying tax on
entertainment and not, in P&S, about the admission of cars and motor vehicles.
 However, the respondent contended that the special and distinguishing feature of drive-in
theatres pertained to how a person could watch movies within the confines of his car. In a
nutshell, what their argument said was that the tax had to be imposed on the person being
entertained, and not on inanimate objects.
 Reference to Goodyear India Ltd. V. State of Haryana, where it was held that the
nomenclature of an act cannot be used to determine its constitutional validity. The P&S
i.e. the object, scope and effect of the impugned Act had to be taken into consideration
 The Court observed that the car formed an essential part of the process of entertainment
in drive-in theatres, because the admission of the car added to the entertainment value.
Thus, it said that the quality of entertainment would differ between a mere spectator
watching the show as compared to a person sitting in the comfort of his car.
 So the Court held that, in spite of the form and name of the legislation, the P&S of the
legislation and the tax was entertainment, and therefore the order of the HC was struck
down and the Act was held to be constitutionally valid.
G. State of Rajasthan v. G. Chawla ( pg 497

 The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplification Control) Act,
1952.
 The respondents in this particular case contended that under Section 432 of the Code of
Criminal Procedure, the Pith and Substance of the Entry 31, List I and not within Entry 6
of List II.
 G. Chawla was prosecuted because he had taken a permit but failed to adhere to two
conditions
o No audibility beyond 30 yards.
o No sound amplifiers over six feet from the ground.
 o No amplifiers near schools and hospitals.
o No amplifiers in public places without a permit.
 State justified the Act as coming under Public Healthcare because it covered the noise
pollution caused as a result of sound amplifiers. It contended that in object, scope and
effect, the legislation covered public healthcare and not communication, as contended
under the Entry 31, List I argument.
 Applying Prafulla Kumar and other similar case laws, the Ajmer legislation was said to
be valid.
IV. DOCTRINE OF COLOURABLE LEGISLATION

A. K.C. Gajapati Narayan Deo v. State of Orissa

 The impugned Act in this case was the Orissa Estates Abolition Act, 1952.
 The Act, insofar as its main features were concerned, followed similar Acts enacted by
the Bihar, Uttar Pradesh and Madhya Pradesh Legislative Assemblies. The primary
purpose of the Act was to abolish all zamindary and other proprietary estates and interests
in the State of Orissa and after eliminating all the intermediaries, to bring the ryots or the
actual occupants of the lands in direct contact with the State Government.
 Under the first head, the appellants’ main contention was regarding the validity of the
Orissa Agricultural Income Tax (Amendment) Act, 1950. It was contended that this
legislation was a colourable legislation as the true purpose of the legislation was to
actually reduce by artificial means, the net income of the intermediaries, so that the
compensation payable to them would be reduced. The rate of taxation had been increased
almost three times by the time of the second amendment to the Act, so the compensation
reduction argument had some factual basis.
 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
compelled it to act are really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. Whether a statute is
constitutional or not is thus always a question of power.
 Court refers to State of Bihar v. Maharaja Kameshwar Singh, where two clauses of a
similar Bihar Act were held to be unconstitutional on the grounds of it being colourable
exercise of power.
 The Court said that Canada, the US and India provide express liitations for legislative
power in the form of Fundamental Rights and competency under Article 246.
 The idea of the Colourable Legislation Doctrine is that even though the enacting
legislature appears to be competent to make the legislation, but in Pith and Substance it
has been coloured as a competent legislation.
 The State was held to have the competency to levy taxes, increase rate of taxes and even
though there existed possible mala fide intention and the intermediaries were affected
indirectly, the substance of the impugned Act was to increase the agriculture tax rate and
to that effect, the Orissa Legislature was held to be competent to enact the legislation.
 REPUGNANY
HOESCHT PHARM LTD V BIHAR

 Whether there is direct conflict between the two provisions.

 Whether Parliament entered to lay down an exhaustive Code in respect of the
subject matter replacing the Act of the State Legislature; and
 Whether the law made by Parliament and the law made by the State Legislature
occupy the same field.

THE EXECUTIVE

I. PARDONING POWERS (ARTICLES 72 AND 161)

A. N.B. Khare v. Election Commissioner of India (Article 62)(Article 54)(1957-1958)

 10% members who were voting or candidates to the Presidential election can challenge
the Presidential or Vice-Presidential election.
 Matter pertained to the election of Sir Rajendra Prasad as President in 1957, which was
challenged by the petitioner.
 The Supreme Court further held that it would not entertain any petition challenging the
Presidential election before the completion of the election process and declaration of
results. This was because if it was allowed, then conceivably the mandatory provisions
under Article 62 would be violated.
 Furthermore, under Section 14 of the Presidential and Vice-Presidential Elections Act, an
election could be called into question either by a candidate or by ten or more electors.
H. K.M Nanavati v. State of Bombay (Article 72 vis-à-vis Article 161)(1961)

 K.M, Nanavati was sentenced to death by the Bombay High Court. He was however,
given pardon by the Government of Maharashtra.
 This pardon was given even before the case appeal reached the Supreme Court, and the
Supreme Court held that the pardon went against the rules of the Supreme Court.
 In this case, the Supreme Court held that pardon could not be given before all judicial
proceedings and judicial recourses have been resorted to.
I. Kehar Singh v. Union of India (Indira Gandhi assassination case) (1989)

 The Indira Gandhi assassin was convicted under Section 120B read with S.302 IPC, and
given death sentence by the High Court, and his appeal to the Supreme Court was
dismissed.
 When a mercy petition was filed by his son before the President, the President outright
rejected the petition and Kehar Singh’s request for a personal hearing was rejected as
 well, on the ground of not being in conformity with the “well established practice in
respect of consideration of mercy petitions.”
 President further stated, when the counsel communicated to him, that the President could
not go into the merits of the case finally decided by the Court.
 The question before the Court was, to what extent does the pardoning power of the
President allow him to scrutinize evidence with respect to the case?
 The Court held that in scrutinizing evidence for the exercise of his pardoning power, the
President under Article 72 had the most liberal interpretation.
 In scrutinizing evidence, the Court held that he did not modify the judicial record so set,
as the judicial record remained intact. The President was held to have acted under a
constitutional power, the nature of which was very different from the judicial power of
the Courts.
 The Court further observed that the power under Article 72 was of the widest amplitude.
It was further mentioned that it was required for him to mention the merits and reasons
which led him to making the decision.
 SC further refused to lay down any guidelines.
J. G. Krishna Goud v. State of Andhra Pradesh (1976)

 Two persons were sentenced to death for committing murder in implementing their
ideology of social justice through terrorism.
 The President refused to commute their death sentence. Here, they argued before the SC
that their crimes were of a political nature and therefore, warranted different
consideration.
 Court rejected the petition, and pointed out that Article 72 granted the President the
humane and vast jurisdiction to pardon. Historically, it was a sovereign power but
politically, it is a residuary power.
 Court however, pointed out that all power, however majestic, the dignitary wielding it
had to exercise good faith, with intelligent and informed care and honesty for the public
weal. In the instant case, the Court found no ground to consider the refusal of
commutation.
K. Kuljeet Singh v. Lieutenant Governor of Delhi (1982)

 Kuljeet Singh had kidnapped and brutally killed two children because of a feud with the
children’s family.
 The High Court gave the death sentence, and the Supreme Court upheld it. When a mercy
petition was filed to the President, the President rejected the petition without pointing out
any reasons for his actions.
 The SC, in a writ petition filed, held that the question as to whether the Government had
to form guidelines regarding the exercise of Article 72 rights by the President was an
important one, but in turn did not really address the question and dismissed the petition
anyway on the grounds that the murders committed by him were so grave that the only
justifiable sentence was the death sentence.
L. Maru Ram v. Union of India (1980)

 There was an Amendment to the Cr.P.C. in 1978, which amended Section 433A,
providing that people given life imprisonment had to be given minimum fourteen years’
imprisonment in cases of (i) People who could have been given the death penalty; (ii)
People whose death sentence was commuted.
 In this case, the Court clarified that it is not open to the President to take an independent
decision or to direct or refuse release of anyone on his own choice. They said, “The
President here is an abbreviation for the Central Government.”
 The Court further mentioned Article 14 and the protection against arbitrariness, stating
that the power to pardon, grant remission or commutation, being of the highest pedestal
for the life and liberty of the citien, could not be exercised mala fide and ordinarily,
guidelines for fair and equal execution were necessary in order to eliminate arbitrariness
on part of the Governor and President.
M. Epuru Sudhakar v. Government of Andhra Pradesh (2006)

 In this case, a Congress worker was given the death sentence by the Andhra Pradesh HC
for murdering a member of the TDP and the SC confirmed the death sentence.
 The Governor of Andhra Pradesh granted pardon to this murderer, and the pardon was
challenged before the High Court.
 The argument was that since the ex-party of the Governor was the same as that of the
sentenced murderer, the pardon had been granted mala fide.
 The HC quashed the pardon and on appeal, the SC upheld the HC decision. Pasayat J.
further laid down certain guidelines for the judicial review of Article 72 and 161 pardons.
They were:
o That the order had been passed without application of mind;
o That the order is mala fide;
o That the order has been passed on wholly extraneous or irrelevant considerations;
o That the relevant materials had been kept out of consideration;
o That the order suffers from arbitrariness;
 The Court further held that pardon obtained on the basis of manifest mistake or fraud can
also be rescinded or cancelled. This is the most recent position regarding pardoning
power in India.
N. Devendra Pal Singh Bhullar v. State (NCT of Delhi) (2002)

 1993 bomb blast convict, who had killed 9 and injured 17. The rest of the accused were
acquitted, however the Trial Court awarded him a death sentence.
 Bhullar’s appeal against the conviction was rejected by the Supreme Court in December
2006, and his plea for Executive clemency was also rejected by the President.
 In 2011 however, the Court sought to grant him a second appeal and this time a
Constitutional Bench heard the case rather than a Trial Bench. In April 2013, the Court
upheld the death sentence.
 After several scandals involving a letter sent to the German Chancellor requesting
diplomatic pressure, the Court issued a notice to the Central Government asking for the
 commutation of his death sentence to life imprisonment on the grounds that he had gone
insane inside the prison.
 The President granted the mercy petition, and the Court upheld his commutation on the
ground of inordinate delay in his case and because of his suffering from schizophrenia.
 The Court mentioned that grant of pardon was a constitutional right and had to be
exercised with the aid and advice of the Council of Ministers, in order to prevent
arbitrariness or unreasonablesness regarding the same.
V. ORDINANCE-MAKING POWERS (ARTICLES 123 AND 213)

A. A.K. Roy v. Union of India (1982)

 Power of the President to issue ordinances under Article 123 was questioned with respect
to the National Security Ordinance, 1980.
 The Supreme Court here, held that the power of the President to issue an ordinance is not
totally excluded from judicial review. It further said that the satisfaction of the President
cannot be regarded as a purely political question and kept beyond judicial review.
 However, the Court refused to go further as in the interim, the Ordinance was replaced by
an Act and the material placed before the Court regarding the ordinance was meagre.
O. T. Venkata Reddy v. State of Andhra Pradesh (1985)

 The Andhra Pradesh State Government promulgated an ordinance abolishing posts of

part-time village officers in the State. Ordinance was not succeeded by an Act though it
was succeeded by four ordinances.
 Argued before the SC that the Legislature not having enacted the Ordinance, the posts
had to be revived and successive ordinances did not serve any purpose. The SC rejected
the argument.
 The Court said that if the Ordinance comes to an end for any reason, it does not become
void ab initio. It is valid when enacted and any transactions so completed under the
Ordinance cannot be reopened once the Ordinance has lapsed.
 Articles 123 and 213 make use of the phrase ‘cease to operate’ and it only means that no
future transactions could be carried out on the basis of the Ordinance, not that past
actions had to be declared invalid.
P. K. Nagaraj v. State of Andhra Pradesh (1985)

 The age of superannuation was reduced from 58 to 55 years by virtue of an ordinance

amending the service rules.
 Here, the Court rejected the contention that the Ordinance could be invalidated on the
ground of non-application of mind. The power of Ordinance was held to be executive
legislative power and thus, the limitations to which this power was subject were the same
limitations to which the State Government was subject to.
 It was held that even though an Ordinance could be invalidated for contravention of
constitutional limitations, it cannot be declared invalid due to non-application of mind.
 Q. D.C. Wadhwa v. State of Bihar (1987)

 256 Ordinances were continually re-promulgated in the State of Bihar.

 The Court in this case, held that the executive power of Ordinance-making cannot be
used as a substitute for legislative power of Parliament and therefore, the courts will
invalidate the ordinances which are re-promulgated time and again without being brought
before the Parliament as required under clause (2) of Article 123.
 The Court called the practice of re-promulgating Ordinances a “reprehensible practice of
the highest constitutional importance.” One of the Ordinances so declared
unconstitutional was the Bihar Intermediate Education Council Ordinance, 1985.
R. Krishna Kumar Singh v. State of Bihar (1998)

 The Bihar Sanskrit School Ordinance was re-promulgated till 1994.

 The Ordinance made these Sanskrit school teachers government servants, and the Court
said that Ordinances beyond the first do not create any new rights.
 Rights under an Ordinance were said to persist only if: (i) Right continuation necessary in
public interest; (ii) If there is a constitutional necessity in order to ensure that
Fundamental Rights violations are not continued. This was the Theory of Enduring
Rights.
 First Ordinance itself was held to be invalid as it was not placed before the House, and it
will cease to operate if not done so. Furthermore, the Court held that there were certain
pre-requisites under Article 213(1) that had to be necessarily followed. The pre-requisites
were: (i) Necessary conditions; (ii) Ordinance promulgated to deal with the necessary
conditions; (iii) The Ordinance is to be placed before the Legislature.
 Furthermore, Rule 140 of the Rules of Procedure of the Bihar Vidhan Sabha was referred
to, and it was held that the copy of the Ordinance which was to be sent to the Bihar
MLAs was not done.
 Re-promulgation of Ordinances was held to be a fraud of the Constitution, and was
further declared to be a mechanism for executive overreach into legislative domain. Open
discussion of laws in the Legislature allows for excessive scrutiny, while Ordinances
attempt to avoid this process.
 Thus, the Governor was criticized for colorable exercise of power.
VI. GOVERNOR

A. B.P. Singhal v. Union of India (2010)

 In this case, the newly elected Central Government had removed the Governors of Uttar
Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14th Lok Sabha election.
When these removals were challenged, the Supreme Court held:
 The President, in effect the central government, has the power to remove a Governor
at any time without giving him or her any reason, and without granting an opportunity
to be heard.
  However, this power cannot be exercised in an arbitrary, capricious or unreasonable
manner. The power of removing Governors should only be exercised in rare and
exceptional circumstances for valid and compelling reasons.
 The mere reason that a Governor is at variance with the policies and ideologies of the
central government, or that the central government has lost confidence in him or her,
is insufficient to remove a Governor. Thus, a change in central government cannot be
a ground for removal of Governors, or to appoint more favorable persons to this post.
 A decision to remove a Governor can be challenged in a court of law. In such cases,
first the petitioner will have to make a prima facie case of arbitrariness or bad faith on
part of the central government. If a prima facie case is established, the court can
require the central government to produce the materials on the basis of which the
decision was made in order to verify the presence of compelling reasons.
In summary, this means that the central government enjoys the power to remove Governors of
the different states, as long as it does not act arbitrarily, without reason, or in bad faith.
S. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016)

(Article 356)

 The Governor postponed the Assembly session in Arunachal Pradesh, contrary to the aid
and advice of his Council. He further authorized the Deputy Speaker to preide when
considering the removal of the Speaker.
 Here, the Governor, without giving the Chief Minister the opportunity to conduct a floor
test, recommended action under Article 356.
 A Constitution Bench of the Supreme Court invalidated this action of the Governor
compelling the President to withdraw the action under Article 356 after over six months.
 Furthermore, it was held that summoning of any House without the aid and advice of the
Council of Ministers was unconstitutional.