Consti cases

Powers and Privileges cases

In re Keshav Singh
Keshav Singh was committed to prison for contempt of UP Legislative Assembly. His
advocate Solomon challenged it in Lucknow HC-Div bench of HC gave order for release.
House passed resolution for contempt of court against all four. Petitions filed under Art.
226 in Allahabad HC. The impugned Resolution passed by the House was wholly
unconstitutional and violated the provisions of Art. 211 of the Constitution. The made by
Keshav Singh under Art. 226 was competent and 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.
On the same day, the House passed a clarificatory resolution stating that the question of
contempt may be decided after giving an opportunity of explanation to the persons named
in the original resolution according to rules. Therefore the warrants issued for the arrest
of the two Judges and Mr. Solomon were withdrawn, and the two Judges and Mr.
Solomon were placed under an obligation 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.
Issue: 1) Whether a Judge of a High Court who entertains or deals with a petition
challenging any order or decision of a Legislature imposing any penalty on the petitioner
or issuing any process against the petitioner for its contempt or for infringement of its
privileges and immunities or who passes any order on such petition commits contempt of
the said Legislature and
2) Whether the said Legislature is competent to take proceedings against such a Judge in
the exercise and enforcement of its powers, privileges and immunities.
Court held i) Under Art. 143, the matter referred to for advisory opinion need not be
limited to a subject in List I and III-therefore it need not be only a subject to which the
exercise of the Presidents executive power extends
 Two part to Art. 194(3)-The first part empowered the Legislature to define by law from
time to time its powers, privileges and immunities, whereas the Second part provided that
until the legislature chooses so to define its powers, privileges and immunities, its
powers, privileges and immunities would be those of the House of Commons of the
Parliament of the United Kingdom and of its members and committees.
If in pursuance of the power conferred by the first part of Art. 194 (3) a law is made by
the legislature, it is a law within the meaning of Art. 13, as it does not purport to amend
the Constitution and would not, therefore, form part of the Constitution when it is passed;
therefore it would be subject to FRs. Similarly, where the House makes rules for
exercising its powers under the latter part of Art. 194(3), those rules must be subject to
the fundamental rights of the citizens. (MSM Sharma case)
Reading Arts. 121 and 211 together, two points emerge. The judicial conduct of the Judge
cannot be discussed in the State Legislature. It can be discussed in the Parliament only
upon a motion for presenting an address to the President praying for the removal of the
Judge. Therefore the conduct of a Judge in the discharge of his duties can never
become the subject matter of any action taken by the House in exercise of its powers
or privileges conferred by the latter part of Art. 194 (3). If a Judge in the discharge of
his duties commits contempt of the House, the only step that can be taken against him is
under Art. 121.
Contended for State- Art. 211 appears in the Chapter which deals with the State
Legislature and occurs under the topic "General Procedure", and so, the only object
which it is intended to serve is the regulation of the procedure inside the chamber of the
Legislature. The provisions of Art. 194 (2) expressly prohibit any action against a
member of the Legislature for anything said or any vote given by him in the Legislature.
Therefore if a member of the Legislature contravenes Art. 211, no action can be taken
against him in a court of law.
Court held: Whereas a speech made in contravention of Art. 211 is protected from action
in a court by Art. 194 (2), no such exception or protection is provided under the latter part
of Art. 194 (3). If a Judge in the discharge of his duties passes an order or makes
observations which in the opinion of the House amount to contempt, and the House
proceeds to take action against the Judge in that behalf, such action on the part of the
 House cannot be protected or justified by any specific provision made by the latter part of
Art. 194 (3).
Whatever may be the extent of the powers and privileges conferred on the House by the
latter part of Art. 194 (3), the power to take action against a Judge for contempt alleged to
have been committed by him, by his act in the discharge of his duties cannot be included
in them.
It was contended that no court can go behind a general or unspeaking warrant. The
House, and indeed all the Legislative Assemblies in India never discharged any judicial
functions and their historical and constitutional background does not support the claim
that they can be regarded as Courts of Record in any sense. If that be so, the very basis on
which the English Courts agreed to treat a general warrant issued by the House of
Commons on the footing that it was a warrant issued by a superior Court of Record, is
absent in the present case, and so, it would be unreasonable to contend that the relevant
power to claim a conclusive character for the general warrant which the House of
Commons, by agreement, is deemed to possess, is vested in the House.
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. The rules which the House has to make for regulating its procedure and the
conduct of its business have to be subject to the provisions of the Constitution under
Art. 208 (1).
If the claim of the House is upheld, it means that the House can issue a general warrant
against a Judge and no judicial scrutiny can be held in respect of the validity of such a
warrant. It cannot be that the Judicature should be authorised to consider the validity of
the legislative acts of our Legislatures, but should be prevented from scrutinising the
validity of the action of the legislatures trespassing on the fundamental rights conferred
on the citizens. If the theory that the general warrant should be treated as conclusive is
accepted, then, as we have already indicated, the basic concept of judicial independence
would be exposed to very grave jeopardy; and so the impact of Art. 211 on the
interpretation of Art. 194 (3) in respect of this particular power is again decisively against
the contention raised by the House.
 If the power of the High Courts under Art. 226 and the authority of SC 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 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 SC would be meaningless.
The House did not conform to the uniform practice which the House of Commons has
followed for more than a century past and did not instruct its lawyer either to file a return
or to ask for time to do so, and to request that the Court should stay its hands until the
return was filed. It is not disputed that whenever commitment orders passed by the House
of Commons are challenged in England before the Courts at Westminster, the House
invariably makes a return and if the warrant issued by it is general and unspeaking, it is
so stated in the return and the warrant is produced.
Art. 212 makes it possible for a citizen to call in question in the appropriate court of law
the validity of any proceedings inside the House if his case is that the said proceedings
suffer not from mere irregularity of procedure but is illegal and unconstitutional and
it would be open to be scrutinised in a Court of Law.
Minority judgement-Art. 194(1) was expressly made subject to the provisions of the
Constitution-while 194(3) was not made so subject. Clause (3) of Art. 194 thus not
having been expressly made subject to the other provisions 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 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.

SP Balasubramanium v State of tamil Nadu-Mad HC, 1995

Powers under Art. 194(3) are not independent. They are powers which depend upon and
are necessary for the conduct of the business of each House. They cannot also be
expanded into those of the House of Commons in England for all purposes.
Under Art. 194(3), the privileges, powers and immunities claimed or action taken in
vindication thereof cannot be said to be in the exclusive domain or of the sole arbitral or
 absolute discretion of the House of Legislature-they will be subject to Constitution of
India.
Every power of the House of Parliament in England is subject to an act of Parliament.
Nobody could, in England, question the validity of an Act of Parliament on the ground
that it is in excess of the power vested in a sovereign Parliament to legislate. However we
have to test the provisions of the (44th Amendment) Act on the express provisions of our
own Constitution and not on the erroneously supposed powers of a House of Commons in
England.
A House of Parliament or State legislature cannot try any one or any case directly, as a
court of justice can, but it can proceed quasi judicially in cases of contempt of its
authority and take up motions concerning its "privileges" and "immunities" because, in
doing so, it only seeks removal of obstructions to the due performance of its legislative
functions. But if any question of jurisdiction arises as to whether a matter falls here
or not, it has to be decided by the ordinary courts in appropriate proceedings.
The alleged guilt of the petitioner was decided and pronounced upon by the then Speaker
himself and declaration to that effect was made by him even before any opportunity to
show cause or a hearing was given to the petitioner. The Speaker also demanded for an
apology to be expressed by another publication on threat of imposition of a summary
sentence by the House if the petitioner failed to do so.
Suo motu the Speaker of the House has power only to refer the question to the privileges
committee and not to record a verdict on the very question. The Residuary Powers of the
Speaker also will not come to his rescue as there is no provision in the Constitution or the
Rules themselves. There had been, gross violation of law as also the principles of natural
justice in dealing with the case of the petitioner and punishing him with imprisonment
and the entire procedure adopted in his case smacks of arbitrariness and oppressiveness
besides the same being most unreasonable. While denying the personal liberty of the
petitioner, a citizen of this country, even the elementary procedure established by law
does not appear to have been adhered to.
Held there was gross violation of the fundamental rights of the petitioner secured under
Articles 14 and 21 of the Constitution in imposing the sentence of rigorous imprisonment
for three months.
Paul Raj v Speaker of Tamil Nadu Mad HC 1986
Erskine May- Effect of prorogation and adjournment
The effect of a prorogation is at once to suspend all business until Parliament shall
be summoned again. Not only are the sittings of Parliament at an end, but all
proceedings pending at the time are quashed, except impeachment by the Commons
and appeals before the House of Lords. Every bill must therefore be renewed after a
prorogation, as if it were introduced for the first time."
Cited Kaul and Shakdher as follows -
"Dissolution, as already stated, marks the end of the life of a House and is followed by
the constitution of a new House. Once the House has been dissolved, the dissolution is
irrevocable. There is no power vested in the President to cancel his order of dissolution
and revive the previous House. The consequences of a dissolution are absolute and
irrevocable. In Lok Sabha, which alone is subject to dissolution under the
Constitution, dissolution 'passes a sponge over the Parliamentary slate'. All business
pending before it or any of its committees lapses on dissolution. No part of the records
of the dissolved House can be carried over and transcribed into the records or registers of
-a new House. In short, the dissolution draws the final curtain upon the existing House."
Purshotamman v State of Kerala- The issue was whether the convention that the
legislative business lapses on the dissolution of the House of Commons, could also be
given effect to in India. It was pointed out that there was no doubt that dissolution of the
House of Parliament in England brings to a close and in that sense kills all business
pending before either House at the time of dissolution. However the Supreme Court
found that there was express provision in Art. 196(3) of the Constitution that a Bill
pending in the Legislature of a State shall not lapse by reason of the prorogation of
the House or Houses thereof. This makes a complete departure from English
convention. Under this clause the pending business may be pending either in the
Legislative Assembly or in the Legislative Council or may be pending the assent of the
Governor and at whichever stage the pending business may stand, so long as it is
pending before the Legislature of a State it shall not lapse by the prorogation of the
Assembly. The Supreme Court observed that the effect of Art. 196(5) was that all cases
 not falling within its scope are not subject to the doctrine of lapse of pending business on
the dissolution of the Legislative Assembly
However position that a breach of privilege in one Parliament can be punished in
another succeeding Parliament seems to be beyond doubt in England. Consequently,
this has to be considered as privilege of the House of a Legislature to punish for
contempt or breach of privilege of a Legislature which has been dissolved.
Where a person is deprived of his personal liberty as a result of proceedings before the
Committee of Privileges, such deprivation will be in accordance with the procedure
prescribed by law under Article 21.

PV Narsimha Rao v State (CBI)

Allegation that MPs of Narsimha Rao government had bribed MPs of other parties to
vote against No Confidence motion
Held: Majority-JS Bharucha
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 a member is not "liable to any proceedings in any court in respect
of anything said or any vote given by him". Art. 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.
 However it was held that this protection was not available to the bribe giver MPs: If a
member of Parliament has, by his speech or vote in Parliament, committed an offence, he
enjoys, by reason of Art. 105(2), immunity from prosecution therefore. Those who have
conspired with the member of Parliament in the commission of that offence have no
such immunity. They can, therefore, be prosecuted for it.

Minority judgment
If the express in respect of' is thus construed, the immunity conferred under Article
105(2) would be confined to liability that 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.
Is the liability to be prosecuted arising from acceptance of bribe by a Member of
Parliament for the purpose of speaking or giving his vote in Parliament in a particular
manner on a matter pending considerations before the House an independent liability
which cannot be said to arise out of anything said or any vote given by the Member in
Parliament?-Yes it is.
The offence of bribery is made out against the receiver if he takes or agrees to take
money for promise to act in a certain way. The offence is complete with the acceptance of
the money or on the agreement to accept the money being concluded and is not
dependent on the performance of the illegal promise by the receiver. The receiver of the
money will be treated to have committed the offence even when he defaults in the illegal
bargain.
 Since offering of bribe to a Member of Parliament and acceptance of bribe by him had
not been treated as an offence at common law by the courts in England, when the
Constitution was adopted in 1950, the fact that such conduct was being treated as a
breach of privilege by the House of Commons in England at that time would not
necessarily mean that the courts would have been precluded from trying the offence of
bribery committed by a Member of Parliament if it were to be treated as an offence.
Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the
appellants to claim immunity from prosecution in respect of the charge levelled against
them.
A Member of Parliament does not enjoy immunity under Article 105(1) or under Article
105(3) of the Constitution from being prosecuted before a criminal court for an offence
involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in
Parliament or in any committees thereof.

D Murugesan v Speaker Mad HC 1995

Whether the Legislature has the power and privilege of punishing the petitioner for
having published the expunged portions of the proceedings of the House? Yes, it
does. That the Houses of Legislature in India have the privilege to prohibit publication of
even the true and correct report of the debate of the House is well established.
Whether the Assembly could re-impose the sentence on a person held guilty of
breach of privilege only because he has moved the High Court under Art. 226 of
the Constitution of India challenging the validity of sentence impose upon him?
Right to move the High Court under Art. 226 is a constitutional right of a person which
cannot be taken away by any one. Punishing a person for invoking jurisdiction of the
High Court may, therefore, amount to obstructing his right to approach the court and will
be violation of Articles 14 and 21.

Presidential Elections cases

NB Khare v Election Commission of India 1 (1957 SC)

 Petitioners asked for Election Commission to not proceed with polling for Presidential
elections but to hold the same after duly completing all the elections to the Lok Sabha
and the Legislatures in all the States of the Indian Union including the Union territory.
It was contended that the Electoral College must be constituted after the elections in all
States and Union territories are completed and should consist of all the elected members
falling within both the categories. Since elections had not taken place at all in Himachal
Pradesh and in two constituencies of the State of Punjab, the Electoral College cannot be
constituted until after those members are also elected.
Issue: Is there in this Article or in any other part of the Constitution or anywhere else any
indication as to the time when such inquiry is to be held? What is the meaning to be given
to the word "election" as used in this Article?
Court relied on N. P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952
SC)-The word election has acquired two meanings. In the narrow sense, it is used to
mean the final selection of a candidate which may embrace the result of the poll when
there is polling or a particular candidate being returned unopposed when there is no poll.
In the wide sense, the word is used to connote the entire process culminating in a
candidate being declared elected. Court held election as used in Art. 329 related to the
entire process which consisted of several stages and embraced many steps some of which
might have an important bearing on the result of the process-therefore it applied the wide
sense of the word.
Similarly SC in this case held that the word election as used in Art. 71(1) has the same
wide meaning as comprising the entire election process culminating in a candidate
being declared elected. Under Art. 71(3), the Parliament has enacted the Presidential
and Vice-Presidential Election Act, 1952 to regulate certain matters relating to or
connected with elections to the office of President and Vice-President of India. The Act
indicates that in the view of Parliament the time for the exercise of jurisdiction by this
Court to inquire into and decide doubts and disputes arising out of or in connection
with the Presidential election is after the entire election process is completed.
Under s. 14 of this Act, which corresponds to s. 80 of the Representation of the People
Act, 1951, the election of the President or Vice-President, shall not be called in
 question except by an election petition presented to this Court in accordance with the
provisions of Part III of that Act and of the rules made by this Court under Art. 145.
If doubt or dispute arising out of or in connection with the election of President or Vice-
President can be brought before the Court before the whole election process is concluded
then conceivably the entire election may be held up till after the expiry of the five years'
term which will involve a non-compliance with the mandatory provisions of Art. 62.
The well recognised principle of election law, Indian and English, is that elections should
not be held up and that the person aggrieved should not be permitted to ventilate his
individual interest in derogation of the general interest of the people, which requires that
elections should be gone through according to the time schedule. It is, therefore, in
consonance both with the provisions of Art. 62 and with good sense to hold that the
word "election" used in Art. 71 means the entire process of election.
Petitioners contended this violated Article 14 as it prevented those in constituencies
where elections had not been held from participating in the election. Court held that this
will at best, be a non-compliance with the provisions of the Constitution which may or
may not, after the conclusion of the entire election, be made a ground, under s. 18 of the
Presidential and Vice-Presidential Election Act, 1952, for calling the election in question
and did not give any final opinion on the matter.

NB Khare 2 (1958 SC)

It was contended that the Act and the Rules in question are void on the ground that
they derogate from the jurisdiction of the Supreme Court to enquire into and decide
all disputes and doubts arising out of or in connection with the election of the
President or the Vice-President. It was argued that under s. 18, the election could be
set aside only on certain grounds and that further under clause (b) it could be done
only if the result of the election is shown to have been materially affected, and that
these are restrictions on the jurisdiction conferred by Art. 71(1) and are ultra vires.
Article 71(1) merely prescribes the forum in which disputes in connection with the
election of the President and Vice-President would be enquired into. It does not
prescribe the conditions under which the petition for setting aside an election could be
presented.
 Court held: Under Art. 71(3), the Parliament is authorised to make law for regulating
any matter relating to or connected with the election of the President or Vice
President, and the Act was passed by Parliament in accordance with this provision.
The right to stand for election and the right to move for setting aside an election
are not common law rights. They must be conferred by statute and can be
enforced only in accordance with the conditions laid down therein. Therefore the
contention that the Act and the Rules derogate from the jurisdiction of the Supreme
Court under Art. 71(1) must be rejected.
It was also contended the petitioner has a right as a citizen to approach SC under Art.
71(1) whenever an election has been held in breach of the constitutional provisions.
Sc held that the right of a person to file an application for setting aside an election
must be determined by the statute which gives it, and that statute is the 1952 Act
passed under Art. 71(3). Acc to the Act an election petition should be presented by
any candidate at such election or by ten or more electors. Therefore petitioner did
not have a right to approach SC.

Baburao Patel v Zakir Hussain

Petitioners contended that under Art. 58(1) (c) for a person to be eligible for election
as President he must be qualified for election as a member of the House of the People.
Hence no one is qualified, after the amendment of cl. (a) of Art. 84, for election as a
member of the House of the People unless he makes and subscribes an oath in the
form set out for the purpose in the Third Schedule, and therefore this provision
applied to a person standing for election as President, for without such oath he would
not be qualified to stand for election to the House of the People.
Court held-cl. (c) of Art. 58(1) would bring in such qualifications for members of the
House of the People as may be prescribed by law by Parliament, as required by Art.
84(c). It will by its own force bring in Art. 102 of the Constitution, for that Article
lays down certain disqualifications which a presidential candidate must not have for
he has to be eligible for election as a member of the House of the People.
If the intention of Parliament was that an oath similar in form to the oath to be taken
by persons standing for election to Parliament had to be taken by persons standing for
 election to the office of the President there is no reason why a similar amendment
was not made in Art. 58(1)(a). Further the form of oath should also have been
prescribed either in the Third Schedule or by amendment of Art. 60, which
provides for oath by a person elected as President before he takes his office. But we
find that no change was made either in Art. 58(1)(a) or in Art. 60 or in the Third
Schedule prescribing the form of oath to be taken by the presidential candidate before
he could stand for election. Therefore this is the clearest indication that Parliament
did not intend, when making the Amendment Act, that an oath similar to the oath
taken by a candidate standing for election to Parliament had to be taken by a
candidate standing for election to the office of the President.
It was contended that though no form of oath may be prescribed it was open to the
Election Commission under Art. 324 to prescribe an oath by making changes mutatis
mutandis in form III-A of the Third Schedule relating to candidates for election to
Parliament, and that it was the duty of the Election Commission to appoint
somebody to administer the oath in this form.
Court held: Art 324 does not give any power to the Election Commission to
introduce a form of oath to be taken by a candidate for election whether it be for
election as President or as a member of Parliament or of a State legislature. If an
oath has to be taken by any such person it has to be provided by law and the form
thereof has also to be prescribed by law--(and this means "law" in its broadest sense,
including constitutional provisions).
When Art. 58(1)(c) lays down that a person standing for election as President has to
be qualified for election as a member of the House of the People it only brings in
qualifications other than those which are specifically mentioned in Art.58(1) itself.
Now specific qualifications provided in Art. 58(1) are that a candidate for presidential
election has to be a citizen of India and he must have completed the age of 35 years.
So far as these qualifications are concerned, we need not go anywhere else in order to
search for eligibility to contest election as President.
Held no undue influence was committed by Indira Gandhi in asking party members to
vote for Zakir Hussain-As a leader of party she was entitled to ask the electors to vote
for Dr. Zakir Husain and the fact that she is the Prime Minister makes no difference to
 her right to make an appeal of this nature. Same thing applies in case of Chief
Minister. In a democratic system, like ours, persons who stand for election are
candidates sponsored by parties for without such support no one would have a chance
of being elected, for the electors are mostly members of one party or other.
Also held that canvassing for votes doesnt amount to undue influence. If the leader
of the party indicates to the members of his party how to vote in order to ensure that
votes may not become invalid for want of knowledge of the procedure of voting it is
not undue influence. It is also not undue influence if Chief Whip tells party members
that it would be better if they only marked their first preference and no other
preference in a system where voting is by single transferable vote.

In Re Presidential Election 1974 SC

Issue-Whether the election to fill the vacancy caused on the expiry of the term of
office of the President must be completed before the expiry of the term of office
notwithstanding the fact that the Legislative Assembly of the State of Gujarat is
dissolved?
The fixed term, of office mentioned in Article 56(1) as well as the mandate in Article
62(1) that the election to fill a vacancy caused by the expiration of the term of office
shall be completed before the expiration of the term reflects the dominant
Constitutional purpose and intent regarding the time when the election of the
President is to be held. Further, the provision in Article 62(2) that an election to fill
a vacancy in the office of the President by reason of his death, resignation or removal
or otherwise be held as soon as possible after and in no case later than six months
from the date of the occurrence of the vacancy shows that the time to hold an
election to fill a vacancy is also mandatory in character.
The Articles do not contain any provision for extension of time. By way of contrast
reference may be made to Article 83 where it is said that though the expiration of the
period of five years shall operate as a dissolution of the house the period may, while a
Proclamation of Emergency is in operation, be extended by Parliament by law for a
period not exceeding one year at a time and not extending in any case beyond a
period of six months after the Proclamation has ceased to operate.
 It was suggested that the word "otherwise" occurring in Article 62(2) of the
Constitution contemplates a case of filling a vacancy occurring by the expiration of
the term but where such vacancy cannot be filled up by completing the election
before the expiration of the term by reason of dissolution of the Assembly.
Court held: The word "otherwise" does not refer to a vacancy caused by the
expiration of the term of office for the obvious reason that the same is the subject
matter of Article 62(1). The marginal note to Article 62 bears this out. Further, a
President whose term has expired can continue to hold the office only under
Article 56(1)(c) until his successor enters upon his office. Article 56(1)(c) is
complementary to Article 62(1). Here successor means a successor elected before or
even after the expiration of the term stated in Article 62(1).
Article 65(1) provides that where the office of the President by reason of his death,
resignation or removal or otherwise becomes vacant, the Vice-President shall act as
President until the date on which a new President elected to fill vacancy enters upon
his office. Therefore a vacancy under Article 62(2) does not enable the President to
continue in office.
Referred to NB Khare 1 case. The Constitution-makers may well have visualised that
all legislative bodies should be in existence at the time of the Presidential election and
all elected members of such bodies should participate in that election. But that is
only an ideal. The realisation of this ideal is not practicable, because of the likely
vacancies in the legislative bodies due to death, disqualification, resignation and the
like.
It was contended that if States were denied the right to vote at the election they would
be denied representation. It was also said that if States were denied the right to cast
votes at the election, the parity between the States and the Union would be disturbed.
Held: The members of electoral college mentioned in Article 54 are not both Houses
of Parliament and the Legislative Assemblies of the States. The essence as well as
scope of Article 54 is merely to prescribe qualifications required for electors to
elect President. The elected members of both Houses of Parliament and the
Legislative Assemblies of Stated are the only members of the electoral college.
 The essence of Article 55 merely lies in the application of formulae each elector
having the required qualifications under Article 54 shall be entitled to exercise the
number of votes in accordance with Article 55. Neither Article 54 nor Article 55 has
anything to do either with the time of the election to fill the vacancy before the
expiration of the term or to prevent the holding of the election before the
expiration of the term by reason of dissolution of Legislative Assembly of a State.
The electoral college as mentioned in Article 54 is independent of the
Legislatures mentioned in Article 54. The electoral college compendiously
indicates a number of persons, holding the qualifications specified in the Article to
constitute the electorate for the election of the President and to act as independent
electors.
Neither Article 54 nor Article 55 prescribes the circumstances in which or
the time when the election of the President shall take place. Article 55 has no
concern with the competence of the election of the President because of dissolution of
the Legislative Assembly of a State. Article 55(2) deals with the formulae for
securing uniformity among the States inter se and parity between States as a whole
and the Union. The parity in Art. 55 is not between each State separately as a unit
on the one hand and the Union on the other but between the States as a whole
and the Union.
The words as far 'as practicable' in Article 55(1) in relation to uniformity in the
scale of representation of the States are important. It indicates that in practice the
scale of representation may not be uniform because the actual number of electors at
the date of the election of the President may not be equal to the total number of
all the elected members of both Houses of Parliament and all Legislative
Assemblies of all States.
It will not only be undemocratic but also unconstitutional to deny the elected
members of both the Houses of Parliament as well as the elected members of the
Legislative Assemblies of the States the right to elect the President only because the
Assembly of a State is dissolved.
If as a result of dissolution of a Legislative Assembly of a State, there are no
elected members of the Legislative Assembly of a State, a State will not have any
 elected members of a State Legislative Assembly to qualify for the electoral
college. That matter will not be a ground either for preventing the holding of the
election on the expiry of the term of the President or suggesting that the election
to fill the vacancy caused by the expiry of the term of the office of the President
could be held only after the election to the Legislative Assembly of a State where
the Legislative Assembly, is dissolved is held.
Art. 71(4) will take in any case where a person who as an elected member of the
Houses of Parliament or the Legislative Assembly of a State became entitled to be a
member of the electoral college but ceased to be an elected member at the relevant
date of the election and therefore became disentitled to cast vote at the election and
that vacancy among members of the electoral college was not filled up.
Therefore only such persons who are elected members of both Houses of
Parliament and the Legislative Assemblies of the States on the date of the
election to fill the vacancy caused by the expiration of the term of office of the
President will be entitled to cast their votes at the election. The election to the
office of the President must be held, before the expiration of the term of the
President notwithstanding the fact that at the time of such election the
Legislative Assembly of a State is dissolved. The election to fill the vacancy in the
office of the President is to be held and completed having regard to Articles 62(1),
54, 55 and the Presidential and Vice-Presidential Elections Act, 1952. Article
56(1)(c) applies to a case where a successor has not entered upon his office and only
in such circumstances can a President whose term has expired continue.

Charan Lal Sahu v Neelima Sanjiva Reddy

Section 13 (a) of the Act says "Candidate 'means a person who has been or claims to
have been duly nominated as a candidate at an election' ".
The petitioner admitted that he was not nominated as provided by section 5B of the
Act which enacts that each candidate shall "deliver to the Returning Officer at the
place specified in this behalf in the public notice issued under section 5 a nomination
paper completed in the prescribed form and subscribed by the candidate as assenting
to the nomination, and
 In the case of Presidential election, also by at least ten electors as proposers and at
least ten electors as seconders." Again, section 5C provides that "A candidate shall
not be deemed to be duly nominated for election unless he deposits or causes to be
deposited a sum of two thousand five hundred rupees."
Petitioner contended that Art. 58 lays down qualifications for becoming a President
and therefore a law made under Article 71 cannot come into conflict with Art. 58.
Court held: Article 58 only provides the qualifications or conditions for the
eligibility of a candidate. It has nothing to do with the nomination of a candidate
which requires ten proposers and ten seconders. In the case of an election to such a
high office as that of the President of India, it is quite reasonable to lay down the
condition that a person who is allowed to contest the election as a candidate must
have at least ten proposers and ten seconders from amongst hundreds of electors who
are legislators.
Further it is not in violation of Article 14-The conditions laid down in sections 5B
and 5C apply to all persons who want to be candidates at a Presidential election
without any discrimination. They Prima facie impose reasonable conditions to be
observed by any person who wants seriously to contest at a Presidential election.
Art. 71(3)- ( as it was then)The validity of any such law as is referred to in clause
(1) and the decision of any authority or body under such law shall not be called in
question in any Court."
Amendment by way of Art. 71(3) was challenged as ultra vires the basic structure-
Court held that: The impugned amendment of the Constitution only refers to a law by
which Parliament may regulate matters connected with the Presidential election,
including those relating to election disputes arising out of such an election. It cannot
be said to take away the jurisdiction of the SC to decide any matter which may be
pending before the Court. All it does is to provide that the validity of any law falling
under Article 71 (1) will not be called in question in any court.

Kuldip Nayar v UOI

 Whether secret ballot should be used in RS elections-and whether voting against party
directions in RS elections will attract disqualification-
Relied on Kilhoto Hollohan v Zachillu-The direction given by the political party to a
Member belonging to it, the violation of which may entail disqualification under
Paragraph 2(1)(b) of the 10th schedule would have to be limited to a vote on motion of
confidence or no confidence in the government or where the motion under
consideration relates to a matter which was an integral policy and programme of the
political party on the basis of which it approached the electorate. The voting or
abstinence from voting by a Member against the direction by the political party on such a
motion would amount to disapproval of the programme on the basis of which he went
before the electorate and got himself elected and therefore it would amount to a breach of
the trust reposed in him by the electorate-therefore it will not apply to RS directions.
Where the Constitution thought it fit to do so, it has itself provided for elections by secret
ballot. Unlike the silence on the subject in the case of provisions of the Constitution
concerning RS elections, Articles 55(3) and 66(1), that relate to the manner of election
for the offices of the President and the Vice President specifically provide for election 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. 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. Therefore it is not unconstitutional to provide
that RS elections must be held by open ballot.

Office of profit cases

Ramakrishna Hegde v State of Karnataka Kar HC 1992
The petitioner was elected as a Member of the Karnataka Legislative Assembly from
Basavanagudi Constituency, Bangalore City on 27th November, 1989. He was offered the
post of Deputy Chairman of the Planning Commission in the rank of a Cabinet
Minister. Since he was aware that acceptance of an 'office of profit' under the
Government of India would be a disqualification for being a Member of the Legislative
 Assembly, he was not inclined to accept the offer. Accordingly, he conveyed his views to
Government of India. When consulted the Law Ministry advised the Government of India
that in view of the provisions of Karnataka Legislature (Prevention of Disqualification)
Act, 1956 there would be no bar on the petitioner holding the post of the Deputy
Chairman of the Planning Commission and to continue as Member in the Karnataka
Legislative Assembly so long as he does not receive any remuneration other than the
compensatory allowance for holding the post of Deputy Chairman of the Planning
Commission. Thereafter, the petitioner accepted the post of the Deputy Chairman of the
Planning Commission.
In the order of appointment of the petitioner to the said post, it was stated that the
petitioner would not draw any salary; he would be entitled only to the travelling
allowance/daily allowance; conveyance allowance or a chauffer- driven car and house
rent allowance or rent free furnished accommodation including free supply of electricity
and water.
Held: Actual adjudication has always to be made by the Election Commission
although formal order has to be pronounced by the Governor under Article 192(2)
of the Constitution. Since the Governor has no choice or discretion but to pass the order
in accordance with the opinion of the Election Commission under Article 192(2) of the
Constitution, the Writ Petition is maintainable even in the absence of Governor being a
party to the proceedings when the Election Commission is itself before the Court.
Test for office of profit- Supreme Court in Divya Prakash v. Kultar Chand Rana ruled
that "In the absence of any profit accruing to the Chairman as a result of the holding of
the office of Chairman, it cannot be said that he was holding an office of profit".
No material was placed either before the EC or before the Court to show that the
petitioner had a pecuniary gain by receiving allowances which were above the actual
expenditure so as to make profit. In the instant case the petitioner has received
allowances which come within the meaning of 'Compensatory Allowance' as a Deputy
Chairman of the Planning Commission (Committee for the purpose of the Act). Merely
because the petitioner had some privileges as a State Guest or a rank of a Cabinet
Minister, it cannot be said that he had pecuniary gain.
Shibu Soren v Dayanand Sahay SC 2001
 Respondent filed an Election Petition under Section 80 and 81 of the Representation of
Peoples Act, 1951 calling in question election of the appellant on the ground that at the
time of filling his nomination papers, the appellant was holding "an office of profit"
under the State Government as Chairman of the Interim Jharkhand Area Autonomous
Council set up under the Jharkhand Area Autonomous Council Act, 1994 and was thus
disqualified to contest election to Rajya Sabha.
Election petition was resisted by the appellant on the grounds that that the office of
Chairman of the interim JAAC was not an 'office of profit' or even an 'office' under the
State Government and further that the election petitioner was barred from raising the
challenge, for not having raised that objection at the time of scrutiny of nomination
papers before the returning officer.
It was also contended that the returned candidate had not been earning any 'profit' and
was drawing only honorarium and allowances to meet his 'out of pocket expenses' and the
office he was holding could not be treated as an 'office of profit' under the State
Government and, therefore, his election was not liable to be set aside.
His disqualification, if any stood removed by Section 3 of the Parliament (Prevention of
Disqualification) Act, 1959 since he enjoyed the status of a Minister while functioning as
Chairman of the Interim Council.
Court held: The word 'profit' for the purpose of Article 102(1)(a) or Article 191
"connotes an idea of pecuniary gain", though neither the label under which it is paid
nor the quantum of the amount may always be material to determine the issue. In the
instant case, the appellant on his own admission was to receive Rs.150/- per day as
allowance for performing work of the interim Council outside the headquarters and
Rs.120/- per day for the days of sitting of the Council. These amounts were intended to
meet out of pocket expenses of the appellant and were in the nature of compensatory
allowances and were not a source of profit.
Payment of Rs.1,750/- per month as honorarium was in addition to the aforesaid
allowances. Besides the receipt of daily allowances and honorarium, the appellant had
also been provided with rent free accommodation besides a car with a driver at State
expense. Keeping in view these facilities, the payment of an additional amount of
Rs.1,750/- per month as an honorarium was, under the circumstances, clearly in the
 nature of giving some pecuniary gain to the appellant and was not intended to
compensate the appellant for his out of pocket expenses.
The grant of honorarium of Rs.1750/- per month besides other perquisites, granted
by the State Government to its own nominee, in addition to the payment of daily
allowances, to meet out of pocket expenses, does bring in an element of granting
'profits' to the appellant. It is not possible to construe the payment of Rs.1750/- per
month, to be payment in the nature of "compensatory allowance". While construing the
true nature of "honorarium", the grant of other perquisites cannot be overlooked or
ignored. The honorarium' receivable by the appellant at the rate of Rs.1,750/- per month,
besides other 'allowances' and 'perquisites' was surely not in the nature of gratuitous
payment, voluntary donation or compensation to meet any out of pocket expenses. It was
in the nature of 'remuneration' and was a source of 'pecuniary gain'. The receipt of
honorarium at the rate of Rs.1,750/- per month, besides daily allowances, rent free
accommodation and a chauffeur driven car at the State expense, to the appellant was a
benefit capable of bringing about a conflict between the duty and interest of the
appellant as a member of Parliament.
The appellant was nominated (appointed) as Chairman of the Interim Council by the
State Government by virtue of powers vested in it under Section 23 of the JAAC Act. He
was to hold the office of the Chairman of Interim Council "at the pleasure of the State
Government" vide Section 23(7) of the Act. Thus, not only was the appellant appointed
(nominated) by the State Government, it was the State Government which had the right to
remove or dismiss the holder of that office besides controlling the manner of functioning
of the Interim Council and providing funds for the interim JAA Council out of which
honorarium of Rs.1,750/- per month was paid to the appellant. Thus appellant is holding
the office under State Government. The decisive test of the power of Government to
appoint the person in office as well as revoke his appointment at its discretion and
be responsible for the expenses, are fully satisfied in the case of the appellant.
An office of profit under the Government of India or under the Government of any State
would be a disqualification only if that office is not declared by the Parliament by law not
to disqualify its holder. No such disqualification was removed by the Parliament as the
JAAC Act has not been included in the Schedule to the Parliament (Prevention of
 Disqualification) Act, 1959. The State Legislature is not competent to remove any
disqualification in respect of a member of Parliament. Even if it be assumed that the
State Legislature or Government had, by implication removed the disqualification by
granting "deemed" status of a Minister to the appellant, it had no jurisdiction to remove
the disqualification from which the appellant was suffering, because it is Membership of
the Rajya Sabha and not of State Legislature which was in issue.

Gajanan Samadhan Lamde v Sanjay Shyamrao Dhotre 2011 SC

The appellant averred in the election petition that the respondent was disqualified to
contest the election as he was holding the 'office of profit' under the Government
company being a Director of the Maharashtra Seeds Corporation (for short
"Corporation")
Held: The respondent was holding an elected office and not an office by
appointment. The test of appointment is decisive. The Government had nothing to do
in the election of Director from the Growers constituency. Moreover, being an elected
office, the Government has no power to remove the returned candidate from that
office. On this ground alone, it must be held that the returned candidate does not hold an
office and therefore does not an 'office of profit' under the Government.
 Secondly, one of the essential necessities in determining the question whether the office
is an 'office of profit' or not is whether such office carries remuneration in the form of
pay or commission. As an elected Director, the amount paid to the returned candidate
by way of allowances cannot be said to be 'renumeration' in the form of pay or
commission. It is only a sort of reimbursement of the expenses incurred by the
returned candidate. Therefore the essential condition that office carries remuneration in
the form of pay or commission is also not satisfied.
Lastly, the peculiar features of an elected office of Director in the Corporation do not
bring such office within the meaning of 'office of profit'.

PA Sangma v Pranab Mukherjee 2013 SC

According to the Petitioner, at the time of filing the nomination papers as a candidate
for the Presidential elections, the Respondent held the Office of Chairman of the
Council of Indian Statistical Institute, Calcutta, which was an office of profit.
Aggrieved by the decision of the Returning Officer in accepting the nomination papers
of the Respondent as being valid, the Petitioner questioned the election of the
Respondent as the President of India under Article 71 of the Constitution read with
Rule 13, Order XXXIX of the Supreme Court Rules, 1966. Under Rule 13, upon
presentation of a petition the same shall be posted before a 5 judge bench of the
Court for preliminary hearing. If the Court thinks that the petition does not deserve
regular hearing as contemplated in Rule 20 of the Order may dismiss the petition or
pass any appropriate order as the Court may deem fit.
Rule 20 provides that an election petition will be disposed of by a bench of at least 5
judges
It was held that it was not an office of profit since it did not provide any profit and was
purely honorary in nature. There was neither any salary nor honorarium or any
other benefit attached to the holder of the said post.
Jaya Bacchan case- what was relevant was whether the office was capable of yielding a
profit or pecuniary gain, other than reimbursement of out-of-pocket/ actual expenses
and not whether the person actually received any monetary gain or did not withdraw the
emoluments to which he was entitled.
 In order to be an office of profit, the office must carry various pecuniary benefits or
must be capable of yielding pecuniary benefits such as providing for official
accommodation or even a chauffeur driven car, which is not so in respect of the post
of Chairman of the Indian Statistical Institute, Calcutta. (Therefore Shibu Soren case
would not apply as there were no such amenities)
Jaya Bacchan v UOI
The petitioner became disqualified under Article 102(1)(a) of the Constitution for being a
Member of the Rajya Sabha on and from 14th July, 2004 on her appointment by the
Government of Uttar Pradesh as Chairperson of the U.P. Film Development Council.
The petitioner contended that in the absence of any finding by the Election Commission
that she had received any payment or monetary consideration from the State Government,
she could not be said to hold any office of profit under the State Government.
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'.
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, is 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 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). 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.
 The fact that the petitioner is affluent or was not interested in the benefits/facilities given
by the State Government or did not receive such benefits till date, is not relevant to the
issue.

Consumer Education and Research Society v Union of India, 2009 SC

Amendment of Parliament (Prevention of Disqualification) Act was challenged as
violative of the scheme of Art. 101-104 of the Constitution. Contended a person holding
such office of profit, was disqualified to become or be a Member of Parliament and that
such Member's seat would become vacant on the very day when they were elected (with
respect to those who were already holding the disqualifying office of profit, when they
were elected) and on the day they accepted the disqualifying office of profit (with respect
to those who accepted such disqualifying offices of profit during their tenure as Members
of Parliament). Therefore the Act violates constitutional scheme by enabling such
persons membership to be revived
Whether a law can be made retrospectively to remove the disqualification incurred on
account of holding offices of profit?-Yes it can.
Even if his/her nomination is not rejected and a person holding a disqualifying office of
profit, is elected as a MP, an election petition can be filed under section 100(1)(a) of RP
Act which provides that if the High Court is of opinion that on the date of his election, a
returned candidate was disqualified from being chosen to fill the seat under the
Constitution, the High Court shall declare the election of the returned candidate to be
void.
A seat becomes vacant only on after an adjudication in cases falling under Article 101(3)
(a), whereas, the seats become vacant without any adjudication on the happening of
specified events in respect of vacancies arising under Article 101(2), 101(3)(b) and
101(4). A vacancy under Article 101(3)(a) would occur in the case of disqualifications
enumerated under Article 102(1) only after there has been a decision on the subject of
such disqualification by the President.
The vacancies contemplated in Article 101(3)(a) will arise only when the disqualification
is decided upon and declared by the President under Article 103(1) or declared by the
Chairman or the Speaker of the House under Para. 6(1) of Tenth Schedule. Therefore in
 the case of vacancy under Article 101(3)(a), the vacancy of the seat is not automatic
consequent upon incurring the disqualification but would occur only upon a declaration
of the disqualification by the designated authority.
Therefore regard to disqualification on the ground of defection, the vacancy of the seat
would become operative only when a decision is rendered by the Chairman or the
Speaker of the House as the case may be declaring his disqualification. Similarly in
respect of the disqualification on the ground of holding an office of profit, the
vacancy of the seat would become operative only when the President decides the
issue on the subject of the alleged disqualification and declares that a particular
Member has incurred the same. Therefore Act does not enable revival of disqualified
membership and is not violative of scheme in Article 101-104.
If the Member does not make a voluntary declaration that he/she has incurred a
disqualification and if no one raises a dispute about the same, the Member would
continue in spite of accepting an office of profit.
The plea regarding violation of Article 14 merely because several other similar offices of
profit are not included in the exempted category, has no basis. As each office of profit
may have different effects and consequences on the Member, there is no viable basis for
the assumption that all offices of profit are equal and that all offices of profit should be
excluded.

Insolvency cases

Thampanoor Ravi v. Charupara Ravi, SC 1999

The Insolvency Act is a complete code and determination of all questions regarding
insolvency including a question as to whether (1) a person is an insolvent or not, or (2) an
insolvent be discharged or not and subject to what conditions, can be decided by the court
constituted under that Act alone
The disqualification contained in Article 191(1)(c) could be attracted only in a case
where a person is adjudged as insolvent as per the Insolvency Act and in the absence
of such adjudication it is not open to the High Court while trying an election petition to
find that the returned candidate is an insolvent and he could be held to be disqualified.
 Even though Article 191(1) of the Constitution does not include declaration by an
insolvency court, but the expression undischarged insolvent it clearly indicates that he
could become discharged only in terms of the provisions of the insolvency Acts and not
otherwise. It is implicit in the expression undischarged insolvent that a person does not
become so unless he has been adjudged insolvent and is not discharged by the court under
the insolvency Acts. The expression undischarged insolvent has acquired a particular
legal connotation and such expression cannot be used otherwise than in terms of the
insolvency enactments.

R Sivasankar Mehta v Election Commission of India, Mad HC 1967

The jurisdiction conferred under Article 192(1) of the Constitution on the Governor
to deal with a question arising under Article 191(1) is an exclusive one and it is not
open to this Court in writ proceedings to exercise jurisdiction to deal with that question.
Brundaban Nayak v Election Commission, SC held the opinion of the Election
Commission under Article 192(2) is in substance decisive, and when the Governor
forwards a complaint to the Election Commission, it is for the Election Commission to
proceed to try the complaint before giving its opinion. This view of the Supreme Court
was derived from the terms of Article 192(2) of the Constitution that the Governor "shall
act according to such opinion.
HC relied on the case and held that there is no question therefore of the Governor
before giving his decision, giving a further opportunity to the appellant to show
cause. The only enquiry that can be held in such a case is by the Election Commission.
That is the only occasion when the appellant can claim an opportunity to show cause
When a sitting member gets the necessary opportunity to put forward his objection at an
enquiry which is to be held by the Election Commission under Art. 192 and the Election
Commission comes to a decision on the disqualification and conveys its opinion about it
to the Governor, and the Governor acts upon that opinion and disqualifies the member,
there can be no more occasion for the Court to question the decision, either on
account of its merits or on account of the member not having been given proper
opportunity to show cause.
RK Garg v UOI
The Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and the Special
Bearer Bonds (Immunities and Exemptions) Act, 1981 were challenged under Article 14
of the Constitution. Also contended that the President had no power under article 123 of
the Constitution to issue the Ordinance and the Ordinance is, therefore, ultra vires and
void.
The Act was substantially a reproduction of the Ordinance. The long title of the Act was
to provide for certain immunities to holders of Special Bearer Bonds, 1991, and for
certain exemptions from direct taxes in relation to such Bonds and for matters connected
therewith.
Whereas for effective economic and social planning it is necessary to canalise for
productive purposes black money which has become a serious threat to the national
economy. And whereas with a view to such canalisation the Central Government has
decided to issue at par certain bearer bonds to be known as the Special Bearer Bonds,
1991, of the face value of ten thousand rupees and redemption value, after ten years, of
twelve thousand rupees; And whereas it is expedient to provide for certain immunities
and exemptions to render it possible for persons in possession of black money to invest
the same in the said Bonds;
The Ordinance was challenged on two grounds- i) one was that since the Ordinance had
the effect of amending the tax laws, it was outside the competence of the President under
article 123 and
ii) Since the subject-matter of the ordinance was in the nature of a Money Bill which
could be introduced only in the House of the People and the President had, therefore, no
power under article 123 to issue the Ordinance by-passing the special procedure provided
in articles 109 and 110 for the passing of a Money Bill.
The Act was brought into force with retrospective effect from the date of promulgation of
the Ordinance and Section 9(2) of the Act provided that anything done or any action
taken under the Ordinance shall be deemed to have been done or taken under the
corresponding provisions of the Act and the validity of anything done or any action
taken under the Ordinance is therefore required to be judged not with reference to the
Ordinancebut with reference to the Act. Therefore the court said it was wholly
 unnecessary to consider the constitutional validity of the Ordinance, because even if the
Ordinance be unconstitutional, the validity of anything done or any action taken
under the Ordinance could still be justified with reference to the provisions of the
Act
In any case, once it is accepted that the President has legislative power under article 123
to promulgate an Ordinance and this legislative power is co-extensive with the power of
the Parliament to make laws, if Parliament can by enacting legislation alter or amend
tax laws, equally can the President do so by issuing an Ordinance under article 123.
There have been, in fact, numerous instances where the President has issued an
Ordinance replacing with retrospective effect a tax law declared void by the High Court
or this Court.

10th schedule cases

Kilhota Hollohan v Zachillu
Paragraphs 6 and 7 of the 10th Schedule were challenged-Para 6 provided that the
decision of the Chairman or the Speaker of the House as to whether a member has
become disqualified will be final. Paragraph 7 provided that courts shall not have
jurisdiction in this matter.
Majority judgement held: Paragraph 7 of the Tenth Schedule excludes the jurisdiction
of all Courts including the Supreme Court and High courts, and brings about a change in
the operation and effect of Articles 136, 226 and 227 of the Constitution therefore, the
amendment would require ratification by half of the State Legislative assemblies in
accordance with the proviso to Article 368(2).
Respondents used Sajjan Singh and Shankari Prasad-Articles 31A and 31B do not either
in terms or in effect seek to make any change in article 226 or in articles 132 and 136-
they remain just the same as they were before: only a certain class of cases has been
excluded from the purview of Part III and the courts could no longer interfere, not
because their powers were curtailed in any manner or to any extent, but because there
would be no occasion hereafter for the exercise of their power in such cases.
Court held: This would not apply-There the jurisdiction and power of the Courts under
Articles 136 and 226 were not sought to be taken away nor was there any change brought
 about in those provisions either "in terms or in effect", since the very rights which could
be adjudicated under and enforced by the Courts were themselves taken away by
the Constitution. If in effect these Articles are rendered ineffective and made
inapplicable where these articles could otherwise have been invoked or would, but
for Paragraph 7, have operated there is `in effect' a change in those provisions attracting
the proviso. Indeed this position was recognised in Sajjan Singh's case where it was
observed: "If the effect of the amendment made in the fundamental rights on Article
226 is direct and not incidental and is of a very significant order, different
considerations may perhaps arise.
In the present cases, though the amendment does not bring in any change directly in the
language of Article 136, 226 and 227 of the Constitution however, in effect paragraph 7
curtails the operation of those Articles with respect to matters falling under the Tenth
Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning
of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso
and ratification was necessary.
The test of severability requires the Court to ascertain whether the legislature would
at all have enacted the law if the severed part was not the part of the law and
whether after severance what survives can stand independently and is workable. If
the provisions of the Tenth Schedule are considered in the background of the legislative
history, namely, the report of the `Committee on Defections' as well as the earlier Bills
which were moved to curb the evil of defection it would be evident that the main
purpose underlying the constitutional amendment and introduction of the Tenth
Schedule is to curb the evil of defection which was causing immense mischief in our
body- politic.
The principle of severability can be equally applied to a composite amendment which
contains amendment in provisions which do not require ratification by States as well as
amendment in provisions which require such ratification and by application of the
doctrine of severability, the amendment can be upheld in respect of the amendments
which do not require ratification and which are within the competence of Parliament
alone. Only these amendments in provisions which require ratification under the proviso
need to be struck down or declared invalid.
 The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend
strength to the main purpose which was to curb the evil of defection. It cannot be said
that the constituent body would not have enacted the other provisions in the Tenth
Schedule if it has known that Paragraph 7 was not valid. Nor can it be said that the rest of
the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is
found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be
severable from the rest of the provisions.
The finality clause in Para 6(1) of the Tenth Schedule is not decisive. In Brundaban
Nayak v. Election Commission of India & Anr., [1965] 3 SCR 53, in spite of finality
attached by Article 192 to the decision of the Governor in respect of disqualification
incurred by a member of a State Legislature subsequent to the election, the matter was
examined by this Court on an appeal by special leave under Article 136 of the
Constitution against the decision of the High Court dismissing the writ petition filed
under Article 226 of the Constitution. Similarly in Union of India v. Jyoti Prakash
Mitter, [1971]3 SCR 483, in spite of finality attached to the order of the President with
regard to the determination of age of a Judge of the High Court under Article 217 (3) of
the Constitution, this Court examined the legality of the order passed by the President
during the pendency of an appeal filed under Article 136 of the Constitution. Such
finality, being for the statute alone, does not exclude extraordinary jurisdiction of
the Supreme Court under Article 136 and of the High Courts under Articles 226
and 227.
The Constitution did not evince any intention to invoke Article 122 or 212 in the
conduct of resolution of disputes as to the disqualification of members under
Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of
disqualification are, in fact, not before the House; but only before the Speaker as a
specially designated authority. The Speaker or the Chairman, acting under paragraph 6(1)
of the Tenth Schedule is a Tribunal.
However, the scope of judicial review under Articles 136, 226 and 227 of the
Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6
would be confined to jurisdictional errors only, viz., infirmities based on violation of
constitutional mandate, mala fides, non- compliance with rules of natural justice
 and perversity. But judicial review cannot be available at a stage prior to the making of a
decision by the Speaker/Chairman.
The principle that is applied by the courts is that in spite of a finality clause it is open to
the court to examine whether the action of the authority under challenge is ultra vires the
powers conferred on the said authority. Such an action can be ultra vires for the reason
that it is in contravention of a mandatory provision of the law conferring on the authority
the power to take such an action. It will also be ultra vires the powers conferred on the
authority if it is vitiated by mala fides or is colourable exercise of power based on
extraneous and irrelevant considerations.
An ouster clause confines judicial review in respect of actions falling outside the
jurisdiction of the authority taking such action but precludes challenge to such action on
the ground of an error committed in the exercise of jurisdiction vested in the authority
because such an action cannot be said to be an action without jurisdiction. An ouster
clause attaching finality to a determination, therefore, does oust certiorari to some extent
and it will be effective in ousting the power of the court to review the decision of an
inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction
and has merely made an error of law which does not affect its jurisdiction and if its
decision is not a nullity for some reason such as breach of rule of natural justice.
Questions of disqualification of members of the House are essentially matters pertaining
to the Constitution of the House and, therefore, the Legislature is entitled to exert its
exclusive power to the exclusion of the judicial power. To contend that the vesting of
adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on
the ground of likelihood of political bias is unsound. The Speakers/Chairmen hold a
pivotal position in the scheme of Parliamentary democracy and are guardians of the rights
and privileges of the House. They are expected to and take far reaching decisions in the
functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under
the Tenth Schedule in such a constitutional functionaries should not be considered
exceptionable.
The direction given by the political party to a member belonging to it, the violation of
which may entail disqualification under paragraph 2(1)(b), would have to be limited to a
vote on motion of confidence or no confidence in the Government or where the
 motion under consideration relates to a matter which was an integral policy and
programme of the political party on the basis of which it approached the electorate.
The voting or abstinence from voting by a member against the direction by the political
party on such a motion would amount to disapproval of the programme of the basis of
which he went before the electorate and got himself elected and such voting or
abstinence would amount to a breach of the trust reposed in him by the electorate.
Minority judgement: The power to construe the meaning of the provisions in the
Constitution and the laws is entrusted to the judiciary with finality attached to the
decision of the SC inter alia by Article 141 about the true meaning of any enacted
provision and Article 144 obliges all authorities in the country to act in aid of the SC. It
is, therefore, not permissible in our constitutional scheme for any other authority to claim
that power in exclusivity, or in supersession of the Court's verdict.
The decision relating to disqualification of a member does not relate to regulating
procedure or the conduct of business of the House provided for in 122(2) and 212(2).
That being so, the matter falls within the ambit of Clause (1) only of Articles 122 and 212
as a result of which it would be vulnerable on the ground of illegality and perversity and,
therefore, justiciable to that extent. It is, therefore, not possible to uphold the objection of
jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth
Schedule when justiciability of the clause is based on a ground of illegality or perversity
Non-compliance of the special procedure so prescribed in Article 368 (2) cannot
bring about the result of the Constitution standing amended in accordance with the
terms of the Bill since that result ensues only at the end of the prescribed mandatory
procedure and not otherwise.
The Doctrine of Severability applies in a case where an otherwise validly enacted
legislation contains a provision suffering from a defect of lack of legislative
competence and the invalid provision is severable leaving the remaining valid provisions
a valid provisions a viable whole. This doctrine has no application where the
legislation is not validly enacted due to non-compliance of the mandatory legislative
procedure such as the mandatory special procedure prescribed for exercise of the
constituent power. It is not possible to infuse life in a still born by any miracle of deft
surgery.
Ravi S Naik v UOI SC 1994
Two M.L.A.s, Bandekar and Chopdekar, had been elected on the ticket of MGP party, but
they accompanied the leader of Congress (I) Legislative Party when he met the Governor
to show that he had the support of 20 MLAs. On this conduct alone, the Speaker held that
they had given up membership of the MGP party and disqualified them for being a
member of the House.
Court held: Paragraph 2(1)(a) provides for disqualification of a member of a House
belonging to a political party "if he has voluntarily given up his membership of such
political party". The words "voluntarily given up his membership" are not
synonymous with "resignation" and have a wider connotation. Even in the absence
of a formal resignation from membership an inference can be drawn from the
conduct of a member that he has voluntarily given up his membership of the
political party to which he belongs".
The Speaker, while passing an order in exercise of his powers under subparagraph (1) of
paragraph 6 of the Tenth Schedule functions as a tribunal and the order passed by him
is subject to judicial review under Articles 32, 136, 226 and 227 of the Constitution-relied
on Kilhota Hollohan. In the absence of an authoritative pronouncement by the
Supreme Court the stay order passed by the High Court could not be ignored by the
Speaker on the view that his order could not be a subject-matter of court
proceedings and his decision was final.
Moreover the stay order was passed by the High Court which is a superior Court of
Record and "in the case of a superior Court of Record, it is for the court to consider
whether any matter falls within its jurisdiction or not.
However order was quashed with respect to Naik because there was a 1/3rd split from the
original political party.

MP Singh v Bihar Legislative Council SC 2004

 Relied on RS Naik-Legislative Council member contested parliamentary election as an
independent candidate-held he had given up membership of Congress party-hence he was
disqualified.

Kashinath G Jalmi v Speaker SC 1993

Whether an acting Speaker can review the order of a previous speaker under the 10th
schedule?
The remedy of an election petition is statutory, governed by the limitation prescribed
therein, unlike the remedy under Article 226 of the Constitution. For raising a dispute,
giving rise to any question whether a Member of a House has become subject to any of
the disqualification mentioned in clause (1) of Article 102 or 191, as the case may be,
there is no prescribed limitation, and so also for challenging the decision rendered under
Article 103 or 192 by a writ petition. The question of the disqualification of a Member on
the ground of defection and the Speaker's order thereon, rendered under the Tenth
Schedule, is of a similar nature and not based on the result of an election which can be
challenged only by an election petition in accordance with the provisions of
Representation of the People Act, 1951.
There is no express provision conferring the power of review on the Speaker in the Tenth
Schedule. The only question therefore, is whether the Speaker acting as the authority
under the Tenth Schedule has the power of review by necessary implication, empowering
him to set aside the earlier order of disqualification made by him on merits.
As held in Kihoto Hollohan, the Speaker's order is final being subject only to judicial
review, according to the settled parameters of the exercise of power of judicial review.
The existence of judicial review against the Speaker's order of disqualification made
under para 6 is itself a strong indication to the contrary that there can be no
inherent power of review in the Speaker, read in the Tenth Schedule by necessary
implication. The need for correction of errors in the Speakers order made under the
Tenth Schedule is met by the availability of judicial review against the same, as held in
Kilhoto Hollohan.

G Viswanathan v. Speaker Tamil Nadu Legislative Assembly

 Appellants were expelled from their political parties-Speaker declared them unattached
members-they joined another political party.
Appellants contended that Paragraph 2(a) of the Tenth Schedule of the Constitution
comes into play only to disqualify a member who voluntarily gives up his membership of
the political party that had set him up as a candidate, and not when he is expelled from
the party and declared "unattached" i.e., not belonging to any political party.
Does a member of a House, belonging to a political party, become disqualified as
having voluntarily given up his membership of such political party on his joining
another political party after his expulsion from the former?
Since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected
member of a House shall be deemed to belong to the political party, if any, by which
he was set up as a candidate for election as such member, such person so set up as a
candidate and elected as a member, shall continue to belong to that party. Even if such a
member is thrown out or expelled from the party, for the purposes of the Tenth
Schedule he will not cease to be a member of the political party that had set him up
as a candidate for the election. He will continue to belong to that political party even if
he is treated as `unattached'.
The act of voluntarily giving up the membership of the political party may be either
express or implied. When a person who has been thrown out or expelled from the party
which set him up as a candidate and got elected, joins another (new) party, it will
certainly amount to his voluntarily giving up the membership of the political party which
had set him up as a candidate for election as such member-relied on RS Naik.
Labelling of a member as `unattached' has no recognition in the Tenth Schedule.
The classification of the members in the Tenth Schedule proceeds only on the
manner of their entry into the House, (1) one who has been elected on his being set up
by a political party as a candidate for election as such member; (2) one who has been
elected as a member otherwise than as a candidate set up by any political party -
usually referred to as an `independent' candidate in an election; and (3) one who has
been nominated. The categories mentioned are exhaustive. It is impermissible to invent a
new category or clause other than the one envisaged or provided in the Tenth Schedule.
 Being treated as `unattached' is a matter of mere convenience outside the Tenth Schedule
and does not alter the fact to be assumed under the explanation to paragraph 2(1). Such
an arrangement and labelling has no legal bearing so far as the Tenth Schedule is
concerned. If the contention urged on behalf of the appellant is accepted it will defeat
the very purpose for which the Tenth Schedule came to be introduced and would fail to
suppress the mischief, namely, breach of faith of the electorate.

Jagdish v State of Haryana

To determine whether an independent member has joined a political party the test is not
whether he has fulfilled the formalities for joining a political party. The test is whether he
has given up his independent character on which he was elected by the electorate. A mere
expression of outside support would not lead to an implication of a member joining a
political party. At the same time, non- fulfillment of formalities with a view to defeat the
intent of paragraph 2(2) is also of no consequence.
In case a member is put up by a National Political party, it is split in that party which is
relevant and not a split of that political party at the State level.
Members had given interviews saying they were joining the Congress party-held it
qualified as defection.

Election case-K Venkatachalam v A Swamickan

A petition under Article 226 of the Constitution was filed by Swamickan for a declaration
that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative
Assembly representing Lalgudi Assembly Constituency since he was not elector in the
electoral roll of Lalgudi Assembly Constituency for the general elections in question.
He alleged that Venkatachalam impersonated another person of the same name in the
electoral roll of Lalgudi Assembly Constituency and thus sworn a false affidavit that he
was elector of that constituency.
It was submitted that the respondent could not invoke the jurisdiction of the High Court
under Article 226 of the Constitution in view of Article 329(b) of the Constitution read
with Sections 81 and 100 of the Representation of People Act and only an election
petition was maintainable to challenge the election of the appellant. Election petition
 under Section 81 of the Act had to be filed within forty-five days from the date of
election of the returned candidate, that is the appellant in the present case. This was not
done. There is no provision under the Act that an election petition could be filed beyond
the period of limitation prescribed under Section 81 of the Act
In view of the judgment in the case of Election Commission of India v. Saka Venkata
Rao, AIR (1953) SC 210 it may be that action under Article 192 could not be taken as the
disqualification which the appellant incurred was prior to his election. Article 191, which
lays down the same set of disqualification for election as well as for continuing as a
member and Article 193, which prescribes the penalty for sitting and voting when
disqualified, are naturally phrased in terms wide enough to cover both pre and
supervening qualifications. But it also held that it does not necessarily follow that Articles
190(3) and 192(1) must also be taken to cover both. It, therefore, held that Articles
190(3) and 192(1) go together and provide remedy when a member incurs a
disqualification after he is elected as a member.
Article 226 of the Constitution is couched in widest possible term and unless there is
clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution
can be exercised when there is any act which is against any provision of law or violative
of constitutional provisions and when recourse cannot be had to the provisions of the Act
for the appropriate relief. In circumstances like the present one bar of Article 329(b)
will not come into play when the case falls under Articles 191 and 193 and whole of
the election process is over.
On the finding recorded by the High Court it is clear that the appellant in his nomination
form impersonated a person known as `Venkatachalam s/o Pethu', taking advantage of the
fact that such person bears his first name. Appellant would be even criminally liable as he
filed his nomination on affidavit impersonating himself. If in such circumstances if he is
allowed to continue to sit and vote in the Assembly his action would be a fraud on the
constitution.
He is liable to penalty of five hundred rupees in respect of each day on which he so sits or
votes and that penalty is recoverable as debt due to the State. There has not been any
adjudication under the Act and there is no other provision of the Constitution as to how
penalty so incurred by the appellant has to be recovered as a debt due to the State.
 Appellant is liable to penalty nevertheless as he knows he is not qualified for membership
of the Legislative Assembly and yet he acts contrary to law. Held appellant had ceased to
be a member of the Legislative Assembly.

Supreme Court jurisdiction cases

Tarachand Damu v State of Maharashtra, 1961 SC
If a person is acquitted of the offence charged and is convicted of a lesser offence, can it be said
that he was acquitted and the High Court had on appeal reversed the order of acquittal? Court
held: the word acquittal does not mean that the trial must have ended in a complete
acquittal of the charge but acquittal of the offence charged and conviction for a minor
offence (other than that for which the accused was tried) is included in the word acquittal.
The word "acquittal" therefore does not mean that the trial must have ended in a complete
acquittal but would also include the case where an accused has been acquitted of the charge of
murder and has been convicted of a lesser offence. In that view of the matter the appellant was
entitled, to a certificate under Art. 134 (1) (a) as a matter of right.

Bharat Bank v. Employees of Bharat Bank SC 1950

Does an industrial tribunal fall under the scope of Article 136?
Contended that the adjudication of the tribunal is not a judicial decision, because the
adjudication cannot bind the parties until it is declared to be binding by the Government
under section 15 of the Industrial Disputes Act.
Held: If it is permissible for the High Court to issue a writ of certiorari against an
industrial tribunal, it 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.
The provisions of clause (2) of section 15 leave no discretion in the Government
either to affirm, modify or reject the award. It is bound to declare it binding. It has no
option in the matter. In such a situation it is the determination by the Tribunal that
matters. Without that determination Government cannot function. It does not
possess the power either to adjudicate the dispute or to alter it in any manner
 whatsoever.. The rights of the parties are really affected by the adjudication contained in
the award, not by the Government's declaration which is automatic. The announcement of
the award by the Government gives it binding force but that does not affect the question
of the appealability of the determination under Art. 136 of the Constitution.
The language employed in this article is very wide and is of a comprehensive character.
The powers given are of an overriding nature. The article commences with the words
"Notwithstanding anything in this Chapter." These words indicate that the intention of the
Constitution was to disregard in extraordinary cases the limitations contained in the
previous article on the Court's power to entertain appeals. Art. 136, however, overrides
that qualification and empowers this Court to grant special leave even in case where the
judgment has not been given by a High Court but has been given by any Court in the
territory of India : in other words, it contemplates grant of special leave in cases
where a Court subordinate to a High Court has passed or made any order and the
situation demands that the order should be quashed or reversed even without
having recourse to the usual procedure provided by law in the nature of an appeal,
etc. The word "order" in Art. 136 has not been qualified by the word "final." It is clear,
therefore, that the power to grant special leave under this article against an order of
a Court could be exercised with respect to interlocutory orders also.
The tribunals have all the necessary powers of a Court of justice- they are 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. As quasi-judicial bodies they are out of the hierarchy of the ordinary judicial system
but that circumstance cannot affect the question of their being within the ambit of Art.
136.
The tribunal is deemed to be a Civil Court for certain purposes. As a Civil Court its
decisions are subject to appeal to a District Judge and a fortiori the Court's power under
Art. 136 would at once be attracted.

Sangram Singh v Election Tribunal Kotah SC 1955

Section 105 of the Representation of the People Act provides that every order of the
Tribunal made under this Act shall be final and conclusive.
 Held: The jurisdiction which articles 226 and 136 confer entitles the High Courts and this
Court to examine the decisions of all Tribunals to see whether they have acted illegally.
That jurisdiction cannot be taken away by a legislative device that purports to confer
power on a tribunal to act illegally by enacting a statute that states its illegal acts shall
become legal the moment the tribunal chooses to say they are legal. HV Kamath v Ahmad
Ishaque- the jurisdiction under article 226 having been conferred by the Constitution,
limitations cannot be placed on it except by the Constitution itself
The High Courts and the Supreme Court alone can determine what the law of the land is
vis-a-vis all other courts and tribunals and they alone can pronounce with authority and
finality on what is legal and what is not. All that an inferior tribunal can do is to reach a
tentative conclusion which is subject to review under articles 226 and 136.
That, however, is not to say that the jurisdiction will be exercised whenever there is an
error of law. The High Courts do not, and should not, act as Courts of appeal under article
226. Their powers are purely discretionary and though no limits can be placed upon that
discretion it must be exercised along recognised lines and not arbitrarily; and one of the
limitations imposed by the Courts on, themselves is that they will not exercise
jurisdiction in this class of case unless substantial injustice has ensued, or is likely to
ensue.
In Re Keshav singh-The terms of Art. 143(1) are very wide and all that they require is that the
President should be satisfied that the questions to be referred are of such a nature and of such
public importance that it would be expedient to obtain the -Supreme Court opinion on them. The
Presidents order making the present Reference showed that he was so satisfied, and therefore the
Reference was competent. The argument that a Reference "under Art. 143(1) could only be on
matters directly related to the Presidents powers and duties under the Constitution was
misconceived.
It is not obligatory on the Supreme Court to answer a Reference under Art. 143(1)-the
word used in that Article being may, in contrast to the word shall used in Art. 143(2).
Refusal to make a report answering the questions referred would however be justified only for
sufficient and satisfactory reasons e.g., the questions referred being of a purely socio-economic
or political character with no constitutional significance at all. The present Reference raised
questions of grave constitutional importance and the answers given by the Court could help the
President to advise the Union and State Governments to take suitable legislative or executive
action. It was therefore the duty of; the court to answer it. The advisory opinion rendered by
the Court in the present Reference proceedings was not adjudication properly so called,
and would bind no parties as such.

Zee Telefilms v UOI- If there is any violation of any constitutional or statutory obligation or
rights of other citizens, the aggrieved party may not have a relief by way of a petition under
Article 32. But that does not mean that the violator of such right would go scot-free merely
because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for
violation of a right of a citizen. Though the remedy under Article 32 is not available, an
aggrieved party can always seek a remedy under the ordinary course of law or by way of a
writ petition under Article 226 of the Constitution which is much wider than Article 32.

Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental
rights as well as non-fundamental rights. The words "any person or authority" used in Article 226
are, therefore, not to be confined only to statutory authorities and instrumentalities of the State.
They may cover any other person or body performing public duty. Thus, it is clear that
when a private body exercises its public functions even if it is not a State, the aggrieved
person has a remedy not only under the ordinary law but also under the Constitution, by
way of a writ petition under Article 226.

Election Commission v Saka Venkata Subba Rao

It cannot be said that if a tribunal or authority permanently located and normally carrying on its
activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights
of parties therein, such tribunal or authority must be regarded as functioning within the
territorial limits of the High Court and being therefore amenable to its jurisdiction under article
226

Lt Col Khajoor Singh v UOI-

 Whether the Government of India as such can be said to have a location in a particular
place, viz., New Delhi, irrespective of the fact that its authority extends over all the States
and its officers function throughout India, and
(ii) Whether there is any scope for introducing the concept of cause of action as the basis
of exercise of jurisdiction under Art. 226.
Held: the clause "including in appropriate cases any Government" goes with the
preceding word "authority", and on a plain and reasonable construction it means that the
word " authority" in the context may include any Government in an appropriate case
Relied on Subba Rao-A Government may be functioning all over a State or all over India;
but it certainly is not located all over the State or all over India. It is true that the
Constitution has not provided that the seat of the Government, of India will be at New
Delhi. However, it is common knowledge that the seat of the Government of India is
in New Delhi 'and the Government as such is located in New Delhi. The absence of a
provision in the Constitution can make no difference to this fact.
It is not permissible to read in Art. 226 the residence or location of the person affected by
the order passed in order to determine the jurisdiction of the High Court. That
jurisdiction depends on the person or authority passing the order being within those
territories and the residence: or location of the person affected can have no relevance on
the question of the High Court's jurisdiction (Art 226 was amended to provide for cause
of action)
Art. 226 refers not to the place where the Government may be functioning but only to the
place where the person or authority is either resident or is located. So far therefore as a
natural person is concerned, he is within those territories if he resides there permanently
or temporarily. So far as an authority (other than a Government) is concerned, it is
within the territories if its office is located there.

KS Rashid v IT Investigation Commission SC 1954

The remedy provided for in article 226 of the Constitution is a discretionary remedy and
the High Court has always the discretion to refuse to grant any writ if it is satisfied that the
aggrieved party can have an adequate or suitable relief elsewhere. In this case, the appellants
had already availed of section 8(5) of the Investigation Commission Act and a reference was
made to the High Court of Allahabad in terms of that provision which was awaiting decision.
Therefore the court refused to allow the appellants to invoke the discretionary jurisdiction under
article 226 of the Constitution