Professional Documents
Culture Documents
6
I. Doctrine of Territorial Nexus:.................................................................................................................6
a) Wallace Brothers and Co. v Commissioner, Income Tax...................................................................6
b) Tata Iron and Steel CO. v State of Bihar............................................................................................6
c) Charu Sila Dasi v State of Bihar (IMP)...............................................................................................7
II. Doctrine of Colorable Legislation..........................................................................................................8
a) State of Bihar v Kameshwar Singh.....................................................................................................8
b) K.C. Gajapati Narayan Deo v State of Orissa.....................................................................................9
c) Union of India v H.S. Dhillon...........................................................................................................10
I. Doctrine of Repugnancy........................................................................................................................11
a) Vijay Kumar Sharma v State of Karnataka (E).................................................................................13
b) Second ITC decision (ITC Ltd. v Agricultural Produce Market Committee, 2002)........................13
a) Zaverbhai v State of Bombay (E)......................................................................................................15
b) Tikaramji v State of UP....................................................................................................................15
c) Hoechst Pharmaceuticals v State of Bihar........................................................................................15
d) M Karunanidhi v Union of India......................................................................................................16
e) Deep Chand v State of UP.................................................................................................................17
II. Administrative Relations......................................................................................................................17
III. Financial Relations..............................................................................................................................17
A. Mafatlal Industries v. Union of India [(1997) 5 SCC 536]..............................................................17
B. Commissioner, Hindu Religious Endowments v. L.T. Swamiar [AIR 1954 SC 282].....................17
C. International Airport Authority v. Delhi Municipal Coroporation [AIR 1991 Del. 302].................18
D. New Delhi Municipal Committee v. State of Punjab [AIR 1997 SC 2847]....................................18
Module 2- Executive........................................................................................................................................19
I. President (Arts 52-62 and 70-72)..........................................................................................................19
II. Vice President (Arts 63-69 and 71)......................................................................................................21
III. Executive Power of the Union (Art 73)..............................................................................................21
IV. Council of Ministers + Conduct of Govt Business (Arts 74,75,77,78)..............................................21
V. Case Law for the Executive Power of the Executive...........................................................................22
a) K.M Nanavati v State of Bombay.....................................................................................................22
b) Khehar Singh v UOI.........................................................................................................................22
c) Kuljit Singh Case v Lt. Gov of Delhi................................................................................................23
d) Maruram v UOI.................................................................................................................................23
e) Epuru Sudhakar v Gov of AP............................................................................................................23
f) Devendra Pal Singh v NCT of Delhi.................................................................................................24
VI. Legislative Power of the Executive (Arts 123 And 213)....................................................................24
a) A.K. Roy v UOI................................................................................................................................25
b) T. Venkata Reddy and K. Nagaraj....................................................................................................25
c) S.R. Bommai v UOI..........................................................................................................................26
d) B.C Wadhwa v State of Biahr...........................................................................................................26
e) Krishna Kumar v State of Bihar........................................................................................................26
VII. Judicial Power of the Executive (Arts 72 and 161)...........................................................................27
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VIII. Office of the Governor.....................................................................................................................27
a) B.P. Singhal v UOI............................................................................................................................27
b) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly...................................30
Module 3: The Parliament................................................................................................................................31
I. Rajya Sabha...........................................................................................................................................31
a) Kuldip Nayar v UOI..........................................................................................................................31
II. OFFICE OF PROFIT...........................................................................................................................33
a) Shibu Soren v Dayanand Sahay........................................................................................................33
b) Biharilal Dobre v Roshan Dobre......................................................................................................33
c) Satu Charla Raju v V Pradeep Kumar Dev.......................................................................................34
d) Jaya Bacchan v UOI..........................................................................................................................34
e) Pranab Mukherjee Case.....................................................................................................................35
III. DEFECTION......................................................................................................................................35
a) Kihoto Hollohan................................................................................................................................35
IV. Powers and Privileges.........................................................................................................................37
a) P.V. Narasimha v State.....................................................................................................................37
b) Dr. Jatish Chandra Ghose v Hari Sadhan Mukherjee.......................................................................38
c) Suresh Chandra Banerji v Puneet Goala...........................................................................................38
d) M.S.M Sharma v Sri Krishna Sinha..................................................................................................39
a) Raja Ram Pal v Hon’ble Speaker, Lok Sabha (IMP)........................................................................39
V. Art 107- legislative procedure..............................................................................................................40
a) Manoj Narula v UOI.........................................................................................................................41
Freedom of Religion- Not there.......................................................................................................................45
a) Commissioner Hindu Religiois Endowments v Srilakshmendra Tirth Swamiya.............................45
b) Revd. Stanislaus................................................................................................................................45
c) Church of God Full Gospel Society..................................................................................................45
d) Acharya Jagdhishvaran.. v Commisione rof Police, Calcutta..........................................................45
e) Commisioner of Police v Acharya…................................................................................................46
f) Bijoy Emmanuel v State of Kerala....................................................................................................46
g) S.P Mittav v UOI..............................................................................................................................46
The Judiciary....................................................................................................................................................47
I. Original Jurisdiction-Contempt of Court...............................................................................................47
a) C.K. Daphtary v O.P Gupta...............................................................................................................47
b) P.N. Duda v P. Shiv Shankar............................................................................................................47
c) Delhi J. Service Asscn v State of Gujarat.........................................................................................48
d) Income Tax Appellate Tribunal v B.K. Agarwal..............................................................................48
II. Original Jurisdiction-Art 32.................................................................................................................49
III. Original Jurisdiction-Art 131..............................................................................................................49
a) State of Bihar v UOI..........................................................................................................................49
b) State of Rajasthan v UOI..................................................................................................................49
c) State of Karnataka v UOI..................................................................................................................50
IV. Appellate Jurisdiction-Normal............................................................................................................50
a) Konkan Railway v Rani Construction (appeal by special leave)- Overruled...................................50
b) S.B.P and Co. v Patel Engineering Ltd.............................................................................................51
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V. Appellate Jurisdiction- Tribunal..........................................................................................................51
c) Bharat Bank v Employees of Bharat Bank........................................................................................51
d) Jaswant Sugar Mill v Laxmi Chand..................................................................................................52
e) Gujarat Steel Tubes v Mazdoor Union..............................................................................................53
f) L. Chandra Kumar v UOI..................................................................................................................53
VI. Advisory Jurisdiction- 143..................................................................................................................54
a) In re Kerala Edu Bill-........................................................................................................................54
b) In re Berubari,...................................................................................................................................54
c) In re Keshav Singh:...........................................................................................................................54
d) In re Cauvery:...................................................................................................................................55
e) In re Ram Janmabhumi:....................................................................................................................55
f) Third Judges’ Case............................................................................................................................55
VII. Court’s Power to do Complete Justice..............................................................................................55
a) Rupa Ashok Hura v A Hura..............................................................................................................55
VIII. Writ Jurisdiction...............................................................................................................................56
IX. Appointment of Judges.......................................................................................................................58
a) S.P. Gupta v UOI-First Judges’ Case:...............................................................................................58
b) Supreme Court Advocates –on-record Asscn v UOI (1993) (2nd Judges’ Case)..............................58
c) In Re: Special Reference 1 of 1998 (3rd Judges’ Case).....................................................................60
d) Supreme Court Advocates –on-record Asscn v UOI (2016) (NJAC Judgment)..............................60
Amendment Powers (Beyond Keshavanda Bharati)........................................................................................62
A. Indira Nehru Gandhi v. Raj Narain [(1975) 2 SCC 159].................................................................62
B. Minerva Mills v. Union of India [AIR 1980 SC 1789]....................................................................63
C. Waman Rao v. Union of India [AIR 1981 SC 271].........................................................................63
D. I.R. Coelho v. Union of India [(2007) 2 SCC 1]..............................................................................64
Taxation Powers: Trade and Commerce and Intercourse................................................................................66
E. Atiabari Tea Co. v. State of Assam [(1961) 1 SCR 809].................................................................66
F. Automobile Transport Ltd. v. State of Rajasthan and Ors. [(1963) 1 SCR 491]..............................68
G. State of Mysore v. H. Sanjeeviah [(1967) 2 SCR 361]....................................................................68
H. Jindal Stainless Steel Co. v. State of Haryana and Ors. [.................................................................69
Emergency Provisions......................................................................................................................................70
I. National Emergency..............................................................................................................................70
a) ADM Jabalpur v Shiv Kanth Shukla (overruled)..............................................................................70
a) Bhut Nath v State of West Bengal....................................................................................................71
II. State Emergency...................................................................................................................................71
a) BJ Anand v President of India...........................................................................................................72
b) S.R. Bommai v UOI..........................................................................................................................72
c) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly...................................73
3
CENTER-STATE RELATIONS
(DO THE REST FROM WRITTEN NOTES)
Article 245
(1) Parl has juris to make laws for entire terr of Ind and State for theirs own terr. (subject to Const
(2) If Indi man goes abroad and commits bigamy, he can be punished. (laws have extraterritorial
operation)
What happens when the law is made the State?
-as a general rule it doesn’t have extra-terr operation.
6
by way of rent. Arrears of the rent due to the landlord prior to the date of acquisition were to vest in
the State and half of these were to be given to the landlord as compensation.]
Both these provisions were purported to have been enacted under e42.
Court held that the item of deduction provided for in Section 23(f) was a fictitious item wholly
unrelated to facts. There was no definable pre-existing liability on the part of the landlord to execute
works of any kind for the benefit of the raiyat. What was attempted to be done, therefore, was to
bring within the scope of the legislation something which not being existent at all could not have
conceivable relation to any principle of compensation.
This was, therefore, held to be a colourable piece of legislation, which though purporting to have
been made under Entry 42 could not factually come within its scope.
Further, the net result of section 4(b) was at the State Government was given the power to
appropriate to itself half of the arrears of rent due to the landlord without giving him any
compensation whatsoever.
- It was held that ‘taking of whole and returning half means nothing more or less than taking half
without any return and this is naked confiscation, no matter whatever specious form it may be
clothed or disguised.
- The impugned provision therefore, in reality, does not lay down any principle for determining the
compensation to be paid for acquiring the arrears of rent.’
The Court stated that e42 of l3 only described a legislative head and in deciding the competency of
legislation under this entry, the Court cannot look into the justice and the propriety of the principles
of compensation, however, it must necessarily be a principle of compensation, whether just or unjust.
And there could be no principle of compensation based on something unrelated to facts, which was
the present case.
It was held invalid because on legislating upon those topics, the State had gone beyond the ambit of
e42, l3, sch 7 of the Constitution under which it was purported to have been enacted.
It is not that the State was encroaching upon a Union power. As it did not come under the relevant
entry, the consequence was that half of the arrears of rent and 12.5% of the gross assets of an estate
was taken away, otherwise than of authority of law.
8
of assets. The exclusion formed a ‘matter’ wrt e97 l1 and therefore, agricultural land cannot be
included within it.
The Court observed that there are several other matters that have been specifically excluded from l1,
like e84 (excise on alcoholic liquors for human consumption and on opium, Indian hemp and other
narcotic drugs and narcotics), e82 (taxes on agricultural income have been excluded from the ambit
of taxes on income), etc. All of these have been included within the legislative powers of the State
under l2. Agricultural income- e46 l2; duties of excise- e84 l1. However, the same is not the case
with taxes on capital value of agricultural land, which has been excluded in e86 l1 but doesn’t fall
under any entry in l2.
Therefore, it cannot be legitimately inferred that taxes on the capital value of agricultural land were
designedly excluded from Entry 97, List I.
The Court found it impossible to limit the width of article 248 and e97 l1 by the words ‘exclusive of
agricultural land’ in Entry 86, List I. The words ‘any other matter’ in e97 l1 was held not to have
reference to topics excluded in entries 1-96 of l1.
The Court clarified that an entry in any list should be taken in its whole sense. Therefore, the matter
in Entry 86, List I, is the whole entry and not the Entry without the words ‘exclusive of agricultural
land’. The Court illustrated this point by stating that there were multiple entries relating to Preventive
Detention and these were for maintenance of public order, for defense, etc. These entries are not
about Preventive Detention only but it is the whole entry. It would be incorrect to say all these
entries deal with the same matter. Similarly, it would be erroneous to treat Entry 82, List I (taxes on
income other than agricultural income) as containing two matters, one, tax on income, and the other,
as other than agricultural income.
Article 248 is framed in widest possible terms- therefore the residuary powers should also be widest
possible. If matter is not in l2 then it can be legislated by the Center, no need to look at l1. Court
cannot cut down the width of the wide words of article 248.
Several CADs were cited in the judgment as well to prove the Courts’ point,
The three lists are cxhaustive in nature.
After the above conclusion, the Court came to the question as to whether the impugned Act is a law
with respect to Entry 49, List II.
The Court examined several case laws to answer this question. The requisites of a tax under Entry
49, List II, was summarized by the Court as:
(1) It must be a tax on units, that is lands and buildings separately as units.
(2) The tax cannot be a tax on totality, i. e., it is not a composite tax on the value of all lands and
buildings.
(3) The tax is not concerned with the division of interest in the building or land. In other words, it is
not concerned whether one person owns or occupies it or two or more persons own or occupy it.
Basically this tax isn’t a personal tax, but one on property.
The Court concluded that nature of the wealth tax imposed under the Wealth Tax Act, as originally
stood, was different from that of a tax under Entry 49, List II, and it did not fall under this entry.
Therefore, the Act was not a law wrt e49 l2 and thus not a tax imposed under the relevant entry.
In S. Satpal and Co. v Lt. Gov. Delhi, the Court held that if a statute is found to be invalid on the
grounds of legislative competence, it does not permanently inhibit the legislature from reenacting the
same if the power to do so is properly traced and established. In such a situation, it cannot be said
9
that the subsequent legislation is merely a colourable legislation or a camouflage to re-enact the
invalidated previous legislation.
I. DOCTRINE OF REPUGNANCY
Article 254(1)
- prov of law made by State repugnant to prov of law made by Parl which the latter is competent to
enact or to any prov of existing law wrt a matter on the Conc List
- subject to provisions of (2)
- law made by Parl whether passed before or after that of the State or the existing law will prevail.
- State law to the extent of repugnancy, void.
(2):
- if a State Law is repugnant to Central law but has been reserved for consideration by the
President, then it shall prevail in that State.
- However, Parl can enact a law at any time, adding to, amending, varying or repealing the law so
made by the State leg.
254(1)
If any prov is repugnant (in direct conflict) with a law that parliament is competent to enact or to any
existing law wrt one of the matters in the Conc List, then Parliamentary or existing law prevails over
the State law.
Therefore it means repugnancy wont only occur in concurrent list, it can occur in all lists.
Existing law- pre-constitutional law or existing law made prior to the state. (law made by parliament
will prevail)
Repugnancy b/w two laws when both the laws are applied to the same facts and conflicting results
are produced. Contradiction in the actual terms of the statute.
Parliamentary law prevails over the state law, it doesn’t matter whether it was enacted before or after
the State law. To the extent of repugnancy, the State law would be void.
Most common appl of the provision- central and state law happen to be of the same matter in the
Conc list and there is repugnancy b/w them.
Repugnancy b/w two statutes arises when they are fully inconsistent w each other and have
absolutely irreconcilable provisions and if the laws made by Parliament and state legislations occupy
the same field.
Repugnancy has to be there in fact and not based upon a mere possibility.
The SC has said that every effort should be made to reconcile the two enactments and construe both
so as to avoid them being repugnant to each other.
If two enactments operate in different field w/o encroaching upon each other then there would be no
repugnancy.
Because of 254(1), the pow of the Parl to legislate wrt matters in l3 is supreme. Overriding effect.
If a State makes a law wrt a matter in the State List, then there is no question of repugnancy b/w it
and a Central law pertaining to a matter in the Central or Conc List. The view is based on the rule of
pith and substance. If a State Law is enacted wrt a matter in L1, it is void, but if it falls within l2 then
its incidental encroachment into the Conc List will not render it invalid.
Where the paramount legislation does not purport to be exhaustive or unqualified, there is no
inconsistency if another law introduces any qualification or restriction. This cannot be said to be
repugnant to the provision in the main or paramount law.
10
Before coming to the conclusion that there is a repeal by implication, the Court must be satisfied that
the two enactments are so inconsistent that it becomes impossible for them to stand together.
Although most of the SC cases till now have dealt with repugnancy and article 254(1) only wrt the
Con List, however, it could also be applicable when the laws fall in different lists and yet are
inconsistent to some extent.
- eg: the Parliament under article 253 can make laws wrt the State list to implement a treaty and
this law could come in conflict an already existing State law. In this case, the broader principle
of article 254(1) has to be applied in reaching the obvious conclusion that the Central law would
prevail over the State law.
- Examples where this interpretation of article 254(1) has been applied- Hingur Rampu Coal Co. v
State of Orissa and Srinivasa Raghavachur v State of Karnataka.
Under article 254(1), the question is not whether a statute falls under this entry or that but whether a
State law comes into conflict with a Central law or not.
It has been decided by the SC that for the application of this article:
1. there must be repugnancy b/w state law and law made by Parliament
2. if there is repugnancy, the State leg will be void only to the extent of repugnancy
e) Second ITC decision (ITC Ltd. v Agricultural Produce Market Committee, 2002)
ASK SOMEONE FOR THESE NOTES!!!
Central Act: Tobacco Board Act enacted under e52 l1
State Act: Agricultural Produce Markets Act enacted under e27 l2.
The Court held that the two Acts collide and cannot be operated simultaneously. Therefore,
necessarily, the Central Act, the Tobacco Board Act, would prevail and the State Act so far as it
relates to the levy of fee for sale and purchase of tobacco within the market area must be held to go
out of the purview of the said Act.
Here there was a contradiction in the actual terms of the statute.
11
Clarified further by the second ITC decision- since tobacco is controlled industry, parl has pow to
make leg wrt tobacco industry. When parliament covers the entire field of legislation, you apply
occupied field.
“doctrine of intended occupation”
- if parl has covered entire field of leg, in that situation you do not automatically declare state law
as void. You see if in that occupied field, can state law co-exist w the occupied field.
- If case is intended occupation- where parl intended to legislate everything about that subject, in
that situation, the state law cannot survive.
254(2)
254 (2) is an exception to the general rule in 254(1)
if prior assent is taken then that law will prevail in the territory of the state.
There may be some peculiar or local circumstances prevailing in a State making some special
provision, and not the uniform Central law, desirable on the matter. This article introduces an
element of flexibility.
The final say rests with the Center, which ultimately decides whether or not the Central law will give
way to the State law.
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State law will prevail only to the extent of inconsistency; it will not override the entire Central law.
The later legislations have to be on the same matters, cannot be other and distinct matters of a
cognate and allied character.
This article doesn’t operate when the two Acts operate in different fields (only matters in the Conc
List)
Article 254(2) operates when the following two conditions apply:
1. There is a valid Central law on the same subject-matter occupying the same field in the
Concurrent List to which the State law relates
2. The State legislation is repugnant to the Central law
Therefore, this means that if there is no central law then 254(2) doesn’t operate
254(2) becomes applicable only when the State law is repugnant to an earlier law enacted by
Parliament (even if the Parliamentary law is brought into effect later)
When a State act becomes repugnant to a Parliamentary law enacted thereafter, the article wont
apply. In this situation, the Parliamentary law would prevail over the State law.
The proviso to 254(2) qualifies the exception contained in this article- enlarges the power of the
Parliament (can thus enact legislation repugnant to the earlier state law). However, if the two deal
with separate and distinct matters though of a cognate and allied character, the state law is not
abrogated.
b) Tikaramji v State of UP
U.P. Sugarcane (Regulation of Supply and Purchase) Act of 1953
- regulation of supply and purchase of sugar cane
Parl subsequently enacted the Essential Commodities Act, 1955
- s 16(1)(b): any law in force in a state would be repealed “in so far as such law controls or
authorises the control of the production, supply and distribution of, and trade and commerce in,
any essential commodity”.
Also, cl. 7(1) of Sugarcane Control Order, 1955 also had effect of repealing the UP Act
The essential commodities therein comprised inter alia foodstuffs which would include sugar as well
as sugarcane and both sugar and sugarcane, therefore, came within the jurisdiction of the Centre
The petitioners challenged the constitutional validity of the U.P. Sugarcane (Regulation of Supply
and Purchase) Act of 1953 as well as two notifications issued by the State government under this
Act, regulating the supply and purchase of sugar cane. They contended that the passing of this Act by
the State Legislature was ultra vires its jurisdiction, the subject-matter of legislation being within the
exclusive jurisdiction of Parliament and repugnant to the Central Act.
The Court held that this section did not repeal the earlier state law as there was no repugnancy b/w
the two laws and both could co-exist although they both related to e33(b) in l3.
The proviso to 254(2) confers on Parl the pow to repeal a State law only when:
1.there was already a Central law on a matter in the Concurrent List
2.a State then made a law on the same matter inconsistent w the Central law
3. the State law received Presidential assent under 254(2).
The SC by literally interpreting the proviso to art 254(2), rules that Parl can repeal a State law only
when the above mentioned conditions are fulfilled.
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If no Parl law was in existence prior to the enactment of the State law on the matter, then the later
Parl law cannot expressly repeal the earlier State law; though in case of repugnancy, the Parl law
shall prevail to the extent of repugnancy. In this case, there was no Central law in the field when the
State law was enacted and so s16(1)(b) could not operate to repeal the UP Act.
The UP Act is a substantive law, covering a field not occupied by Parliament. Therefore no question
of its containing any provisions inconsistent w a law enacted by Parl could therefore arise. To such a
law, the proviso has no application and s16(1)(b) of the Central Act and c7(1) of the Sugarcane
Control Order must, in this view, be held to be void.
SC also pointed out that under the proviso to art 254(2), pow to repeal earlier law is conferred on parl
and the same cannot be delegated to an executive authority (wrt the Sugarcane Control Order, 1955)
This judgment removes the idea that Parliament can specifically repeal any State law in the Conc
area even if not repugnant to the Central law on that matter
15
h) Deep Chand v State of UP
B. International Airport Authority v. Delhi Municipal Coroporation [AIR 1991 Del. 302]
The International Airport Authority of India is its own juristic entity, constituted by the International
Airports Authority Act, 1971. It had its own property, fund and employees.
In this case, it was held that it was a statutory corporation distinct from the Central Government and
accordingly, the property vested in the authority was subject to municipal taxation.
The authority could not avail of tax immunity created by Article 285(1) of the Constitution.
16
C. New Delhi Municipal Committee v. State of Punjab [AIR 1997 SC 2847]
The question in this case pertained to whether the property of the States situated in the Union
Territory of Delhi would be exempt from taxation by the Delhi Municipality because of Article
289(1).
A nine-judge bench of the Supreme Court held in the affirmative. The term “Union taxation” under
Article 289 was held to be inclusive of taxes by the New Delhi Municipality.
The Court argued that Union Territories were directly under the control of the Union, and there was
no distribution of powers with respect to Union Territories. Therefore, “Union Taxation” had to
include municipal taxes levied by municipalities in the Union Territories, and it had to be given the
widest amplitude meaning.
V.
17
MODULE 2- EXECUTIVE
I. PRESIDENT (ARTS 52-62 AND 70-72)
Art 52- President of India
Art 53- exec pow of Union
(1): executive power of Union vested in pres and ex by him
- directly or indirectly through subordinate officers
- in accordance w the Const
(2): supreme command of the Defense Forces to be vested in the President
(3)(a): cannot transfer to the Pres any function conferred upon Gov of any State or other authority by
an existing law.
(b): Parl can confer functions on authorities other than the President
Art 54: election of the President by electoral college consisting:
(a): elected members of both Houses of parl
(b): elected members of State Legislative Assemblies
Art 55: manner of election
(1): uniformity in scale of repr of the diff States at the election of the Pres
(2): for securing uniformity b/w the States and parity b/w States and the Union, the number of
votes each elected member is entitled to cast is determined by:
(a) For State Leg Assemblies: dividing the total state population by the number of elected
members of the Legislative Assembly, there will be a quotient. Every elected member will
have as many votes as there are multiples of thousand in this quotient.
(b) If remainder is 500 or more then the vote of each member is increased by one.
(c) For the Houses of Parliament: each elected member will have as many votes as the number
obtained by diving the total no of votes assigned to the members of the Leg Assemblies of the
States according to (a) and (b) by the total no of elected members of both Houses.
- fractions exceeding ½ being counted as one and other fractions being disregarded
(3): system of proportional representation by means of the single transferrable vote
- secret ballot
until relevant figures for first census after 2026 have been published, the population is to be based on
the 1971 census.
Art 56- term of office
(1): 5 years from the date on which he enters office. Provided that:
(a) resign by writing under his hand to VP
(b) impeachment due to violation of Const (manner provided in art 61)
(c) notwithstanding expiration of term, he shall continue to hold office till successor enters upon his
office
(2): resignation to be communicated by VP forthwith to the Speaker of LS
Art 57: eligibility for reelection
- if already held office as Pres is eligible for re-election
Art 58: Qualifications:
(1) eligibility:
18
(a) citizen of India
(b) 35 or more years old
(c) qualified for election as a member of the LS
(2) cannot be holding office of profit under GoI or Govt of any State or local or other auth subject to
control of the said Govts (Pres/VP/Min not included)
Art 59: Conditions of Pres’s Office
(1): not a member of either House of Parl
- if a member of either House is elected Pres, deemed to have vacated seat from the day he entered
into his Office
(2): shall not hold Office of Profit
(3): - Use official residences w/o payment of rent
- Entitled to emoluments, allowances, privileges as determined by Parl
(4): emoluments and allowances not be diminished during his term
Art 60: Oath
- for every person acting or discharging functions of Pres
- in the presence of CJI (in his absence, senior most Judge of SC available
Art 61: Impeachment procedure
(1): Charge to be preferred by either House of Parl
(2): No charge to be preferred unless:
(a) - charge contained in reso which is moved after at least 14 days’ notice in writing
- signed by 1/4th or more members of that House
(b) reso passed by 2/3rd majority
(3): Other House shall investigate the charge or cause the charge to be investigated
- Pres has the right to appear and be represented at such investigation
(4): if the investigating House passes a reso by 2/3 rd majority declaring the charge against the Pres to
be sustained, it will have the effect of removing the Pres from his Office as from the date on which
the reso is so passed.
Art 62: election to fill vacancy and term of office of person elected to fill casual vacancy
(1): election to fill vacancy caused by expiration of term of office to be completed before the
expiration of the term
(2): if vacancy due to death, resignation or removal or otherwise, election to be held immediately, in
no case not later than 6 months
- the elected person will hold office for a full term
Art 70: Discharge of President’s functions in other contingencies
- Parl may make provs as it deems fit for the discharge of the functions of the Pres in any
contingency not provided.
Art 71: Matters related to election of Pres and VP
(1) doubts and disputes arising out of their election to be inquired into by SC- decision final
(2) if elect ion decl void by SC then acts done by him will not be invalidated
(3) Parl may make any law relating to election of Pres or VP
(4) election of Pres not to be called into question on the grounds of vacancy in the electoral college
Art 72: Pow to grant pardons/ suspend remit or commute sentences
(1) Pes has pw to grant pardon, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offense
19
(a) in all cases where punishment or sentence is by a Court Martial
(b) all cases where punishment is for an offense against any law relating to a matter to which
exec pow of the Union extends
(c) sentence of death
(2) (1)(a) shall not affect the pow of an officer of the Armed Forces of the Union to suspend,
remit or commute the sentence passed by a Court martial
(3) (1)(c) shall not affect the pow to suspend, remit or commute a death sentence of the Gov of a
State
[Reprieve- reduce the punishment in view of the specific facts and circumstances of the convict (death
sentence of pregnant lady changed to life imprisonment)
Respite- sentence delayed for a period of time
Remission- punishment reduction w/o changing the nature of punishment
Commutation- punishment reduction w changing the nature of punishment (changing from death sentence to
life imprisonment)
Pardon- clean slate, like the person didn’t commit the crime at all
Whether it falls within exec powers of gov or president depends under which law the act falls under (eg-
FERA is under Union law so under exec power of the president)
Pardon is only a process that happens after all judicial recourse is over]
20
(1B) A member of the House disqualified from being so under para 2 of 10 th Schedule shall be
disqualified to be appt as min for duration of that period
(2) Mins shall hold office during the pleasure of the Pres
(3) CoM collectively responsible to the LS
(4) President shall administer oath of office and secrecy – according to third schedule
(5) Min not a member of either House for 6 consecutive months shall cease to be Min at the
expiration of that period.
- Collective resp to the LS- not only jointly and severally but also individual resp. (not specifically
mentioned but is part of the convention)
- Pleasure of pres can be ex when a particular Minister isn’t acting according to the oath
(till here here was no clear guideline, subsequently, we see some guidelines emerging)
j) Maruram v UOI
An amendment in the CrPC, 1978 (addition of s433A)
there are two classes of persons who have been given life imprisonment: a) people who could have
been given death penalty b) those who were sentenced to death and whose punishment commuted to
life imprisonment. For the latter, by this amendment, there was a mandatory term that they have to
spend 14 years.
There was a challenge that this conflicts w the president and governor’s power as they had the power
to give him a sentence of less that 14 years
In this case, the court came w a guidance that pres and gov doesn’t ex pow independently but w aid
and advice of min
This pow can’t be ex arbitrarily and mala fide. Natural justice. No power is absolute
His oath has a limitation
Religion, caste, politics irrelevant
The court suggested specific guidelines need to be laid down
(the next case, clear guidelines were laid down, based on the S.R. Bommai decision)
22
4. Relevant material not considered
5. Order suffers from arbitrariness
6. If the pardon obtained on basis of fraud and correct set of facts not presented
Pre constitutional cases- power to pass ordinance was of absolute nature not necessarily emergency.
Prerogative power- No judicial review
23
Two conditions need to be satisfied:
1. both Houses should not be in session
2. Pres is satisfied that circumstances exist which render it necessary for him to take immediate
action
Orinance promulgated when the two Houses are in session is void. Can promulgate an ordinance
when only one House is in session because a Bill has to be passed through both Houses to become a
law. Thus, if only one House is in session, an emergency legislation will not be able to be passed.
The House in session may disregard the ordinance passed as a discourteous act if it is not consulted.
What should be done is that the House should pass a Bill with the exact same provisions as the
ordinance and then it should be promulgated as an Ordinance by the President.
Parl’s control over the ordinance is ex post facto as it is exercised after the ordinance is passed.
Ordinance isn’t anti-democratic- Council of Ministers resposinble to the Parliament; the Houses can
refuse to pass the ordinane when in session; can pass no confidence motion against the CoM.
4 ways an ordinance comes to an end:
1. Both Houses pass resolutions disapproving the ordinance
2. If the ordinance isn’t replaced by an Act within the stipulated period
3. The executive lets it lapse w/o bringing it before the Houses
4. If it is withdrawn by the Govt at any time
Pow to issue ordinances co-extensive with the legislative power of the President. Can only pass
ordinance on a matter in l2 if proclamation of Emergency is in operation.
24
Ordinances abolishing posts of part time village officers in the State. Not replaced by an Act of
Parliament, but it was succeeded by 4 ordinances
Court ruled that since the power to make an ordinance is a legislative and not an executive power, its
exercise couldn’t be questioned on such grounds as improper motives or non-application of mind.
Neither can it be challenged on grounds of its propriety, expedience and necessity.
It stands on the same footing as an Act of Parliament. The Courts can declare a Statute
unconstitutional when it transgresses constitutional limits, but they cannot inquire into the propriety
of the exercise of the legislative power. It has to be assumed that legislative discretion is properly
exercised.
The ordinance doesn’t become void ab initio when it comes to an end. Transactions completed under
it cannot be reopened when it comes to and end. Only ‘ceases to operate’ not void. (question of
whether the posts that had been abolished should be deemed to have been revivied)
25
Legislature has plenary power to legislate: temp legislation. Therefore, there is relief in equity
The firs Ordiannce was invalid as it wasn’t placed before the House.
Mandatory requirement:
1. The ordinace shall have same force as legislatute
2. It shall cease to operate force as legislature
Both conditions hae to be fulfilled: there is a need and placed before Parliament.
Art 213(2): Constituional condition: legal fiction (if conditions are satisfied)
3. Ordinance is wrt urgent need (a pre-requisite)
“Shall be made”, no exception but one- If House is very busy due to imp matters (Court will decide
this). Within6 weeks of House it will cease- onus on House to show they were busy
Rules of Procedure (Rule 140) in Vidhyan Sabha of Bihar- copy of ordinance was not sent to
assemnly by governor
(missing notes)
27
- However, with regard to the general question of public importance referred to the Constitution
Bench, touching upon the scope of Article 156 (1) and the limitations upon the doctrine of
pleasure, the petitioner has necessary locus. (on the basis of S.P. Gupta v UOI)
II. Scope of doctrine of pleasure
- Scope of doc-Origin in English law :
Shenton v Smith (Privy Council Case)
In Shenton v. Smith the Privy Council explained that the pleasure doctrine was a necessity because,
the difficulty of dismissing those servants whose continuance in office was detrimental to the State
would, if it were necessary to prove some offence to the satisfaction of a jury (or court) be such, as to
seriously impede the working of the public servic
Union of India v Tulsiram:
"In England, except where otherwise provided by statute, all public officers and servants of the
Crown hold their appointments at the pleasure of the Crown or durante bene placito ("during good
pleasure" or "during the pleasure of the appointor") as opposed to an office held dum bene se gesserit
("during good conduct"
H.M. Seervai also explains that Crown is not bound to show cause for dismissal
- Doctrine of pleasure is not license to act arbitrarily. It necessarily means reasonable exercise for
public good. In a society of rule of law, unfettered gov discretion should be narrow.
- Paradoxical if not imposed.
3 types of offices:
1. Art 310, 311: Defense and Civil Services
People hold at pleasure of the President but guidelines for removal given in the Consti
Therefore, no absolute discretion
2. Governor, minister, attorney general
Pleasure w/o restriction
Not a license to act arbitrarily or on your whim and fancies
3. President, SC
No doctrine of pleasure
- if some offices re held at the pleasure of the President w.o any restriction or limitation placd on
the same then they should be understood as being subject to the fundamentals of
constitutionalism.
- The absence of such limitations and restrictions means that he can be removed from office at any
time , w/o notice and w.o assigning any cause.
- But it is not a license to act w unfeterred discretion or to act arbitrarily, whimsically or
capriciously. Need to have a valid cause for removal of the person.
III. Position of a Governor under the Constitution
- integral part of the legislature of the State. Promulgation of ordincance, executive pow vested in
him and done in his name. Can grant pardons, reprieves, respites, etc., recommendation for
failure of constitutional machinery.
- State of Rajasthan v UOI:
Gov if formal channel of communication b/w Union and the State Govt
Makes report for failure of const machinery
- State of Karnataka v UOI
Gov’s office is independent and not employed under GoI.
28
- Rameshwar Prasad v UOI
He is not an agent of the President
- Governor has dual role- 1) link b/w Union and State. In certain special situation may act as Union
representative
2) Constitutional Head of State bound by advise of CoM
- Nehru opinions:
eminent person, not taken too great a part in politics
- Ambedkar:
Gov no power of interference in the admin of the province
- Governors are not expected or required to implement the policies of the government or popular
mandates. Their constitutional role is clearly defined and bears very limited political overtones.
- they owe their allegiance and loyalty to the Constitution and not to any political party and are
required to preserve, protect and defend the Constitution
- contention of respondents rejected that the Governor should be in sync w the policies of the
Union Govt or should subscribe to ideology of the party in the center
IV. Limitations/Restrictions upon the Power under Article 156(1) of the Constitution
- 156(3) does not limit 156(1).
- Gov cannot be removed on the grounds that he is not in sync or refuses to act as an agent of the
party in the center.
- Governor is not like the Ministers or Attorney General who too hold office at the pleasure of the
President because he is the Constitutional head of the State. Not the employee or agent of the
Union or part of a politucal team. Cannot be removed due to loss of confidense in the Gov.
- The Governor should be removed for valid reasons and what constitutes this depends on the facts
and cirumstances of the case.
V. Judicial Review of Withdrawal of President’s pleasure
- no cause needs to be disclosed for exercising power under Article 156, however a cause needs to
be there, otherwise there would be arbitrary exercise of power.
- Justice Bhagwati in Rajasthan v UOI-
if issue of constitutional determination, court cant fold hands just because there is some complexity. Court is
ultimate interpretor.
- need to act fairly and reasonably isn’t dispensed with by Article 156(1).
- Court assumes valid and compelling reasons for removal but if prima facie mala fide then burden
shifts- UOI will have to show docs
- Good and compelling reason- facts of the case
- Having regard to the nature of functions of the Governor in maintaining centre-state relations,
and the flexibility available to the Government in such matters- no interference unless a very
strong case is made out
- Decision is open to judicial review but to a limited extent
Doctrine of Pleasure (does not mean unlimited power)- valid grounds and opportunity to be heard under art
311
29
q) Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly
The gov postpones the Assembly session in Arunachal Pradesh, contrary to the aid and advice of his
Council. He further advised the Deputy Speaker to preside over the Assembly when considering the
removal of the Speaker.
Didn’t give the CM the opportunity to conduct a floor test and recommended action under 356.
A Constitution Bench of the SC invalidated this action (following S.R. Bommai), compelling the
President to withdraw the action under 356 after 6 months.
Further, it was held that summoning of any House w/o aid and advise of the CoM was unconst.
30
MODULE 3: THE PARLIAMENT
Article 79- Parliament
Art 80- Council of States (Kuldeep Nayar v UOI)
Art 81- House of People
Art 83- Duration of House of Parl
Art 84- Qualification
Arts 85-90; Arts 93-94; Art 98; Arts 101-102; Art 105
I. RAJYA SABHA
- States do not have equal representation as is in the American Senate
- Proportional representation gives due representations to minorities as well
- Nomination principle- gives representation to certain non-political interests which might not
otherwsue get any repr in Parl.
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(missing notes??)
Idea of profit has changed since Jaya Bachan. Before had to show the person is taking some pecuniary gain
34
t) Jaya Bacchan v UOI
She was appt as a member of Film Dev Council while member of RS.
Arguments: -Schedule of Parliament Prevention of Disqualification…..Act which doesn’t disqualify this
post from aegis of Office of Profit
-Although there is monthly honorarium of 5k, 10k entitlement, car w driver, telephone, free acco, med
treatment facilities but she isn’t taking any of them. So pecuniary gain is absent. So eventhough office, it is
not an office of profit.
Court says that this isn’t the correct way to interpret OoP. If there is gain and whether the gain coming out of
state expenses then irrespective of whether the gain is availed of or not, it is an OoP.
Have to show there is possibility of pecuniary gain. The remuneration is coming out of the funds of the
respective gov. Even if person not receiving the pecuniary gain the person is holding an OoP
(This is still a grey area, what will be treated as Office and Profit is still very subjective)
Corporate veil is lifted on when you can show there is a valid alter ego.
XIV. DEFECTION
Article 101-meaning of defection, 102(2)- what happens if defection and para 2 of Schedule 10-
exceptions, para 3- exception when not treated as defection
a) Kihoto Hollohan
The constitutional validity of the 10th Schedule of the Constitution introduced by the 52 nd
Amendment Act, 1985 was challenged.
10th Schedule was inserted to tackle the evil of political defection
Para 7 of 10th schedule was severed and the remaining schedule was saved. (6 th and 7th paras were
joined but only 7th was severed)
- Para 7: court will not have jurisdiction in respect of any matter connected w the disqualification of
a member of a House under this Schedule
Imp parts of the judgment is where imp of 10th schedule is discussed Amendment had intro 10th
schedule meant to deal w defection- subversion of the democratic process- unethical practice- when
you defect you are shaking the faith of the people.
- Idea is to save parl demo by saving unethical and unprincipled pol defections
10th schedule doesn’t provide adequate ground for disqualification- speech protected under 105 but
the kind of speech that affects fabric of parl demo isn’t protected
discussion on judicial review, how it is part of the basic structure
finality clause- juris of SC under 136 (special leave to appeal)
writ juris to HC
considering jud review to be part of BS of Const and the insertion of 10 th schedule was trying to cut
off jud review to the extent that the para had to be deleted.
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Jud review not barred, finality clause in para 6 doesn’t bar jud review.
Prob arises due to art 122 and art 212
Art 122- prob as can judicial review not take place?- Court says this doesn’t bar jud review here as
adjudication is being done and if that is being done then jud review has to be there. Adjudication is
being done by the Speaker/Chairman that acts as a tribunal and thus his decision is subject to jud
review.
- Speaker’s order would be open to judicial review on the grounds of jurisdictional errors based on
violation of constitutional mandate, mala fides, non-compliance w the rules of natural jusice and
perversity.
Justice Venkatshariya (referred to Just Oliver..?)
if lot of members of one party leaves and goes to another, the public feels cheated. Voted a
person due to him being a member of a particular party. Not presidential election where
candidate is highlighted more. Undermines public confidence which is source of sustenance in
ultimate analysis
it is pre decided that members of a pol party is supposed to vote in a particular manner but if you
do not do this it means going against the est ideology. Can only vote against if you take prior
permission. If not it is condoned by the Party
10th schedule has to be read harmoniously with art 105 (r to speech in parl which includes how
you vote) Court says 10th schedule doesn’t affect the freedom of voting as if you vite against the
party you stood for, it is unprincipled. Not conducive to parl demo.
Provisions of the 10th Schedule give recognition to the role of political parties in the political process.
Party goes before the electorate w a particular program and the candidate is elected on the basis of
this program. Therefore if he leaves after election, should give up seat and contest elections under the
new party that adopted him
Para 7 affectd Articles 136, 226 and 227 and thus is required to be ratified by half the State
legislatures in accordance w article 368(2) of the Constitution. Not ratified and therefore
constitutionally invalid. {ara 7 contains a proviso which stand aprart from rest of the schedule and
could thus be severed from the schedule.
8. Rules
8- rules that are to be made- maintaining of records, who belongs to which pol party- period of 6
months where nomi member became member of a particular pol party
The state of law after Suresh Chandra Banerji was considered to be unsatisfactory as it was felt that
many advantages would accrue to the community if the newspapers were allowed to publish reports
of proceedings of the Parl in good faith.
Thus article 361A was enacted
- no person shall be liable to civil or criminal proceedings in respect of publ of newspaper report of
substantially true proceedings in the House , unless publication proved to have been made with
malice.
Immunity not appl to a secret sitting of the Parl
39
Can Parl expel members- It wasn’t the first time that that motion came up (came up against Indira
Gandhi as well)
House in UK- very less power (Upper Chmaber was highest court till 1991)
105(3) specifically mentions0 all of powers
How can SC bring qualifications so powers continue to remain the same. Court doesn’t have power.
102- disqualification
Court: disqualification and expulsion is different (still qualified to be a member, expulsion is
punishment). Disqualification strikes at the very root of the cnadidate’s qualification and renders him
unable tomoccupy a Member’s seat. Expulision deal with a person who is otherwise qualified but in
the opinion of the House unworthy of membershio
Court rejected submission that Arts 101 or 102 in any way restricts the scope of 105(3).
Court found no violation of fr in general and 14, 20 or 21 in particular,
Proper opp to explain and defend had been given to the MPs.
Therefore no conflict n 101, 102 and
Judiciary can interfere
The Court refers to In re Keshav Singh (UP Legislative Assembly case)
- K.S published pamphlet describws corruption of 1 member. The Assembly said it lowers the
image, he was told to justify, he said he doesn’t care (demeanor), his conduct was reprehensible
- Arrest warrant issued- writ of habeas corpus in Allahabad HC, no pow to imprison, no
opportunity to argue- natural justice. He was released on bail. Again arrest warrant against
advocate and judges.
- Judges filed writ in HC
- House withdrew warrant and asked for justification.
- HC issued stay order- no reason to justify. Refer to SC under Art 143.
- Court: House has power for contrempt but not the judges who perform their function.
- Therefore, Curt interferes in parl proceedings, JR is possible but limited only to arbitrary action.
Thus in the present case the expulsion was upheld. Expulsion was punishment for contempt.
- should not affect constitutional machinery.s
These observations and findings imply that the Court has affirmed the justiciability issue and
consequently its power of JR.
41
a) Manoj Narula v UOI
Writ petition on criminalization of the House- 4 Ministers had criminal charges and should be
dropped from the cabinet.
Issue- whether the appt of these Ministers to the CoM required any interference of this Court
Const is silent on this matter
Contention of Petitioner:
- It is constitutional prerogative of the PM to appt the Ministers byt such choice cannot be exercised
arbitrarily. Cannot be oblivious to the honesty, integrity and criminal antecedents of the person who
is involved in serious criminal offences
- It is implied in the provisions that people w criminal antecedents should not be members of the LS
(Doctrine of Constitutional Implications)
- reliance was also placed on Doctrine of Constitutional Silence or Abeyance and Doctrine of
Implied Limitation
Contentions of the Respondents:
- apart from the disqualifications prescribed under Art 102(i)(e) and provs of the RPA, 1951, there
can be no other disqualification of an MP to hold the post of Minister
- Any additional prohibition under 75(1) by way of judicial interpretation is impermissible as PM
is the sole repository of pow under the Constitution to advise the Presdient as to who should
become a Min if he is otherwise constitutionally eligible and there is no statutory impediment
Dipak Mishra, Lodha, Gobre
Court highlights the imp of demo- democratic polity
It is conceptually against corruption
Demo best defined as for and by the people expects orderliness, discipline, sanctity
Discusses concept of const morality, refers to the essence of the provs of the Constitution (what is
moral and immoral). Even in Triple Talaq judgment this doctrine is applied. It is the pillarstone of
justice
Discusses PUCL v UOI (2014)
held that demo and free elections part of the basic structure of const. Free and fair elections
would uphold growth of demo in the country . Defn of ‘fair’.
Discusses NOTA
Court does not really discuss any remedies in its judgment. It said to take the public for a ride.
No need to implead the cabinet ministers
Features absence of which erodes demo- one is holding free and fair elections (refers to Mohinder
Singh Gill case). Referred to Winston Churchill’s statement on democracy. Refers to Ragbir Singh
case. Imp of choice. It is his right and grasp. Act as responsible citizen in choosing his masters who
will govern the country. Court is not competent to add disqualifications in the language
Refers UOI v Asscn of Demo Reforms- money power, etc. Court mentions in affidavit reqd to lay
down money power, can give the voters the decision whether to vote for them or not. Court held that
voters also have right to know crim antecedents of the persons contesting as it is basic for survival of
demo.
Instructed ECI to ex power under Art (?) to lay down the req of the publishing of the trial status or
whether the person has been convicted, acquitted, etc. Education qualification was also claimed but
since const doesn’t disqualify on the basis of this, it is not a very mandatory factor.
42
Court talks of criminalization of pol. In Dinesh Trivedi v UOI had mentioned the faults and
imperfections impeded the country and identified corruption as one of the primary causes.
NN Vohra report- growth of criminalization of politics in India.
Deeply disturbing trends prevalent in our present society. Nexus b/w politicians and bureaucrats.
Adverse effects of this have been felt on various aspect of social life in India.
Anikul Chandra Pradhan v UOI- RP Act. Provs should be made to exclude person w criminal
background as those specified (reco by ECI). Court held that such provisions should be promoted
and will be welcome. It just observes that Parl should come up with such an amendment.
Several reports and committees that give similar suggestions (find these reports and committees)
- Goswami Report on Electoral Reforms
Suggested that after conviction, only after a period of 6 years can he get qualified again to stand for
elections.
Law Commission of India suggested (244th report) amendment to RPA and add s 8(b) for the
purposes of preventing criminalisation of politics. Certain electoral reforms, disqualification for
charge.
Court discusses corruption at high places. Prevention of Corruption Act, 1988 discussion.
Provs relating to disqualification of MPs and MLAs for the Leg. Council.
Art 102 talks about the various disqualifications (profit, unsound mind, acquired citizenship of for
state, allegiance or adherence to for state)
Art 173 and 191 (equivalent to 102).
S8- disqualification for conviction of certain offences
Rakesh Dwivedi is amicus curiae.
- It is the right of the citizen to be governed by min w no criminal antecedent
- Const obligation on part of PM to not recommend any person w criminal antecedent or facing crim
charge to Council. Choice of PM must be based on the const.
- PM enjoys discretion but has constitutional obligation to not recommend those people w criminal
antecedents
It is possible to lay implied limitations on the provisions and that is why the Court is mentioning the
above.
Referred to CAD. Argued const convention read into art 175(1)
Counsel for the petitioner has supplemented arguments of amicus curiae
SP Gupta v UOI- concept of PIL developed through a constitutional silence, relaxing locs standi as
art 32 is a fr. People who cannot approach the court, other people should be allowed to approach on
their behalf. Filling up of const gap
Refers to M.Nagaraj v UOI
Respondents claim that rule of law requires that you read art 175 in a manner….
- Rule of law an exclusive doctrine and cannot form the basis of the appt of a minister.
- w/o const prohibition or statutory bar no legal basis for disqualifying such member
- framers of const immense trust on the PM as seen from CAD.
- ASG on behalf of India- suggested doctrine of implied limitation not accepted in Keshavanda by
majority of the judges.
Courts interpret arts 74 and 75
K. Parasaran- Judiciary can’t encroach- P.M. is the sole repository of power
43
Third schedule prov
Doctrine of Implied Limitation:
Implied limitation- following the doctrine of constitutional limitations the doctrine of implied
limitation has been created
Amicus curiae suggested implied limitations doctrine; Justices Hegde an Mukherjee discussed
implied limitations.
Implied limitation on Parliament’s pow to legislate, Anwar Ali Sarkar: essential functions can’t
be delegated
Followed in Minerva Mills and I.R. Coelho
Petitioner says we should read an implied limitation on the pow of the PM when he is advising.
Court reqd to answer whether it can read a categorical prohibition to the words contained in 75(1)
so that PM is constitutionally prohibited to give advice to the Pres in respect of a person for
becoming a Min who is facing a criminal trial for a heinous and serious offence or charges of the
same has been levied against him
Court answered in the negative. When no express disqualification, difficult to interpret an
implied limitation into either art 75(1) or 164(1) on pow of PM or CM.
This amts to an eligibility criterion and effectively adding a disqualification, which has not been
specified in the Const.
Doctrine thus cannot be read in 75(1) or 164(1).
Doctrine of Constitutional Silence or Abeyance:
Whether the Court can read a disqualification to the already stipulated disqualifications provided
under the Const and the RPA, 1951
Progressive principle to fill gaps in public interest
D.K. Basu v W.B, Vishakha v Rajasthan; Bhanumati v UP, etc.
Court answered in the negative. It said that this would amount to crossing the boundaries of
judicial review.
If somewhere there is a const silence anywhere, then the const is interpreted in the light of the
Preamble.
Doctrine of Constitutional Implications:
Eg: right to privacy (Art 21)- Jogendar Kumar v State of U.P; Romesh Thapar v Madras
Whether the Court can apply this to the words ‘on the advice of the PM’ in Article 75(1),
indicating that the PM isn’t constitutionally allowed to advice the Pres to make a person w
criminal antecedents a Minister due to ‘sacrosanctity of the office and oath prescribed under the
Const’
Court states that it cannot be legitimately inferred that there is a prohibition for a person to be
seen a as Min if charges have been framed against him in respect of a heinous and serious crime,
including corruption cases under criminal law.
Constitutional Morality- institutional respectability and adoption of precautions for the sustenance of
constitutional values including reverence for the constitutional structure
Good governance- stressed need foe reverence of the Latin maxim salus populi suprema lex. Growth
of demo depended upon good governance. Citizens’ primary desire is that responsible persons carry
out their admin.
Good governance recognized but Court doesn’t give direction
CAD- Ambedkar opposed an amendment of K.T. Shah saying we have to lay trust in the PM.
44
Constitutional Trust- traced the origin of this to the CAD and stressed on the constitutional
responsibility of the PM being the effective head of the Govt and CoM.
- Must be envisaged in every high constitutional functionary
- PM regarded as repository of constitutional trust
- PM expected to act w constitutional responsibility to take forward values of demo and good
governance. Several things left unwritten by reposing such immense trust in PM
- PM must bear in mind that ‘unwarranted elements’ or persons facing crim charges may threaten
const morality or principles of good gov. Could possibly diminish const trust
- Legitimately expected of PM not to chose such persons w criminal antecedents
45
FREEDOM OF RELIGION- NOT THERE
Not absolute in nature
It is subsidiary to other FRs, if conflict b/w this and the other FRs, the others will prevail
There is a dist b/w freedom of cons. And freedom to profess and propagate religion
In present day profess isn’t that relevant, not spreading religion per se (propagate is spreading
religion)
Only essential or pure rel practices are protected by this clause, the secular practices can be regulated
Sabrimala Dispute- opening up of place for Hindus.
2 explanations in the Article
1) Sikh religion
2) Hindus wide reference
25 is the general right and 26 is specific to managing religious affairs
this isn’t restricted to a religious denomination per se, people from all religions can have the right to
est and maintain institutions for rel and charitable purposes, etc (given in article)
the individual and not the institution has the right, religion is a personal matter therefore right is that
of an individual
y) Revd. Stanislaus
Petitioner challenged 2 legislations- Orissa Freedom of Rel Act, 1967 and MP Dharma Swatantra Act
Challenge is that it treats forces conversions as an offense: if anyone converts someone by use of force,
fraud or allurement that is treated as fraud. Defn of fraud and allurement is treated as vague and that is the
basis of challenge, cannot define use of fraud or allurement to convert
Court examines nature of propagation- converting someone to our el is not part of this right, no need to
define fraud or allurement od conversion isn’t even a right under this article in the first place.
47
THE JUDICIARY
I. ORIGINAL JURISDICTION-CONTEMPT OF COURT
131, 132- original juris
142- CJI
129- Pow to contempt (court of record)
- determine juris
- punish for contempt (lowering judiciary in the eyes of the people)- civil and criminal
- Eg- non compliance wth directions
48
Test applied: Judges can be criticized but motives shouldn’t be attributed to the Judges as “it brings
the admin of justice into deep disrespect”
49
5. Act of publication w the effect of scandalizing the Court, attributing dishonesty to a Judge
and the discharge of his functions
6. Willful disobedience or non-compliance of the Court order
50
It is a valid question as to whether the Center has the right to dismiss the State Governments in the
way that it did.
It isn’t necessary for sttracting 131 that the plaintiff must assert a legal right in itself, it is sufficient
that the plaintiff questions the legal and constitutional right asserted by the defendant (in this case the
right to dismiss the govts)
The States have the necessary locus standi. In a federation, the States are interested in defining the
powers of the Central Govt, on the one hand, and their own, on the other.
51
jj) S.B.P and Co. v Patel Engineering Ltd
This was a special leave to appeal based on the order of the High Court which dismissed a writ
petition which challenged the appointment of Justice M.N. Chandurkar (Retd.) as the third arbitrator
in the case between the appellants and the respondent.
In this second case, the Court mentioned that there was no provision in case of a substitute arbitrator
or in case the arbitrator refused to arbitrate.
Furthermore, there was no provision in the arbitral agreement regarding the same either.
On the basis of these factors, the Court applied the case of Yashwith Constructions v. Simplex India
Piles Ltd., wherein it was held that a provision in the Arbitration Act cannot be read as filling an
omission unless the provision explicitly seeks to eliminate said omission.
Thus, the Special Leave for Appeal was allowed
Overruled Konkan Railway case
Held that power of appt is judicial and therefore susceptible to appeal under art 136
Considerations in appointing arbitrators
In this case it was held that an order passed by CJ of Judge of HC can be appealed to SC under 136.
However, order passed by CJI or Judge of SC, no appeal under 136
SLP can be dismissed w/o assigning reason- doesn’t mean lower court decision is correct
Art 141, curative petition. No time limitation on SLP
What is tribunal/quasi judicial
- to characterize whether it functions judicially or not
- There is a duty to act judicially
52
“tribunal” in 136 doesn’t necessarily mean a court but includes within it all adjudicatory bodies,
provided that they are constituted by the State and are invested with judicial as distinguished from
purely administrative or executive functions
53
mm) Gujarat Steel Tubes v Mazdoor Union
Arbitrator under s10A if Industrial Disputes Act can be regarded as ‘tribunal’ for the purposes of s11
of the same act
In this case, there was no prior enquiry conducted, so the tribunal had the duty to conduct and
enquiry of its own and on the basis of the evidences so gathered, decide not only whether a prima
facie case was made out, but also whether the charges have been made out.
Therefore, under Section 11-A of the Act that allowed for the tribunal’s jurisdiction, the tribunal was
allowed to conduct a de novo inquiry in order to determine guilt and punishment, and the arbitrator
had full authority to adjudicate.
Court has said that the arbitrator under s10A has power to bind even those who are not parties to the
reference and source of the force of the arbitrator’s award derives from the parent statute.
This ruling makes it possible to hold the arbitrator as a ‘tribunal’ for the purposes of article 136 as
well.
Arbitrator as he gives final decisions
Test:
1. Body constituted by state
2. State must invest it w judicial function
54
Consequently, judges of the Tribunals cannot be considered effective substitutes for the judges of a
superior court.
Similarly, the powers of the High Court under Articles 226 and 227, as well as the power of the
Supreme Court under Article 32 cannot be curtailed by a Tribunal established under Article 323A or
Article 323B. Both powers can co-exist, but not to the exclusion of the HCs and the SC.
The power of the HCs to exercise judicial superintendence over all lower courts and tribunals was
held to thus, be a basic feature of the Constitution that could not be done away with.
Thus, clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent that it excludes the
jurisdiction of the High Courts and the Supreme Court, are unconstitutional. The actual matter of the
cases was thus sent to a Division Bench for further adjudication.
oo) In re Berubari,
- gave timely guidance to the Central Gov as to how it should implememt the Indo-Pak boundary
agreement b/w the PMs of India and Pakistan. Had the agreement been implemented in the way the
govt was contemplating (through an Act of Parliament), great embarrassment would’ve been caused
had the Act been declared unconstitutional later as it was bound to be in the SC’s opinion.
55
- matter could not go to the SC on appeal as the UP Legislature would not invoke the Court’s
appellate jurisdiction after havin once taken the posn that courts have nothing to do w the
legislature’s power to commit a person for its contempt
- momentuous issues arisen- threatening the very basis of the Constitution solved due to the
reference
- Court also stated that 143 is of wide amplitude and empowers the President to forward to the SC
any question of public importance. Does not have to relate to matters in List 1 or List 3.
qq)In re Cauvery:
- Whether the Cauvery Water Disputes Tribunal est under the Inter-State Water Disputes Act, 1956,
has pow to grant an interim relief to the parties to the dispute.
- question was debated whther the SC’s opinion was binding on the President
- Court rfused to express any definitive opinion for two reasons:
1. the specific Q didn’t form a part of the Presdiential reference in the instant case
2. any opinion expressed by the Court would be advisory
56
a) Rupa Ashok Hura v A Hura
Q before the Court:
1. whether an aggrieved person is entitled to any relief against a final judgment/order of the
Supreme Court, after dismissal of the review petition, under Article 32 or otherwise.
2. whether a writ petition of certiorari could be entertained in one High Court, against the order of
another High Court, or in the Supreme Court, against the order of a High Court or a previous
Supreme Court order
- this is answered in the negative
3. validity of curative petitions. (more imp Q)
The situations may arise where, because of human fallibility, a rarest of rare case arrives wherein the
Court may have to consider reviewing its own decision and for this purpose, review jurisdiction of
the court has been granted under Article 137 itself.
This however, in the case of curative petitions, has to also be considered from the point of view that
a curative petition may be exercised in the form of a second review petition, even after the dismissal
of the first review petition.
derived from 142, entertained in violation of natural justice: abuse of power of Court
curative petition can be filed on strong grounds such as:
1. Violation of the principle of natural justice (right to be heard)
2. Biased judge
3. Abuse of the process of the Court
(above list isn’t exhaustive)
-While opening the channel of review, several conditions imposed:
1. grounds stated in the curative petition must have been stated earlier in the Review Petitions.
2. Cert. by Senior Lawyer of SC that above requirement have been fulfilled
3. Power of exemplary damage if at any stage of consideration the Bench holds that the petition is
w/o merit
4. Petition first to be circulated among the three senior-most judges and the judges who passed the
judgment complained of.
Review Petitions:
Article 137: Subject to parliamentary legislations, discovery of news and important matters.
A review petition is not appeal.
Specific reasons: A.R. Antulai v. R.S. Nayak;
CBI court, challenege against CM of Bombay under Prevention of Corruption Act, Bombay HC to
withdraw- violation of FR, court reviewed the matter and referred back. Article 14 and 21, arbit. and due
process.
petition of appeal cannot be taken as a review petition.
Petition of review had to be filed within 30 days etc (other reasons why the review petition wasn’t
the same as a petition for appeal)
57
wider than writ juris of SC under art 32
HC can issue orders
Not interfere w Special Courts
Not every dispute but if legal obligation not fulfilled
Writ of certiorari (quash) and Prohibition (stop)
Issued on practically similar grounds
Object of prohibition is prevention not cure,
Can issue both together: prohibition to prevent the proceedings from going on further and certiorari
to quash what has already been done by it.
In the absence of very cogent and strong reasons, the issuance of writ of prohibition is improper
The jurisdiction to issue certiorari is a supervisory jurisdiction and the HC/SC cannot act as an
appellate court while exercising it.
Certiorari can be issued under 226 to a court martial
proceeding of judicial- quasi judicial bodies
1. failure to exercise jurisdiction
2. Evidence not considered (findings are based on no evidence)
3. Unconstitutional order acted by SC (proceeds to act under a law which in itself is invalid,
ultra vires or unconstitutional.
4. Violation of the principle of N. justice
5. Acts in contravention of fundamental rights
6. Exercise of excess jurisdiction
7. Error of law apparent on the face of it
Mandamus
1. command to public authority to perform duty belonging to his office
2. where admin discretion is exercised illegally
3. eg: if tribunal omits to decide a matter it was supposed to decide it can be commanded to
determine the question which it has left undecided.
4. The object of mandamus is to prevent disorder from a failure of justice and is reqd to be
granted in all cases where law has est no specific remedy and where justice despite demanded
has not been granted.
5. It is a discretionary remedy and the HC has full discretion to refuse to issue the writ in
suitable cases
6. Conditions:
1. legal duty of public nature. The performance of this duty must be imperative and not
discretionary
2. Petitioner should have the right to the performance of the duty
- Not be issued against a pvt individual to enforce a pvt right such as a contract
3. Right sought to be enforced must be subsisting on the date of the petition
4. Writ of mandamus cannot be issued in anticipation of injury (as a general rule)
Quo Warranto
7. by what authority (he is holding that public office)
8. only in respect of a public office of substantive character. Eg where it cant be used-
questioning the appt of a college principal
58
9. no need of personal injury by petitioner or to seek redressal for any grievance
10. Court may oust a person from a office to which he isn’t entitled
11. appt of judges
Habeas Corpus:
12. To secure release of persons detained unlawfully or w/o legal justification.
13. Secures immediate determination of a person’s right to freedom.
14. Unlwaful in this context is that: a) not in accordance w the law b) procedure est by law hasn’t
been followed
15. The detention shouldn’t contravene art 22
16. Applicant must show a prima facie case of unlawful detention
17. Can examine the legality of the detention w/o requiring the detained person to appear before
it
18. Habeas corpus isn’t available to question the correctness of the decision of a legally
constituted Court of competent jurisdiction
19. even pvt persons
59
View of CJI didn’t have any primacy in the matter of appt of HC Judges, primacy lay w Central Govt
which could decide which could decide after consulting the various Constitutional functionaries but
not bound by the same
Thus gave literal meaning to the word ‘consultation’ in arts 124(2) and 217(1).
Primacy of CJI & collegium: concurrence.
Convention of appointing CJI
All India seniority for alleviating to SC
tt) Supreme Court Advocates –on-record Asscn v UOI (1993) (2nd Judges’ Case)
A public interest writ petition was filed in the SC by the Lawyers’ Association raising several issues
concerning the judges of the SC and the HCs. This petition was considered by a bench of nine
judges. ‘
The majority opinion, delivered by Justice J.S. Verma, answered the question pertaining to primacy
of the Chief Justice’s opinion by emphasizing that the question had to be considered in the context of
achieving the constitutional purpose of selecting the best suitable for composition of the Supreme
Court.
Referring to the consultative process envisaged under Article 124(2), the Court emphasized that this
procedure indicates that the Government does not enjoy primacy or absolute discretion in the matter
of appointment of Supreme Court judges.
The Court, when considering the position of the Chief Justice with respect to appointment of judges,
noted that the opinion of the Chief Justice should have the greatest weight, and that the selection
should be the result of a participatory consultative process in which the executive should have the
power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the
constitutional purpose.
The Court mentioned that the use of the word ‘consultation’ instead of ‘concurrence’ indicated that
absolute discretion was not to be given to any one, not even the CJI.
The Court further clarified that the primacy of the opinion of the Chief Justice of India meant the
primacy of his opinion in consultation with his senior colleagues who are required to be consulted by
him. Therefore, the meaning of “opinion of the Chief Justice” is reflective of the opinion of the
judiciary.
The Court laid down the following propositions pertaining to the appointment of judges of the
Supreme Court:
Initiation of the proposal for appointment of a Supreme Court judge must be by the Chief
Justice.
In exceptional cases alone, on disclosure of reasons as to why a person recommended was not
suitable for appointment, the recommendation made by the CJI may not be accepted.
However, if the stated reasons are not accepted by the CJI and other SC judges consulted, the
appointment should be made as a healthy convention.
No appointment of an SC judge can be made by the President unless it is in conformity with
the CJI’s final opinion formed in the aforementioned manner.
The advice given by the Council of Ministers in the matter of appointment of a SC judge, is
to be given in accordance with Article 124(2) as interpreted by the Supreme Court.
All consultation with everyone involved, including the judges, must be in writing as the
expression of opinion in writing is an inbuilt check and ensures due circumspection.
60
Appointment of the CJI ought to be the senior-most judge of the Supreme Court considered
fit to hold the office. Doubts about the fitness of a Supreme Court judge to hold the office of
CJI is what alone may permit a departure from the long-standing convention of appointing
the senior-most judge as the CJI.
Inter se seniority among HC judges and their combined seniority on an all India basis should
be given due weight when making appointments from HC judges to the Supreme Court.
Similar to the point about the SC, unless there is a reason to justify departure, order of
seniority must be maintained between them while making their SC appointment.
The main purpose was to reiterate the importance of minimalizing political influence in the judicial
process.
vv) Supreme Court Advocates –on-record Asscn v UOI (2016) (NJAC Judgment)
This decision arose because of an advisory opinion as demanded by the President under Article 143.
In this opinion, the SC has laid down certain clarifications in regard to appointment of SC judges.
In making his recommendation for appointment to the SC, the Chief Justice ought to consult
four senior-most puisne judges of the SC. Thus, the collegium to make recommendation for
appointment should consist of the Chief Justice and four senior-most judges.
61
The opinion of all members of the collegium in respect of each recommendation should be in
writing.
The view of the senior-most SC judge who hails from the HC where the person
recommended comes from must be obtained in writing for consideration by the collegium.
If a majority of the collegium is against the appointment of a particular person as a judge, the
appointment shall not be made. However, if even two judges of the Court express strong
views for good reasons, that they are against the appointment of a particular person, that
person should not be appointed.
The rule of seniority was now made subject to certain exceptions:
HC judge of outstanding merit can be appointed as a SC judge regardless of his
standing in the seniority list.
HC judge may be appointed as a SC judge for good reasons among other several
judges of equal merit, if for example, the region in which his parent HC is situated is
not represented on the Supreme Court Bench.
Thus, the responsibility of appointment was taken away from the Central Executive and placed in the
hands of a collegium of judges. The sphere of consultation was expanded, as the earlier consultation
was only of a collegium of the CJI and two senior-most judges of the SC.
Thus, this case formalized the process of appointment of judges to the SC as each judge’s opinion
was given equal value and had to be obtained in writing.
62
AMENDMENT POWERS (BEYOND KESHAVANDA
BHARATI)
A. Indira Nehru Gandhi v. Raj Narain [(1975) 2 SCC 159]
This case pertained to the Constitutional validity of clause 4 of the 39th Amendment of 1975.
This Amendment sought to do three things:
o To withdraw the election of the Prime Minister, President, Vice-President and Speaker of the
Lok Sabha from the scope of the original jurisdiction of the Supreme Court;
o To void the Allahabad HC decision declaring Indira Gandhi’s election to the Lok Sabha as
void;
o To exclude the Supreme Court’s jurisdiction to hear any appeal.
Clause 4 of this Amendment, which proposed the aforementioned points, was challenged as
destroying the basic feature of the Constitution insofar as it contained a gross interference with the
judicial process.
This was the first case in which the basic structure doctrine as had been propounded in the
Kesavananda Bharati case, had to be applied.
Clause 4 was held to be unconstitutional, and was regarded as violating three “essential features” of
the Constitution. According to MATTHEW J., the Amendment destroyed the basic feature of
resolution of election disputes by ascertaining the adjudicative facts and applying the law to
determine the real representative of the people. Thus, free and fair election in its true essence, was
violated.
CHANDRACHUD J. found that it further violated the principles of separation of powers, as a purely
judicial function was sought to be exercised by the Legislature. Also, he contended that equality of
status and opportunity, which was another essential feature, was violated as there was no rational
reason for creating a privileged regime for the election of the Prime Minister.
Furthermore, it was contended that the basic principle of natural justice in the form of audi alterem
partem was violated by this Amendment, as it gave no chance of hearing to the person challenging
the Prime Minister’s election.
It was held that democracy was a basic feature, and the retrospective application of the Amendment
as sought by the Legislature would sound the death knell of democratic structure.
RAY C.J. emphasized that the principle of rule of law was also violated, as even if judicial power was
exercised by the Legislature, it had to be for some purpose. KHANNA J. concurred and further
elaborated on the violation of democratic principles of free and fair elections.
Another question which emerged from this case was whether it was only constitutional amendments
which were subject to the restriction of the basic structure doctrine or whether ordinary legislation
was as well.
CHANDRACHUD J. explained this by saying that constitutional amendments were of a higher status
and had to be judged against the backdrop of basic features of the Constitution. But for ordinary
legislation, it had to only be tested against the competence of the legislature enacting the said
legislation. If the basic structure doctrine was applied to all legislation, it would denude the power of
Parliament and State Legislatures to enact any laws.
63
The judges here also held that judicial review was not a basic feature and an amendment could
exclude judicial review, and this was also true for the principles embodied under Articles 14, 15 and
16. Both these propositions are however, overruled and judicial review and equality are basic
features of the Constitution.
64
31A, 31B and 31C were also challenged on the ground of damaging the basic structure of the
Constitution.
The Court, reiterating the judgment in the Kesavananda case, ruled that the First and Fourth
Amendment Acts in 1951 and 1955 did not damage th basic structure of the Constitution and were
valid. The First Amendment introduced Article 31A and Article 31B, while the Fourth Amendment
amended the First.
Article 31A obliterates Article 14, 19 and 31 completely for laws coming under its scope. In th9is
regard, the Court stated that if Article 31A was not enacted, then some of the main purposes of the
Constitution would have been delayed and invariably denied and that the Constitutional edifice was
actually strengthened by the Amendment.
Article 31B contained a device for saving laws from challenge on the ground of violation of
Fundamental Rights, and had to be read along with the IX Schedule.
Article 31B was held to be a constitutional device to protect State laws from being declared void
under Article 13(2), and Parliament was empowered to insert a State law into Schedule IX via
Amendment through Article 368.
All Schedule IX laws were to now receive complete Article 31B protection, but the Constitutional
amendments through which the additions were made to the IX Schedule after the Kesavananda case
were to be valid only if they did not damage the basic structure of the Constitution. There was no
ipso facto protection to these laws.
Article 31C was held valid to the extent that it had been declared valid in the Kesavananda case.
65
When the Minerva Mills case held that the golden triangle, as propounded in the Maneka Gandhi
case, was part of the basic structure doctrine, the corollary was that Article 31B laws could not be
excluded from judicial review.
The Court thus held that basic rights such as secularism, rule of law and equality, basic tenets on the
basis of which the Constitution was formed, could not be abrogated through the insertion of laws into
Schedule IX to completely absolve the Parliament from making these laws consistent with
Fundamental rights.
By conferring itself with this power, it was held that Parliament was going beyond the Constitution
and the Parliament was surrounded by limitations as Constituent power needed a system of checks
and balances to function in consonance with principles of Constitutionalism and rule of law.
Since the Amendment power under Article 368 could not be made unlimited, it followed that Article
31B could not confer unlimited power and consequently, the necessity of the judiciary in this regard
is undeniable and basic. Judicial review was held to be part of the basic structure of the Constitution.
The ‘essence of rights test’ as evolved in the M. Nagaraj case was not enough to deal with the
question of basic structure, as in this case, it allowed for Part III, in its entirety to be excluded.
The ‘rights test’, which said that the actual content of the right had to be looked into and not just the
principle behind the right, was the right test to be applied when deciding how to apply the basic
structure doctrine in this case, where the scope of Article 32, Equality Code and Freedom Code was
being taken away through a single stroke.
66
TAXATION POWERS: TRADE AND COMMERCE AND
INTERCOURSE
B. Atiabari Tea Co. v. State of Assam [(1961) 1 SCR 809]
The constitutionality of the Assam Taxation (On Goods Carried by Roads or Inland Waterways) Act
was challenged in this case.
It appears that the appellants are growers of tea in West Bengal or in Assam and carry their tea to the
market in Calcutta from where the tea is sold for consumption in the country or is exported for sale
out of the country.
The Act was passed by the Assam Legislature and by virtue of this Act, there was a tax levied on the
goods which were transported by road or through inland waterways in the State of Assam. While the
appellants paid the tax, the same was challenged under Article 226 before the Assam HC who
dismissed their writ petition.
The primary question in this case pertains as to whether the impugned Act violate the provisions
under Part XIII of the Constitution, which constitute Trade, Commerce and Intercourse.
The Court in this case, held that taxation simpliciter is not within the terms of Article 301.
In this regard, the initial Section 297 of the GOI Act, 1935 was also discussed. Furthermore, the
power of taxation as envisaged under the Union List under Entries 30 and 89. However, taxes on
goods and passengers carried by road or by inland waterways covered under Entry 56 of List II.
Parts XII and XIII supposed to be self-contained in their respective fields.
The comprehensive and inclusive sense of freedom of trade, commerce and intercourse as being free
from taxation was pointed out by the appellants, and the Court rejected this, maintaining the stance
that it is impossible to think that the framers intended absolutism in free trade, to the extent that it
would be absolutely free of any taxation whatsoever.
Taxation is discussed in this case not necessarily as a restriction, but as a wherewithal to improve the
conditions of the roads or waterways the tax in the present case sought to impose tax on.
The arguments in favour of taxation were:
o Taxation implies it necessarily being in public interest;
o The power to govern is vested in the government and in governance, taxation needs to
perhaps be imposed on a wider array of fields, and the entries in the three legislative lists
would be redundant if taxation simpliciter was within the ambit of Article 301.
o If the appellants’ arguments accepted, then every tax would have to go through the gamut of
Article 303 and 304, and this would retract from the limited state sovereignty as envisaged by
the Indian Constitution.
o Taxes would become justiciable and the Legislature would have to satisfy the Courts
regarding every tax, a course that would affect the division of powers and which was sought
to be prohibited in India.
o Taxation on movement of goods and passengers is not necessarily an impediment.
Article 301 only sought to crease out customs or practices which were necessarily impediments to
free flow of trade and commerce. Article 304, while recognizing the power of a State to tax,
necessarily requires that the goods taxed be manufactured or produced within the State.
67
On a fair construction of the provisions in Part XIII, there were certain points made out by the Court:
o Trade, commerce and intercourse was not absolutely free, and was subject to taxation by
Parliament or State Legislatures;
o Freedom under Article 301 does not mean freedom from taxation simpliciter, but it does
mean freedom from any tax which would necessarily impede the free flow of trade in the
State;
o The freedom envisaged in Article 301 is subject to non-discriminatory restrictions imposed
by Parliament or State Legislatures (Article 302);
o In cases of emergency or scarcity, even discriminatory taxation may be made by the
Parliament or State Legislatures (Article 303(2));
o Reasonable restrictions may be imposed by State Legislatures in public interest (Article
304(b));
o Non-discriminatory taxes may be imposed on goods coming in from other States, if similar
taxes are imposed on goods manufactured or produced within the State (Article 304(a));
o Restrictions imposed by existing laws have continued, insofar as the President has not
directed otherwise (Article 305);
The argument of discrimination was also made, as it was only tea carried in chests and jute carried in
bales which were taxed. To this, the Court replies that the Court’s position was not to explain to the
Legislature any alternative methodology or any form or variety of tax that was to be imposed. This
was entirely at the Legislature’s discretion.
THE MAJORITY DECISION: Beyond paragraph 26.
The majority however, maintained the positivist stance that Article 301 had a non obstante clause,
which read, “Subject to the other provisions of this part, there shall be free flow of trade, commerce
and intercourse throughout the territory of India.” And thus the majority maintained that it was only
to the other provisions of Part XIII that Article 301 was subject.
Part XII restrictions could not be said to be included within the ambit of Articles which could restrict
free trade and commerce.
Article 302 allows for the Parliament to impose restrictions on inter-State trade, commerce and
intercourse along with intra-State trade, commerce and intercourse. Article 302 was read as an
exception to Article 301, in the sense that it allowed for restrictions in case it was necessary in public
interest.
Article 303(1) was then referred to, which prohibited Parliament from making any discriminatory
law preferring one State which would hamper the flow of free trade. Article 303(2) is the exception,
in and how it allows for discriminatory treatment in case of scarcity of certain goods or in case of
emergency.
It is urged that Article 303(1) explicitly makes references to the Entries in the Seventh Schedule
which refer to trade and commerce, indirectly providing the scope of Article 301 itself as being
restricted to those Entries alone.
Article 304(a) provides that foreign State goods be treated the same way that intra-State goods are.
Furthermore, Article 304(b) provides the manner of said treatment. Thus, Article 304 is treated as
another exception to Article 301.
Three conditions when passing an Act under Article 304(b):
o Prior sanction of the President;
68
o The Legislation must be in public interest;
o The Legislation must impose restrictions which are reasonable;
The general agreement therefore is that taxing laws do come under the ambit of Article 301, but it is
also agreed that it is only those taxes which directly and immediately impede the free flow of trade
and commerce which come under the ambit of this Part.
Legislations under Entry 56, List II were held to be subject to the provisions of Part XIII.
The Act was thus held to have directly violated free trade and commerce, and as it did not comply
with Article 304(b), it was held to be void and unconstitutional.
G. Automobile Transport Ltd. v. State of Rajasthan and Ors. [(1963) 1 SCR 491]
In this case, the Court which was of a larger Bench as compared to the Atiabari Tea Co. case, agreed
with the earlier judgment, hereby making one clarification that regulatory measures or compensatory
taxes would not come under the purview of Article 301.
In the present case, the Motor Vehicles Tax in Rajasthan which was the tax so challenged, was
upheld as it was of the nature of a compensatory tax and thus, not subject to the Part XIII restrictions.
Justice Subba Rao, in his part of the judgment, concurred with Justice Das, who gave the first part of
the judgment. To summarize his points:
o Article 301 declares a right of free movement of trade without any obstructions by way of
barriers, inter-State or intra-State, or other impediments operating as such barriers.
o The said freedom is not impeded, but, on the other hand, promoted, by regulations creating
conditions for the free movement of trade, such as, police regulations, provision for services,
maintenance of roads, provision for aerodromes, wharfs etc., with or without compensation.
o Parliament may by law impose restrictions on such freedom in the public interest; and the
said law can be made by virtue of any entry with respect whereof Parliament has power to
make a law.
o The State also, in exercise of its legislative power, may impose similar restrictions, subject to
the two conditions laid down in Article 304(b) and subject to the proviso mentioned therein.
o Neither Parliament nor the State Legislature can make a law giving preference to one State
over another or making discrimination between one State and another, by virtue of any entry
in the Lists, infringing the said freedom.
o This ban is lifted in the case of Parliament for the purpose of dealing with situations arising
out of scarcity of goods in any part of the territory of India and also in the case of a State
under Article 304(b), subject to the conditions mentioned therein. And
o The State can impose a non-discriminatory tax on goods imported from other States or the
Union territory to which similar goods manufactured or produced in that State are subject.
On the basis of these reasons, the appeal was dismissed in this case and the tax, being of a
compensatory nature, was upheld.
69
Respondent filed a petition under Article 226 contending that the provisos added to allow this
regulation was in violation of the freedom of trade, commerce and intercourse under Article 301.
Article 304 not applied in this case, as it was a pre-constitutional executive order that led to these
rules, and it was thus, a case wherein the enactment of the two provisos clearly affects the flow of
trade, commerce and intercourse within the territory of India.
On this basis and applying the Automobile Transport Co. case, the appeal was dismissed and the
regulations were held to be invalid.
70
EMERGENCY PROVISIONS
I. NATIONAL EMERGENCY
Art 352- but needs approval from Parl. Review of emergency proclamation is possible
Article 19 cannot be suspended during an emergency (article 359)
Review comes from S.R. Bommai
However, later, 48th and 54th Amendment- Arts 20 and 21 is not suspended during emergency
Puttaswamy- expressly overruled ADM Jabalpur
Difference of degree b/w internal disturbance, external aggression and armed rebellion. Here 44 th
Amendment removed ‘internal aggression’ because of the acts of Indira Gandhi
National emergency can be restricted to part of India where border threat or secession threat
Advise rendered to the President cannot be reviewed but the material on which the advise was given
can be reviewed
Advise of whole CoM not just the PM
Emergency can be invoked at any time and it ceases to expire after one month if not approved by LS
and RS (majority of number of House, 2/3rd members present and voting)
Emergency of 1 year can be extended by 6 months by subsequent motion it can be extended by 6
months
If House reject, then if disapproved by LS, immediate removal
- disapproved by RS then expires after 1 month
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When emergency then:
- exec power of Union extended to States
- peace time distribution of legislative powers is suspended. State Legislatures continue to function
as usual and may make any law in their assigned area but Parl becomes empowered to legislate
even in the assigned State sphere. Such law comes to an end to the ectent of the emergency
- Juris of HC and SC cannot be taken away
- Center has pow to issue directions to states (Art 256, Art 257 read w Art 355)- this makes the
directions binding
- Leg made during emergency, valid for 6 months post the emergency. (can be extended by one
year at a time)
- Enforcement of fundamental rights are suspended (not the rights as such) except for articles 19-
21.
- Officers under states can be controlled. To parts where emergency not exercised, control can be
exercised.
- Art 354 can alter financial distribution, allow for redistribution of net proceeds- Art 279
Has to be laid before LS and RS
- If financial year ends, charged management also ends.
- Can levy tax which ordinarily falls under State List
Art 358 suspends Art 19, Art 352 suspends remedies
Art 355 imposes duty to Union to protect states. Read w Art 256, 257
38th Am- barred judicial review of proclamation of emergency It also barred judicial review of
overlapping emergency proclamations, or ordinances promulgated by the President or by governors,
and of laws enacted during emergencies that contravened Fundamental Rights
44th Am- repealed 38th
Changed due to Justice Bhagwati in Minerva Mills case: in proclaiming emergency, whether the
President had applied his mind or acted unconst or in a mala fide way, the mergency couldn’t be
excluded from the scope of judicial review.
Manifest arbitrariness is a ground for unconstitutionality
Subjective as decision must be left to Executive. Wide range of situations, correctness or adequacy
of facts cannot be looked into by the Court
Satisfaction of the President is condition of President precedent to Art 352
Gov. report not necessary for State Emergency
Notwithstanding art 352(5), review on some grounds still possible
- Court may issue mandamus to Center to revoke the Emergency if mala fide shown. But the onus
on showing the mala fide is very high.
ADITYA’S :
C. A.D.M. Jabalpur v. Shivkant Shukla [(1976) 2 SCC 521] [OVERRULED]
In this case, the validity of the 38th and 39th Amendments was challenged before the Court, the
proclamation of emergency on June 25th, 1975 and the validity of the arrests made after that date.
The State raised a preliminary objection that under Article 359, the enforcement of fundamental
rights could not take place in an emergency and Articles 14, 21 and 22 and by virtue of Article 358,
Article 19 rights had been expressly suspended, and there was a bar on the respondents in seeking a
writ under Article 226 of the Constitution.
As per Ray CJ, in periods of public danger or apprehension the protective law which gives security
and confidence to every man in times of tranquility, has to give way to the interests of the State.
The Courts held that adjudicating the competency, gravity or necessity of suspension of rights during
an emergency was a right which the Court could not comprehend and hence, could not adjudicate
upon.
He further opined that the law was the positive, State-made law and it had to have some firmness.
Furthermore, he held that liberty was confined and controlled by law, and that it was a regulated
freedom.
As per Beg J, the matters as to national emergency, national security were matters which were of
exclusive legislative competence. Furthermore, he held that suspension could not mean retention
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under disguise, and if the fundamental law of the land sought the rights to be declared suspended,
they had to be so.
With respect to Articles 21 and 22, he mentioned that if the right to “move any court” under Article
359 had been suspended, then the intention was clearly to ensure that the enforcement of rights, even
those rights under Article 21, was suspended.
He held that the habeas corpus petition could not be entertained, as the locus standi of the person had
been suspended.
Furthermore, he sought to mention that Article 21 was the sole repository of personal freedom and
even if not so, the others were Articles 19 and 22, all of which stood suspended in light of Article
359.
Lastly, he mentioned that Fundamental Rights were mere enunciations of the natural rights, and that
they were not natural rights guaranteed itself, thus making them susceptible to suspension.
Chandrachud J. mentioned that by the suspension of Articles 14, 19, 21 and clauses (4) to (7) of
Article 22, there was a serious inroad on the exercise of personal freedom and this serious inroad,
which allows for detention without trial, now bore the sanction of the Constitution itself.
Thus, the appeal was allowed.
NOTE: This case was only expressly overruled in the K.S. Puttaswamy judgment in 2017.
J. State of Rajasthan v. Union of India [AIR 1977 SC 1361]
After the general elections in 1977, the Janata Dal government came into power at the Centre and the
Congress was badly routed in a number of States.
The Central Home Minister sent a letter to these States, asking them to seek dissolution from the
Governor and obtain fresh mandates from the electorate. The State of Rajasthan, along with several
other States, filed a case which was heard by the Supreme Court in its original jurisdiction under
Article 131.
It was argued that the letter in question was a prelude to the invocation of Article 356 and that in
substance, the ground on the basis of which the emergency was sought to be imposed was prima
facie outside the purview of Article 356. In substance thus, the suit was design to forestall the
invocation of Article 356 in those States.
The Supreme Court unanimously dismissed the suit, on the grounds that it could not interfere with
the Centre’s exercise of power on the ground that it embraced ‘political and executive policy and
expediency’, unless a constitutional provision was being infringed. Article 74(2) disabled the Court
from doing so. Article 356(5) further made it impossible for the Courts to inquire into the same.
Bhagwati J. emphasized that the satisfaction of the President under Article 356 was subjective and
could not be tested through objective tests or judicially discoverable and manageable standards.
In the instant case, the Court held that the possibility of the governments having lost majority could
not be ruled out, and thus continuing those governments would be purely “undemocratic in
character.”
The highlight of the decision itself however, was in how in spite of the broad ambit of Article 356
power, a presidential proclamation could be challenged if it was mala fide, or on constitutionally or
legally prohibited grounds.
K. S.R. Bommai v. Union of India [(1994) 3 SCC 1]
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In 1989, when a number of ministers of the Janata Dal Ministry, headed by Shri. S.R. Bommai,
defected from the party, the government’s majority was in question. Here, the Chief Minister
proposed the conducting of a floor test but the Governor ignored this suggestion.
The possibility of an alternate government was also ignored, and President’s Rule under Article 356
was declared, as there remained no majority of the party in the government.
When the validity of this proclamation was challenged before the Karnataka HC, it held that the
proclamation was not free from judicial scrutiny, and that the scope of judicial scrutiny was to
examine whether the disclosed reasons bear any rational nexus to the action proposed or the
proclamation issued.
However, it held that:
1. The Governor’s report was not held to be irrelevant, Governor’s bona fides were not
questioned and his satisfaction was based on reasonable assessment of facts.
2. Furthermore, it held that recourse to the floor test was neither compulsory nor obligatory as a
pre-requisite to sending the report to the President.
Similar proclamations were issued in Meghalaya and Nagaland and in the wake of the Babri Masjid
demolition, in Madhya Pradesh, Himachal Pradesh and Rajasthan, as the governments of these states
were of the BJP, who had come off as sympathetic to the organizations responsible for the
demolition.
The M.P. High Court even declared the emergency imposition invalid, and this was unprecedented as
no emergency had been invalidated before. Thus, these matters were all clubbed and brought before
the SC.
On the basis of the consensus among the judges, certain points can be noted in relation to Article
356(1) and the scope of judicial review thereunder:
1. The President here exercises his power of state emergency on the aid and advice of the
Council of Ministers.
2. The floor test was compulsory and the question of majority had to be decided on the floor of
the House and not in the Governor’s Chamber. In this regard, the Karnataka HC was
overruled.
3. The Governor should explore the possibility of installing an alternative ministry, when the
erstwhile ministry loses support in the House.
4. The validity of the proclamation is justiciable on the grounds as:
Whether it was issued on the basis of any material at all.
Whether the material was relevant.
Whether there was mala fide exercise of power.
Whether it was based on wholly extraneous or irrelevant grounds.
5. The material had to be of such nature so as to lead a reasonable man to believe that the
Government of the State cannot be carried out in accordance with the Constitution. On
existence of such material, the satisfaction of the President is not open to question.
6. When a prima facie case against the proclamation is made out, it is the burden of the Central
Government to prove the existence of relevant material warranting the proclamation.
7. The dissolution of the Legislative Assembly in case of a proclamation is not a necessary
consequence of the proclamation, the Assembly need only be dissolved when it is found to be
necessary to achieve the purpose of the proclamation.
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8. Article 356(3) is a check on Article 356(1), as how the proclamation has to be approved by
Parliament within two months, and the President ought not to take any irreversible action till
the emergency proclamation is approved by both Houses of Parliament. Thereby, the
Assembly does not need to be dissolved and if done so, it would be per se invalid.
9. Once the proclamation is approved by Parliament, and it lapses at the end of six months or is
revoked, neither the dismissed State Government nor the dismissed State Assembly if
dissolved, will revive.
10. If the Court invalidates the proclamation, even if approved by the President, it becomes
invalid and the State Government and State Assembly are restored.
11. Article 74(2) bars inquiry into what advice was tendered by the ministers to the President, but
it does not bar inquiry into the material that led to said advice being tendered to the President.
Even if the material is shown, it does not partake into the character of advice.
Applying these principles, the Karnataka, Meghalaya and Nagaland proclamations were invalidated.
The Bommai case was celebrated as a marvel in judicial creativity, in and how it promoted several
basic features of the Constitution, such as parliamentary system, federalism, checks as well as checks
and balances. Furthermore, it promoted the multiplicity of ideologies, a facet India had adopted by
being a pluralist democracy.
Political ideology thus, did not prevail over how different parties could prevail at the Centre and in
the States.
The application of this case can be seen in Rameshwar Prasad v. Union of India (2006)2 SCC 1, [p
729 MP Jain]
I. Financial Relations
D. Mafatlal Industries v. Union of India [(1997) 5 SCC 536]
In this case, where there was excess tax payable under the Central Excise Act, the Supreme Court
held that in case of Excise Duty, the burden of tax was shifted from the taxpayer.
In such a case, if the taxpayer has already reimbursed himself through the shift of tax burden, then
the court may also refuse refund of tax.
Similarly, in B.R. Metals v. Union of India, no refund was granted where there was excess levy of
Customs Duty.
L. Commissioner, Hindu Religious Endowments v. L.T. Swamiar [AIR 1954 SC 282]
In this case, a tax was levied under Entry 28, List III on the Hindu Charitable Trusts based on the
Hindu Charitable Trusts, 1951.
The question in this case pertained to whether the said tax was in fact, a tax or a fee imposed, as this
institution, the Hindu Religious Endowments Trusts, did not have the authority to demand tax.
The argument was that it was tax, simply because the money so put in was not used for the sole
purpose of maintenance of the religious endowments.
Tax was herein defined as a compulsory exaction of money by public authority for public purposes
enforceable by law, and it is not payment for services rendered.
Fees as such, were defined as a special charge rendered to individuals for a service provided by a
government agency.
Taxes and fees were herein differentiated, as tax was levied for a common burden, but fees were
levied for a special privilege.
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The Court referred to the Australian case of Matthew v. Sugary Marketing Board, to further describe
how compulsion was the essence of tax and that it is statutory power exercised without taxpayer
consent.
Furthermore, the imposition of tax for public purpose was described, and further supplemented with
how no reference as to what the public purpose was, had to be made. Furthermore, there was no
element of quid pro quo between the taxpayer and public authority.
Another differentiating factor was that the fees are uniform but taxes were differentiable, based on
social strata.
Fees always showed a direct relationship between the fee and the benefit, but this was not true in
case of tax. Furthermore, specific tax grants can be made under Article 282 for public purposes.
M. International Airport Authority v. Delhi Municipal Coroporation [AIR 1991 Del. 302]
The International Airport Authority of India is its own juristic entity, constituted by the International
Airports Authority Act, 1971. It had its own property, fund and employees.
In this case, it was held that it was a statutory corporation distinct from the Central Government and
accordingly, the property vested in the authority was subject to municipal taxation.
The authority could not avail of tax immunity created by Article 285(1) of the Constitution.
N. New Delhi Municipal Committee v. State of Punjab [AIR 1997 SC 2847]
The question in this case pertained to whether the property of the States situated in the Union
Territory of Delhi would be exempt from taxation by the Delhi Municipality because of Article
289(1).
A nine-judge bench of the Supreme Court held in the affirmative. The term “Union taxation” under
Article 289 was held to be inclusive of taxes by the New Delhi Municipality.
The Court argued that Union Territories were directly under the control of the Union, and there was
no distribution of powers with respect to Union Territories. Therefore, “Union Taxation” had to
include municipal taxes levied by municipalities in the Union Territories, and it had to be given the
widest amplitude meaning.
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