CONSTITUTIONAL LAW I

CONSTITUTIONALISM
- Constitutionalism’s crux is that constitution reigns supreme.
- ‘Raja Dharma’- Even if the govt. is sovereign, you do not enjoy absolute supremacy.
You have to adhere to certain basic guidelines. This is basically Constitutionalism
- Basic Structure is based on this principle
- Sometimes, even rules/laws passed by the SC becomes part of Constitutionalism if
within reasonable limits. Example: Vishakha Guidelines

- Shankari Prasad Case

- Right to property, 1st Amendment and the 9th Schedule

- SC put forward two questions

- 1. Is an amendment a law?

- 2. Can the parliament amend the fundamental rights?

- Art 13 of Constitution becomes important

- If amendment is law, Art 13 would apply on an amendment too

- Hence, it is important to determine whether an amendment is a law.

- Art 31 A and B and 9th schedule prevented any laws to be brought under Judicial
review. (Only those which are placed inside the 9th Schedule)

- Patajali Shastri of SC says amendment is not law

- He creates a distinction between parliament powers

- Legislative powers to make new laws

- But Constitutional amendment is exercise of constituent power which is different

from Legislative powers.

- While exercising Constituent power, they basically step into the shoes of the
constituent assemble. Hence, it is different from Legislative powers
- On question 2, amendment can contravene FRs since Art 13 won’t apply.

- It basically gave unlimited powers to Parliament to amend the constitution

- In 1954, three cases from Calcutta and Bombay came out challenging various land
reforms law.

- State of WB v Bela Banerjee

- State of WB v Subodh Gopal Bose

- Dwarkadas Srinivas v. Sholapur Spinning Company

- Issues were similar

- State had acquired land and given compensation

- Argument about the amount being insufficient

- Challenged amount of compensation and not the act itself

- SC said the amount was disproportionate

- 1955- 4th constitutional amendment is passed

- It extends 31A- all social welfare legislation beyond judicial review

- Inserts 31(2)- Distinction between compulsory acquisition of property and deprivation

of property due to functioning of regulatory laws

- Compulsory acquisition of land means acquisition of land for any government

requirement (like building a road). In this circumstance, the person may not be rich
and it is not done as a result of land reforms and hence in such circumstances, this
person will be paid compensation however it will be non-justiciable

- Deprivation of property due to functioning of regulatory laws is land acquired due to

land reforms. In this situation, no compensation will be paid to you.

- 17th Constitutional Amendment was challenged by Sajjan Singh and subsequently

challenged the 4th and 1st amendment in 1964
- Sajjan Singh case had a 5 judge bench

- In this case, there was three separate opinions

- Majority opinion by Gajendra J. was basically a copy of Shankari Prasad

- Opinion of Hidayatullah J. raised a question: What do you mean by an amendment? If

amendment means a deletion, can you also delete a fundamental right?

- Opinion of Mudholker J. says Constitution has certain basic features.(For the first
time) If parliament has unlimited amending powers, can they take away even the basic
features of Constitution?

- 1967, Lal Bahadur Shastri passed away. Congress chose Indira Gandhi.

- ’67 the CJI was Subha Rao J. Known for his dissenting opinions.

- Subha Rao J. set a 11 judge bench to look into Sajjan singh issues in IC Golakhnath
Case.

- Golaknath issues similar to Shankari prasad and Sajjan Singh.

- Divided into 6-5.

- Subha Rao J. decision:

- He dismantles Patanjali’s distinction between between constituent and legislative

powers. He argues where do we find the mention of “constituent” power? Back then
Art 368 had only sub section 2. No mention of power to amend constitution but only
process to amend the constitution.

- Subha Rao J. says Art 245 and Art 246 defines powers and extent of powers

- Art 248 and Entry 97 of Union list, if there are subject matters not found in any list,
the parliament has the power to do so.

- He states amendments are laws. This is because there is no constituent powers but just
legislative powers
 - If amendments are laws, it logically follows that it is bound by Art 13 which means
the Parliament has limited amending powers

- Doctrine of prospective overruling. Even though previous works were

unconstitutional, the unconstitutionality would apply from the present moment. This
allowed the judgement to be practical as it didn’t require the government to give back
the million hectares of land and projects that they had done.

- Nath Pai of SSP introduced a private members’ bill in 1967 to overrule Golakhnath

- Indira Gandhi- wanted to nationalize banks and wanted to ban Privy Purses (Art 291)

- She made the president sign an executive order by the pres. under Art 366(22) to
derecognize the princely states

- Both these policies were challenged in SC

- Bank Nationalisation case: RC Cooper v. UOI

- Privy purse case: Madhav Rao Scindhia v UOI

- 11 judge bench declared both these policies as unconstitutional

- As a result, Indira Gandhi dissolved lok sabh prematurely and called for fresh election

- She called for “Garibi Hatao”

- She wins ’71 with a huge majority

- Brings 4 consti amendment in 1 year.

1971
1. Asked president to prematurely dissolve LS and have fresh elections
2. To get a better majority
3. Election- Garibi Hato
4. She won with a majority, now she can amend
5. Back to power with humongous majority
6. She said she will make these changes through constitutional changes, so she had their
mandate
7. Within 1 year, 4 different constitutional amendments

Ammendments
24th ammendment
• article 368 changed
• changes short title- power to amend the constitution
• Article 368(1)- parliament in exercise of its constituent power may variation, repeal
and add provisions- reiforce patanjali shashtri. Making absolutely sure that there is
constituent powers. Concerns of hidyatullah now exist again.
• Dismantling Golak Nath judgement
• Article 368(3)- under this, it would not be a law- same question of whether
amendment is law or not- safety valve, double lock

25th Ammendment
1. Article 31(2)- distinction between compulosry acquisition, some amount vs no
amount based on case
2. Word compensation replaced with amount
3. RC Cooper- shares taken away compulsorily
4. SC had power- compensation expects proportionality, to compensate
5. Amount is neutral, benign, no link to loss suffered

Introduced article 31C

1. any law which has been passed by the parliament in pursuance of 39(b) and 39(c)-
DPSP- socialist policies , cannot be called for question in court for 14, 21,
31(property)
2. No court can question such a law, which means we can know its been passed in
pursuance of DPSP, unlimited power to do anything- just say ki hai

26th
Abolished privy purses

29th
1. Put laws into the 9th schedule
2. Kerela land reforms law
3. Kesavananda bharti lost property, challenged
CONTEXT
1. Committed judiciary- put her own judges
2. Has peoples mandate
3. Max popularity- pakistan, bangladesh
4. Numbers in parliament

DIETER CONDRAD
1. What if someone changes something major in your constitution
2. Destroy the consti, are we protected?
3. Affected Palkiwala

KESAVANANDA BHARTI
This judgement officiates constitutionalism
Camp 1- Parliament has unlimited power
• Constituent power
• Therefore they have unlimited power
• Patanjali shastri
Camp 2- Limited power to amend
Golak Nath is rubbish- 6 judges
• Golak Nath is not right
• After 24th ammendment, there was constituent power, they weren’t comfortable
declaring in unconstitutional
• Constition ammending power is constituent power not legislative powers
• There are limitations on this power
• The limitations come from the word “ammendment”
• Amendment does not allow a destruction/ obliteration
• Cannot exercise constituent powers in such a way that Basic features/fundamental
features are destroyed
• Basic features- Fundamental rights
• U can make any amendments to the constitution as long as you don’t change basic
features

LISTS
Sikri
• Supremacy of consti
• Republican and democratic
• Secular character of the constitution
• Seperation of powers
• Federal character of consti
• Dignity of the individual(mostly fundamental rights)

Shelet and grover

• Sovereingty
• Unity of India
• Integrity of India
• Dignity
• Welfare mandate

Hegde plus
• Same list as shelet and grover
• They answer the question- where do u find the basic features from?
• Fundamental features
• They are found in the preamble
• Preamble is so important that u find the fundamental features from the preamble
•

Preamble to the constitution is part of the law, passed in the same manner as all other laws

Jaganmohan Reddy
• List is illustrative
• Similar to sikri list
• Sovereign, democratic republic
• Parliamentary democracy
• The 3 organs of the state
• Cannot ever obliterate
•
 - Fallacies in Subha Rao J in Golakhnath
- Some consti amendments require State’s ratification. If that is the position of Art 368,
it is not possible for the power to amend the power to constitution comes from the
Union list. It indicates an inherent contradiction(Entry 97, Union List)(I)
- This is another fallacy with Golakhnath
- Consti uses Law and Constitution used differently. Clear distinction. To say,
amending constitution and law is same will be undermining the constitution.
- (II)
- Art 245 is subject to provisions of constitution. You cannot amend consti while being
subject to it(III)

Khana J:
- Constitution embodiment of people’s will
- Sovereign is people and not parliament
- Parliament can upgrade and safeguard the constitution
- But cannot destroy the constitution
- Amendment is different from demolishing
- Committing Constitutional “Harariki”
- Thus, a parliament is not allowed to destroy the “basic structure” of the constitution
- Basic features v Basic structure
- Features are specific ingredients but structure is more of an abstract concepts
- Gives unrestricted power to judiciary
- It was meant to be used as a shield and not a sword. However, it has been misued
- “Structure” has a degree of vagueness and that gives them immense powers.
However, features if specifically listed would give the parliament ways to bypass
them. Hence, Khanna in a tactful manner, used structure and not features so that the
Judiciary has enough scope to defend the constitution.
- Why “basic structure” doctrine is held as a precedent?
- 1. Other cases used this doctrine to defend their stance in subsequent years
- 2. Summary of Keshvananda Bharti’s case had the word “Basic Structure” inserted in
it.
- Khanna takes a different turn on the subject of fundamental rights
- For him, the basic structure won’t contain numbered provisions but rather principles
- Fundamental rights don’t form part of basic structure
- Structure here meant constitution in a larger sense. What constitution as a philosophy.
- A principle may not be part of FR but can be part of basic structure
- He looks at the debates of constituent assembly of draft 304A which stated that FR
can’t be amended. However, it was rejected. (Draft 304 is Art 368)
- Khanna says that on that basis it can be said that FR was intended to be amended
- Next, the 1st amendment was done itself by the provisional parliament which was the
constituent assembly.
- He is used the doctrine of Contemporaneous Exposition
- Taking a historical fact and asses it in the contemporary times
- Shastri J was right on the point FR can be amended but cannot be amended without
restriction i.e. the basic structure.
- Supreme Whispers by Abhinav Chandrachud
- George Gadbois Working a Democratic Constitution
- 24th amendment was valid
- 25th amendment was a problem- Last part of Art 31C is held to be unconstitutional
because it hits the basic structure
- It was because it disallowed judicial review
- Basic structure test only for a constitutional amendment

- RAJ NARAIN CASE

- 12th June 1975- J. Jagmohan Sinha held Raj Narain’s accusation against Indira Gandhi
is correct and her election win in 1971 is declared invalid.
- She decides to appeal to the SC

- 24th June she was heard by a single vacation judge of the SC who was J. Krishna Iyer.

- Conditional stay was granted: Can continue as PM but on the floor of the house she
would not be allowed to vote.

- 25th June, 1975 emergency was proclaimed.

- Suspension of enforcement of all FRs.

- 39th Amendment was passed- 1. Retrospectively, Art 329A is inserted- Any matter
connected to the election of the Pres, V. Pres, Speaker and PM shall be regulated only
by the Parliament.

- 2. Retrospectively, all the list of corrupted practices that she was accused of was
removed from the RPRA and the election law (Amendment) malpractices and was put
into the 9th schedule.

- The judges presiding was mostly against the concept of “Basic structure”

- Judges unanimously agreed that Art 329A was problematic. Since this is basically
taking away the power of courts and giving it to the parliament

- It is also violating rule of law and separation of power. Also, it causes violation of Art
14 arbitrary classification.

- Therefore, on jurisdiction, the claim of Indira Gandhi was rejected

- Merits of the case:

- Courts said it was passed regardless of any debate or not

- Khanna had stated in KB case he said that the basic structure test only applied to
constitution amendment only

- The other judges stated that parliament in its wisdom amended these provisions and
put it in 9th Schedule. Hence, we can’t have FR test. Moreover, since it is not a
constitutional amendment, we can’t have a basic structure test.

- Indira Gandhi’s election was saved

- J. Beg opposed that by stating all kinds of amendments should be put under the
scrutiny of Basic Structure Test.

- Next, Indira Gandhi brings in the 42nd Amendment Act which was called the mini
constitution

- It changes Art 368 by adding clauses (4) and (5)

- Clause 4 essentially debars judicial review

- Clause 5 No limitation on powers of parliament to amend the constitution.

- Art 31 C extended to “Any law passed in pursuance DPSP” and not just law passed by
39(a) and 39(b)

- Janata party undid most of 42nd amendment except:

- Art 368(4)/(5) and Art 31C.

- This is because JP didn’t have numbers in Rajya Sabha.

- Minevera mill case

- 1974 law passed: Sick textile undertaking nationalising act

- Minevra mill was nationalized in 1975

- 39th amendment put this act also in the 9th schedule

- Minevra mills wanted to challenge this nationalization

- Palkhivala represented them

- He argued on the fact that no consti amendment can be challenged

- On jurisdiction: Palkhivala says that the fact that amendment which limits the basic
structure itself violates the basic structure. (Accepted)(Invaliddates 368(4) and (5))

- On merits: Look at the timeline. The nationalization cannot be governed by 42nd

Amendment as it was passed in 1976. Nationalisation act was governed by the
unamended 31C and not the expansion of 31C. So he cannot technically challenge
31C.

- Since Palkhivala challenges the 42nd Amendment, there is no cause of action in the
client’s case. This is because Minevra mill was nationalized before the 42 nd
Amendment.

- SC insists that Palkhivala argues regardless of whether Minevra Mill follows under
the bracket or not.

- He argues the constitutionality of 42nd Amendment

- Sanjeev Coke Manufacturing Ltd v Bharat Coking Coal Ltd: Only case where it was
held that Minevra Mills was an obitor on the subject of 31C.

- FR and DPSP has to be in harmony. This is a part of the basic structure. This disrupts
the balance. Hence, 31C expanded is a problem. 31C states that any law passed in
pursuance of DPSP cannot be challenged on Art 14 and Art 19.

- Minevra Mills had one dissent: J. Bhagwati: He stated that expansion of 31C does not
disrupt the harmony of FR and DPSPs.

- Waman Rao v UOI case

- Q. of amendments passed before Keshavananda Bharti?
- The judges stated that basic structure was not created but merely stated the existence
of Basic Structure
- The judges scrutinized as an academic exercise, all the consti amendments on the
anvils of basic structure
- They concluded all the amendments do not violate basic structure
- Pre- keshavananda all were clear.
- However, post keshavanada, a trend was seen where ordinary laws were put under the
9th schedule protecting them from all kinds of scrutiny.
- Post Keshavanada Bharti, all consti amendment which puts any law in the 9th
schedule will be subject to a basic structure test.
- Even though this would mean a scrutiny of ordinary law by the basic structure, it
would be justified since by inserting it in the 9th schedule that laws gain significant
constitutional importance.
- The act in question was “Urban Land Celining and Regulation Act, 1976”

- In the Indira Gandhi case, Khanna clarified that he did not mean that no FR is a part
of the basic structure, rather FR as a block is not a part but the principle underlying is
definitely a part.
- J. Mathew in IG case: In cases of laws part of 9th schedule, they cannot be put to FR
scrutiny. However, it can be scrutinised if the FR is part of basic structure, by logical
conclusion it can be scrutinised by that particular FR which is a part of basic structure.
- J. Chandrachud in Minevra Mills also goes to state that the golden triangle (14,19,21)
is part of the basic structure.

- 2007 Case: M Nagaraj v Union of India

- ( Validity of Consti amendment 77, 81, 82, 85)
- Dealt with reservation
- First time the court provides a test of basic structure.
- Two prongs: Width test and Identity test
- Width test: Stretch the amendment to its max amplitude and then check whether it
violates the any of the limitations provided in our constitution
- Identity test: Assuming it does not violates the first test, look whether it changes the
basic identity of the constitution.
- Nagraj test is essence of rights of tests.

- IR Coelho v State of Tamil Nadu 2007

- In late 60s, a law was passed in TN which was contested to be violative of FR and
was declared void ab initio
- However, it was after few years, this law was put in the 9th schedule.
- 7 judge bench decided this
- CJI Sabharwal
- They also discussed at Waman Rao and nature of 9th schedule
- Mathew (IG), Nagraj, Chandrachud (MM and waman rao)
- 9th schedule laws will be subjected to basic structure. Essentially we are testing laws
- They are also subjected to Fr test of those in the basic structure.
- Essence of rights won’t be useful here(As 9th schedule immunizes from the entire FR
test)
- Rather we should have a rights test.(Test of the FR in the basic structure)
- Art 32 also part of Basic structure and hence can be used in the rights test.
- By using Art 32, they can actually do an entire FR test.
- He ties up all the threads.
- End of IG case’s relevance.
- Invisibility of the 9th schedule is done for.
- Prof Kamala shankaran article (Read)
- Various cases highlighted that ordinary laws were scrutinized under the basic
structure (Eg: NJAC case, GC Kanungo v State of Orissa etc.)
- Basic Structure: Madhav Khosla(Oxford Handbook), MP Jain, VN Shukla

- Speculation on the mellowdown of IR Coelho by the judiciary:

- Glanrock Estate Pvt Ltd v State of Tamil Nadu
- For every transgression of Art 14 and 19, looking at 9th schedule is unfair. Hence,
only major transgression will be scrutinised.
- http://www.commonlii.org/in/journals/INJlConLaw/2010/3.html
- (Pathik Gandhi)
- KT Plantation v State of Kerala
- Indian Medical Assoiation v Union of India
- Essence of rights test is not done away with. Rights test is used for 9th schedule as
essence of rights test cannot be used for 9th schedule. Rest of the constitutional
amendments violating FRs can have Essence of Rights test applied to it

- JUDICIARY
- Independence of Judiciary
- Fixed retirement age
- Difficulty to impeach the judge
- Salary is decided by the parliament and not the executive
- Appointment of Judges
- Art 124 and 127
- 124 says appointment needs to be done by the President in consultation of the
judiciary. (In 1950)
- No major controversy in transfer of judges before emergency.
- During emergency, judges were transferred on the whimps and fancies of govt.
- A Guj. HC judge challenged his transfer.
- Union of India v Sankalchand Himmatlal Sheth-1977
- SC said that the consultation should be a meaningful consultation
- Real, substantial and effective based on materials provided by the CJI to the
President.
- Nevertheless, primacy lies with the government.
- Judicial Review is applicable
- S.P. Gupta v Union of India: First Judge case 1981
- This case primarily dealt with appointments
- Followed the reasoning of Sankalchand
- Distinction was that judicial review is not necessary.
- Supreme Court Advocates on Records Association v Union of India: Second Judge
Case 1993
- SC says that consultation here means it should be in concurrence of the CJI meaning
if the CJI doesn’t agree with the decision of the Prez, it cannot be done.
-
- Third Judges Case
- Read the case
- Position of CJI diluted
- Unsuitability- reasons not required instead say why someone else is more suitable

- 2014 Modi Gov brings in NJAC Act- Amendment to Art 124

- It is a representative body unlike the Collegium
- One of the complaints was that it was an opaque body with no sort of accountability
- NJAC- Body of 6 members- CJI, 2 more senior most judges, Law Minister, two
eminent members will be selected (By a body comprising CJI, PM and Leader of
Opp). This body will supervise all judicial appointments.
- One of the eminent member has to be either a woman or a from a minority group or
SC/ST provided the either four members don’t already is a woman or from a minority
group or SC/ST
- If two members express disagreement over a certain name, it would be dropped. This
can essentially be a veto power.
- Chaleshmeshwar J. can change their basic features so long they don’t alter the basic
structure, those changes can be made.
- https://www.google.com/url?hl=en&q=https://www.thehindu.com/opinion/lead/collegium-
and-transparency/article19956961.ece&sa=D&ust=1596268665913000&usg=AFQjCNEZDzX-
AhrS6t84J0s9zJAURRV_6Q

- Summary of the third judges case

- The Third Judge case was not a case but an opinion delivered by the Supreme Court
on the behest of the President under Art 143.
- The President made a reference under its power of Art 143 to the SC. The reference
was with regards to three question: 1). Consultation between the CJI and his brother
judges in the matter of appointments of SC and HC judges and the transfer of the
latter. 2) Judicial Review of transfer of Judges. 3) the relevance of seniority in making
appointments to the Supreme Court.
- It was clarified by the Attorney General that the president is not seeking a review of
the Second Judges case and would accept the opinions of the SC as binding.
-
- JURISIDICTION OF THE JUDICIARY
- Original Jurisdiction means you can file a case before that particular court
- Appellate Jurisdiction means you can file a case in that court only on appeals
- Writ remedies is not a subject matter in these jurisdictions
- Original Jurisdiction of SC- Art 131
- Appellate Jurisdiction of SC- Art 132 onwards
- Art 131- Original Jurisdiction- Starts with Subject to provisions of Constitution-
Means that even if all elements of Art 131 is fulfilled, there may be cases where
specialized forums have been created. Eg: Inter-state water disputes (Art 262)
- Original jurisdiction includes only States as parties
- Depends on the existence of Legal Right
- Art 131
- Eg: Kerela on CAA
- Chattisgarh against the NIA Act

- Art 134A- HC needs to give certificate of appeal under Art 132 only then can you
appeal in the SC
- It is given only when HC feels there is a substantial question of law involved
- Q: Does the criteria is fulfilled if a single bench hears you case in HC?
- Art 133- Difference: Civil Matter and Substantial question of law of general
importance (In contrast with Art 132). This was not the case till 1972. It was only if
the matter involved 20k or more rupees, can you go for an appeal.(30th Amendment
Changed this)
- Art 133(3)- No appeal against the judgement passed by Single Judge Bench.
- This is not present in Art 132
- Art 132 deals with matter with substantial constitutional importance.
- Situation 1: Under 226 and 227, pending in lower court, HC withdraws the matter
from the lower court, and delivers a judgement and has sentenced you to death.
Directly appeals to SC allowed
- Situation 2: Lower court exonerates you. HC sentences you to death. You can directly
appeal to SC without any certificate of appeal
- Situation 3: Lower court gives you life imprisonment. HC gives you death sentence.
NO right of automatic appeal to SC. You need a certificate of appeal
- These three criteria is present in Art 134
- Grounds of Art 134 can be widened by the Parliament
- THE SUPREME COURT (ENLARGEMENT OF CRIMINAL APPELLATE JURISDICTION)
ACT, 1970
- This law added two more grounds
- Right for automatic appeal
- Election Commission v Saka Venkata Subba Rao (1953): Single judge of HC gave
certificate of appeal under Art 132
- RD Agarwala v UOI (1970): Hidayatullah J. said Single Judge bench of HC cannot grant
certificate of appeal
- Servai points out a problem with RD Agarwala. This is because in this case
Hidayatullah J. didn’t point out the judgement of Saka Venkata Subba Rao. And as a
result Saka Venkata is still good and RD Agarwal is bad in law. This is however only
Seervai’s opinion
- Art 134(A)- ‘may’ and ‘shall’ means the court would decide on the question of the
certificate should be given or not.
- Art 136- SLP
- Any case being heard in India in any court, you can file an SLP before the SC
- SLP is not an appeal but a pathway to appeal
- If SC says leave granted, then you can go an appeal before SC
- Guidelines for SLP- SC has no guidelines
- Pritam Singh v State (1950): “Generally speaking, this Court will not grant special
leave, unless it is shown that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that the case in question presents
features of sufficient gravity to warrant a review of the decision appealed against.” SC
on SLP
- 1.All matters involving substantial questions of law relating to the interpretation of
the Constitution of India.
- 2. Substantial questions of law of general importance.
- 3. All matters of national or public importance.
- 4. Validity of laws, Central and State.
- 5. After Kesavananda Bharati, the judicial review of Constitutional Amendments.
- 6. To settle differences of opinion of important issues of law between High Courts.
- Guidelines given by KK Venugopal in a case
- This recommendation was given to a constitution bench
- This bench gave a judgement in 2016 : Justice Dave states this: Upon perusal of the
law laid down by this Court in the aforesaid judgments, in our opinion, no effort
should be made to restrict the powers of this Court under Article 136 because while
exercising its powers under Article 136 of the Constitution of India, this Court can,
after considering facts of the case to be decided, very well use its discretion. In the
interest of justice, in our view, it would be better to use the said power with
circumspection, rather than to limit the power forever.
- This was a follow up of the Mathai v George case. It was a two judge bench and was
referred to a constitutional bench to decide on this matter
- Art 137 is a review petition- After case disposed by SC, new facts come to life which
has the ability to change the judgement, the case can be reviewed by the SC. Another
point for review, an error apparent was found. Eg: Per incurium
- Biases of judges can also be a point. If the judge has a personal link with one of the
parties.
- Order 47 Rule 1 CPC- Review Petition
- Rupa Ashoke Hurra v Ashoke Hurra- If parties continue to allege an apparent mistake
after their review petition is rejected, you can file a curative petition
- Curative Petition
- Art 142- SC’s power to do complete justice (Constitution doesn’t mention anything
about curative petition
- A senior advocate needs to corroborate your claim
- And if the SC finds your claim to your baseless, courts will impose examplinary costs

- TRIBUNALS
- Are tribunals only for specialised form of disputes?
- Does that mean the SC won’t have any competence to supervise them?
- Tribunals derive legitimacy from the Constitution and the Parent Statutes.
- Arun Trivandanam- Tribunals (Oxford Handbook)
- 1st Law Commission on the burden of courts and alternative mechanisms using
tribunals
- This is in their 14th Report
- They said it was not required as tribunals are administrative courts. Meaning they are
courts however they deal it in an administrative was like the executive. The tribunals
are subject to Parliamentary will and thus their independence is lost
- This kind of executive interference, tribunalisation was looked down upon
- Only can be done for adjudicating routine administrative matters (Eg: Ordinary
service related matters)
- However, as a general rule, it should not be used in place of judiciary functions.
- In 1972, Shah Committee basing their report on the 14th LCI report, they wrongfully
interpreted that tribunals should be compulsorily be set up for administrative matters
- However, in 1974, the 6th LCI, goes on to say that Shah Report was wrong and that
even administrative tribunals should not be set up.
- During Emergency, Sardar Swaran Singh committee was formed within the congress
party whose recommendation was incorporated in the 42nd Amendment
- They recommended improvements in Judicial Functions:
- 1. Tribunals should be regularly set up
- 2. Their decisions can be heard in the SC only by SLPs. No other remedy, including
Writs, can be exercised
- 3. Writs should also be excluded
- These recommendations had the potential of making the Judiciary Redundant
- 4. The power to declare laws unconstitutional should be taken away from the courts
- 5. Power of Writs of the HCs and SC should be taken away too
- New Chapter in Constitution included- 323A and 323B by the 42nd Amendments
- They dealt with the creation and functions of the tribunal
- In 1985, Rajiv Gandhi made the first push towards Tribulinisation
- Administrative Tribunals Act, 1985- Legislation passed
- Administrative tribunals shall be set up
- Members would be appointed by Gov.
- Decisions would not be reviewed except by SLPs.
- This came to light in the S. P Sampath Kumar Case
- He wanted it to be struck unconstitutional- 2judge bench (Ranganath and Bhagwati J.)
- Bhagwati J. says to attorney general to send the legislation back to the Parliament and
work on the recommendations given by him lest he would declare it unconstitutional
- Three recommendations given by him and Raganath J
- Atleast one Judicary member in the tribunal
- Cannot randomly set up tribunals and rather at the place of the seat of the HCs
- Should not take away SC’s writs jurisdiction under Art 32 should be restored.
However, nothing was said about the HCs power of Writ
- Parliaments made these three changes
- Now a full fledged constitutional bench was present

- Chandrakumar case

- ARTICLE 32 VS 226- 226 is wider

- 226 can be used against any authority, 32- state
- 226 can be used against fundamental rights and other legal rights, 32- only fr
-
- CHANDRAKUMAR
- Would tribunals supplement high court or substitute high court?
- They cant substitute the high court
- Should exercised superintendance and supervision over the tribunal
- Only as a supplementary mechanism
- Can never remove a high court
-
-
- Can go to HC from tribunal- FR impeded, problem with functioning- exceeding
scope, errors, fair trial not observed, bias
- For merits- SLP if they admit the matter
-
- After Chandrakumar
- Another case, that came to SC- Debt recovery tribunal
- Consitutionality of the DRT act was challenged
- Delhi hC- Declared it to be unconstitutional
- Needed DRT
- Nothing wrong with tribunals per say, but they just have to be constitutional
-
- 2nd round of litigation- National company law tribunal, national tax tribunals
- 1)
- Can the tribunals completely replace HCs? Is it supplementary or substitutive to the
HCs?

- Delhi HC held this unconstitutional (Delhi bar association case)

- Recovery of debt Act, 1993 (Check the full act)
- Firstly, because on the allocation of cases, the judiciary needs to play a role
- Secondly, it was violative of Art 14.

- Arun’s Article on Tribunals (Oxford Handbook)

- UOI v. R. Gandhi 2010

- 2002, NCLT was set up to deal with Company Law
- Arguments that compromise on the independence as Govt appoints them and gov also
one of the main litigant
- Therefor, writ was filed in Madras HC
- J. Jayasingha agreed w R. Gandhi
- Said it was unconstitutional as it compromises with the appointment of judges and so
on
- Severe impairment of separation of powers
- Went to SC
- Justice Ravindran laid down three principles
- Given in Oxford Handbook
- (i)Parliament has the power to create tribunals on subjects over which it possesses
subject matter competence. However, following Chandra Kumar, the creation of
tribunals cannot exclude the writ jurisdiction of the High Courts and the Supreme
Court under Articles 226 and 32.
- (ii) While the legislature can make a law providing for tribunals, the superior courts
can, in exercise of the power of judicial review, examine whether the qualifications
and eligibility criteria provided for selection of members are proper and adequate.
- (iii) Parliament cannot pack tribunals with members from the civil service.
Considerations of separation of powers and the independence of the judiciary must be
respected
- In 2014, Madras Bar Association, challenged the National Tax Tribunal (NTT)
- NTT was set up to handle tax matters
- NTT Act, 2005
- Benches of NTT every state
- After that, appeal lies in NTT in Delhi
- Excludes the jurisdiction of HCs.
- Govt justifies by saying the specialised nature of Tax and the fact about reducing
HC’s burden
- Also, the fact that different HCs have interpreted Tax matters in different way. This
leads to a lot of difficulties.
- Madras Bar Association v. UOI, 2014 (Madras Bar Association Case 1)
- J. Khehar declared the entire law to be unconstitutional
- Goes against Sampath Kumar
- J. Nariman said this gives tribunal powers to interpret substantial questions of law and
this goes against the principle of separation of law
- So held, unconstitutional in toto
- Madras Bar Association v. UOI, 2015 (Madras Bar Association Case 2)
- NCLT and NCLAT
- Company’s Act, 2013 came in
- One provision included creation of these two tribunals
- Govt did not implement all 14 recommendations of the NCLT and NCLAT
- MBA argues that since R Gandhi recommendations were not accepted, requested
these two tribunals to be declared as unconstitutional
- Both J. Sikri and J.Nariman did not declare the entire law to be unconstitutional and
asked them to incorporate the changes proposed in the R. Gandhi case
- One reason was because HCs were allowed to deal with substantial questions of law.
- Art 226 provides supervisory powers to HC through the Writ of Certeorari (Quashing
of orders of lower courts when they have acted beyond their scope)
- Art 227 is superintendence powers of HC. It can even quash and issue orders to the
lower courts
- Surya Dev Rai v Ram Chander Rai (2003)
- Highlighted three differences between the two Articles
- 1. Art 226 is a writ and is in the nature of an original jurisdiction and not an appeal.
Art 227 is an appellate, revisional or a corrective jurisdiction, more like an appeal
- 2. Art 226 only annul a decision. Art 227 can not just annul but can also issue
directives and orders
- 3. Writ under art 226, aggrieved party needs to appear before the HC. Under art 227,
HCs can also take cognizance suo moto.
- Why Art 226 is wider than Art 32?
- It is independent to the powers vested upon the SC under 32
- Usually, SC prefers the matter to be heard first in the HC
- Two reasons, logistical reason- Not everyone can come to Delhi
- Burden of cases
- 32- most of the FRs can be enforced against the States
- But 226 is available for even persons and other authorities. Private individual can also
be sued
- However, there is a restriction to the extent that they can be sued only when the body
is performing a function which follows a public fuction
- “And any other purpose” in Art 226 considerably widens its scope
- Maharashtra Chess Association v. Union of India
- “The existence of an alternate remedy, whether adequate or not, does not alter the
fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore
does not create an absolute legal bar on the exercise of the writ jurisdiction by a High
Court.”
- “The intention behind this self-imposed rule is clear. If High Courts were to exercise
their writ jurisdiction so widely as to regularly override statutory appellate
procedures, they would themselves become inundated with a vast number of cases to
the detriment of the litigants in those cases.”
- Maharashtra Chess Association v. Union of India
- “The existence of an alternate remedy, whether adequate or not, does not alter the
fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore
does not create an absolute legal bar on the exercise of the writ jurisdiction by a High
Court.”
- “The intention behind this self-imposed rule is clear. If High Courts were to exercise
their writ jurisdiction so widely as to regularly override statutory appellate
procedures, they would themselves become inundated with a vast number of cases to
the detriment of the litigants in those cases.”
- “The mere existence of alternate forums where the aggrieved party may secure relief
does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a
factor to be taken into consideration by the High Court amongst several factors.”
- https://www.lawbulls.in/alternative-efficacious-remedy-not-a-bar-on-writ/
- Marbury v Madison- Judicial Overreach
LEGISLATURE
- Art 102(1)(a) and 191(1)(a)- Disqualification for office of profit
- Office of profit under the government
- “Under the government”- (i) whether the government is the appointing authority, (ii)
whether the government has the power to terminate the appointment, (iii) whether the
government determines the remuneration, (iv) what is the source of remuneration, and
(v) the power that comes with the position
- Laid down in several cases
- Gurugobinda Basu vs Sankari Prasad Ghosal- 1993
- Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev
- Parliament (Prevention of Disqualification) Act, 1959- List of offices outside the
ambit of disqualification under the office of profit
- What is office of profit?
- Justification- separation of powers
- In 2005, Jaya bacchan was Chair of UP Films development committee
- She was a Rajya Sabha MP under Samajhvadhi Party
- Even though she was held it for free, the congress complained that she should be
disqualified for holding an office of profit.
- Jaya Bachaan v. UOI 2006- SC
- SC says it doesn’t matter whether she is receiving money or not
- It only matters that she was entitled to that remuneration
- Thus, it is immaterial that she is not taking voluntarily any remuneration
- Sonia Gandhi was chairperson of National Advisory Commission
- She was challenged under office of profit
- She stepped down
- And got re-elected
- However, an amendment was made to the Parliament(Prevention of Disqualification)
Act and added the NAC
- http://legislative.gov.in/sites/default/files/A1959-10.pdf
- Disqualification made by President in consultation with Election Commission. (Art
103)

- DEFECTION
- 52nd Constitutional Amendment brought in 10th Schedule to prevent defection
- In 1985, it was brought in
- Prior to that year, defection didn’t bring in any necessary punishments
- Kihoto Hollohan v Zachilhu
- Page 314 of the Oxford Handbook- Change 2(a) Membership of house to party.
- Conditions laid down by the 52nd amendment and 10th Schedule for defection
- Ravi Naik v Union of India
- SC held that voluntarily giving up of membership amounts to resignation
- Exceptions to 2(b)- If he has taken prior permission to abstain or if he has pressed the
vote by mistake or if the party condones his dissent within 15 days.
- Defection proceedings can be started by either by the party or the speaker.
- After nomination, an independent nominee can be affiliated with a party within 6
months. After passing of 6 months, affiliation would beg defection proceedings
- Point 5- 1/3rd has been raised to 2/3rd.
- Kihoto Hollohan v Zachilhu
- Procedural Challenge
- In the way 10th schedule was brought in
- Issues dealing with powers of HC and SC- Para 6 and 7 of 10th Schedule
- Such issues require ratification of states
- This did not happen
- This became the primary challenge
- 5 judge bench (3-2)
- Para 7 was held unconstitutional not on grounds of basic structure but on grounds of
procedure (Majority)
- Severability principle was applied. 10th schedule constitutional other than para 7 as it
is only that para which deals with the powers of HC
- Minority claimed that the entire 10th schedule should be struck down
- Maj opinion said that speaker is like a tribunal. If there is a mala fide intention, on
certain grounds his decisions can be challenged
- Minority claimed that speaker should not be equated with a tribunal. There is definite
political connections. Atleast tribunals have semblance of sort of independence
- Para 7 and 6 stated that speaker will be the judge on defection and there will be no
judicial review to his decision
- Keisham Meghachandra Singh v The Honble Speaker Manipur 2020
- Speaker was taking a lot of time in times of disqualification
- J. Nariman states that para 6 needs to be reconsidered.
- “It is time Parliament had a rethink on whether disqualification petitions ought to be
entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to
belong to a particular political party either de jure or de facto,”
- 5 cases on privileges
- 2 cases on privileges and FRs
- MSM Sharma v Sri Krishna Sinha
- Speaker can strike off records on count of privileges
- And expunged off records proceedings cannot be reported
- Anyone reporting it will be in contempt of the assembly
- One such incident in Bihar assembly
- MSM Sharma filed a writ in Court
- Saying his FR to speech is being restricted
- And parliamentary privilege (PP) is not given as a restriction over the FR of speech
- Can you then say that FR is below a parliamentary privilege?
- Argument not accepted
- FR and PP operate at two different levels
- This cannot be categorised as a normal situation
- Dissent from Subha Rao
- Fallacious argument
- FRs should easily override PP
- MSM has committed no mistake
- Expunging any proceedings is completely upto the speaker.
- KESHAV SINGH CASE 1964
- Keshav singh was a journalist
- He was distributing pamphlets stating that speaker was condoning mischiefs of a MP
- Speaker holds him guilty of Contempt of parliament and orders him to be
imprisonment
- Keshav’s lawyer files for habeous corpus
- Court allowed the writ
- Speaker said that Keshav, his lawyer and the two judges have committed contempt of
parliament
- And all four should be imprisonment
- President was requested to ask for SC’s advise under Art 141
- SC sat to reinvestigate scope of PP
- SC says assembly does have power but cannot be taken to an absurd end
- It is still under the scope of Judicial Review
- Doesn’t deny the lawyer and the judges to do their duty
- They don’t operate in different levels
- 3rd case
- 1991 Narsimha Rao came to power
- 1992 Babri Masjid
- No confidence motion was passed against his govt
- MPs around India held a press conference that they won’t support the govt
- However, next day after vote was done, it was revealed that the MPs instead
supported the government
- Journalist found out that there was a bribery angle
- JMM Bribery Scandal
- Do their PP extend to even the fact that their bribery case
- Contention- CBI wanted to start the proceedings against the MPs too
- Prosecution requires the functioning of Prevention of Corruption Act
- It was an act for which authorisation from speaker was required as it was a privileged
act
- The speaker denied
- SC heard the matter
- Majority decided that Parliament was right
- They have an absolute privilege
- SC stated that since they accepted bribes for a vote which is a PP, they would be
immunised
- It became a slippery slope
- CBI argued that can a crime be immunised?
- PV Narsimha Rao v. UOI (3rd Case)
- 4th case- Raja Rampal Singh v. Hon. Speake, Lok Sabha
- Also a scandal case
- Cash for questions scam
- Bribes was accepted and it was caught on live camera
- Speaker immediately reported it to the ethics committee of the house
- Somnath Chatterjee was the Speaker
- He went on to expel these members
- The MPs went to SC to reverse it
- SC has judicial review power to hear the matter
- Merits- they have parliamentary privileges
- On jurisdiction- Ordinarily, we would not take up the case. Unless you can show
irregularities, we won’t take up the case
- In this case, we find none and we shall stand with the speaker
- This expulsion and not disqualification
- It is the prerogative of the house
- On merits- No, if the speaker decides that it is against the ethics and we don’t find any
irregularities, we would support the speaker
- Ambit of PP is circumscribed by the speaker’s decision
- 5th Case
- Prakash Badal, CM of Punjab (2007)
- His govt started an enquiry against Capt. Amrinder Singh (2002-07 CM of Punjab)
- And decided to expel them
- Allegations against him as a executive as a CM not as a legislator (Different from
Raja Rampal)
- Challenged his expulsion in SC
- SC states that a MP can’t be expelled if he is the executive
- Legislature doesn’t have the power to regulate executive’s conduct
- SC nullified the expulsion

- EXECUTIVE
- Unlike the legislator and the Judiciary, there is no composite body of executive
- Members of Executive
- Two categories, viz. Political and Administrative Executive
- Politicians- Prez, PM, Ministers – Political Executive
- Rest are Administrative Executive- CAG, Civil Servants, Gov Officials, Election
Commission etc.
- All are part of executive
- Job description and Appointment is different between the two categories.
- This is a very informal classification
- Not in Constitution
- References found in some SC cases
- Political Executive appointed by the people’s mandate
- Governor is not elected
- Original text of constitution puts a question on the premise that India is a
parliamentary and not a presidential democracy
- Art 53 specifically gives direct power to president at a prima facie glance
- Art 74 originally said there shall be a consil of minister with PM to aid the president
- Art 78, duty of PM to relay of legislative info to President
- These 3 articles read together gives impression that President has a lot more power
than a nominal head
- It’s just that it is only the Judiciary who have rather asserted that we are a
parliamentary democracy and not a presidential case
- Judicial precedent and not constitution per se
- Ram Jawaya Kapoor v State of Punjab (1955)
- Decision taken by gov in the name of the president
- Petitioner argued that president has not been consulted so how can such a decision be
taken
- SC steps in and says that we are a parliamentary democracy and actual consultation is
not required
- UNR Rao v Indira Gandhi
- IG wanted to dissolve the parliament
- Prez said that it’s fine just continue to function as a caretaker gov till the next election
happens
- UNR Rao asks how can IG become a caretaker gov
- We don’t need a gov, the prez himself can do that (Art 53)
- SC says no, we can’t have a single day where prez functions on its own
- We have to have a PM, because we are a parliamentary democracy
- Basic structure, judicial precedent and 42nd Amendment has established Parliamentary
Democracy
- Difference between Prez and Governor
- Art 156- in office till he enjoys pleasure of the prez
- Main difference between president and governor is duration of tenure
- President has a fixed tenure however governor doesn’t have a fixed tenure
- “Pleasure of president” in removal of governors
- BP SINGHAL V. UOI (Last para 50 https://indiankanoon.org/doc/1471968/)
- The conclusion in itself contradicts itself
- Says President can remove without any reason and show cause however it cannot be
arbitrary
- Limited Judicial review- Mala fide, capricious, whimsical

- Art 163 (1): Council of Minister with the CM at its head to guide the governor
“except in so far as he is by or under this Constitution required to exercise his
functions or any of them in his discretion.”
- Wider powers than President
- Discretionary powers of the Governors given because governors are representative of
the Centres.
- Last part is present only for cases of Governors
- Shamsher Singh v State of Punjab (1974)
- Fact: removal of certain judges
- Discretion of President
- Krishna Iyer J points 3 areas of pres discretionary opinion
- This was a concurring opinion
- Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief
Minister) restricted thought his choice. is by the paramount consideration that he should command
majority in the House;
- (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office;
- (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the
Head of State should avoid getting involved in politics and must be -advised by his Prime Minister
(Chief Minister) who. will eventually take the responsibility for the step.
- This is NOT an exhaustive list
- Pardoning power of president and governor
- Art 72 and 161
- Maru Ram v. UOI
- Deals with the constitutionality of §433(A) of the CRPC- Somebody has been
punished with life imprisonment, it can be commuted to 14 years subject to certain
conditions
- Art 72 has three categories: Court Martial, law which has been passed by the
parliament in the Union and concurrent list and Death penalty
- Art 161: Law which has been passed in exercise of state powers and the concurrent
list.
- This is not an exercise of presidential discretion but rather he is bound of the aid and
advise of the Government
- “Others, including educated people, often criticise the President for acts and omissions of the
government as orders are issued in the name of the President. Secondly, that the President (i.e., the
Central Government) has plenary powers to review sentences in criminal cases at any time has never
been in doubt. In the famous case of Beck who was convicted on mistaken identity,
- the British Crown (Home Secretary) exercised the power after a lapse of several years when the
mistake was discovered. I am of opinion that in the conditions prevailing in the country this power of
review should vest with the judiciary and not with the President, i.e., the Executive. It is well known
that in cases of political clashes, the ruling party taken the upper hand and if after conviction by Court,
the President, i.e. the executive, exercises clemency for those convicted, the rule of law will be
desecrated.”
- President autobiography in IG assassination case
- Why mercy petition?
- Evidence is taken on basis of evidence act
- The trial is based on the procedural law
- President is not bound by the evidence act
- And thus, even though guilt of the person is undisturbed, the president can come to a
conclusion that the punishment can be reduced
- Doesn’t really affect judicial precedent
- Kehar singh case issues
- 1. Whether there is justification for the view that when exercising his powers under Article 72, the
President is precluded from entering into the merits of a case decided finally by the Supreme Court. 2.
To what areas does the power of the President scrutinize extend and 3. Whether the petitioner is
entitled to an oral hearing from the President in his petition invoking the powers under Article 72.
- SC’s answers to the questions
- 1. It is opened with the President in the exercise of the power vested in him by Article 72 of the
Constitution to scrutinize the evidence on the record of the criminal case and come to a different
conclusion from that recorded by theCourt in regard to the guilt, and sentence imposes on the accused.
In doing so, the President does not amend or modify or supersede the judicial record. The judicial
record remains intact and undisturbed.
- 2. The rejection of the President cannot be subjected to judicial review on its merits except within the
strict limitations defined in Maru Ram’s case. 3. The proceedings before the President are of an
executive character and there is no right of oral hearing.
- Epuru Sudhkar v State of AP
- Person held guilty of mass murder was a congress leader
- He was granted a pardon by the president
- SC gave 5 grounds on which SC and HC can apply judicial review
- (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that
the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials
have been kept out of consideration; (e) that the order suffers from arbitrariness
- This was quite vaguely worded and hence it virtually renders the power completely
under judicial review
- Shatrughan Chauhan v Union of India
- Delay in disposal of mercy petition for only death penalty can be a ground for
commutation
- SC doesn’t mention a specific timeline
- Repeled tha part of Bhullar- where it stated that even on rarest of rare case,
commutation can happen
- Devender Pal Singh Bhullar v NCT of Delhi (Came before Chauhan)
- Related to the Khalistan- 2 Judge Bench
- Court said automatic commutation happens on case to case basis
- Rarest of rare cases

- LEGISLATIVE POWERS OF THE EXECUTIVE

- Power to promulgate ordinance
- Art 123 for president and Art 213 for governors
- Art 123
- Only when both houses are in session can ordinances be not passed
- Even if only one house is in session, president can pass the ordinance
- Ordinances are supposed to be passed for taking immediate actions like national
security, pandemic, financial crisis etc
- However, most ordinances passed hardly fulfil that criteria
- It is to be held as a law
- Only will seize to operate 6 weeks after both houses have convened.
- Can this ‘immediacy’ be under JR?
- Initially, it was held that immediacy is under JR
- In RC Cooper, immediacy of President’s ordinance can be challenged
- In 1975, 38th amendment was passed
- Clause 4 was inserted Art 123, immediacy ground cannot be called into question
- 44th amendment, clause 4 gets deleted
- In 1980, AK Roy v. UOI
- National Security Ordinance
- Did mention that Judicial scrutiny could be made but this is not applicable here since
it has already been made an act
- T Venkata Reddy v State of AP
- Said that immediacy cannot be questioned
- It is an executive prerogative
- In SR Bomnai, this question of limited judicial review came in
- Like BP Singhal case
- Similarly, it applies in ordinance also
- Even though immediacy per se doesn’t come into question, however the govt can be
asked to state the reasons for their actions
- In 1989, DC Wadhwa case, repromulgation was said to be a fraud on the constitution
- In 1989, there was another repromulgation, few Sanskrit schools in Bihar was taken
over by an ordinance
- Till 1998, this ordinance kept repromulgagted
- This came into a SC case Krishna Kumar Singh v State of Bihar (1998)
- 2 judge bench
- They held that repromulagation is unconstitutional
- They had a difference of opinion on immediacy
- One said that immediacy can be scrutinised while the other said to the contrary
- After the ordinance is lapsed, do the rights of the teachers exists?
- Sujata Manohar J said that rights will be lost (Ordinance is not law as it is a executive
prerogative and not passed by the legislature and Wadhwa J. said that rights would
still exist(he equated ordinance with temporary legislations and enduring rights)
- This was referred to a higher bench
- Same case- 2017- 7 judge bench
- Issue 1: Can Immediacy be judicially scrutinised
- Issue 2: Enduring rights
- Issue 3: Exceptions for repromulgation

- Ans to Issue 1: (J. Chandrachud majority opinion)- If RC Cooper settles this issue that
there is no role for judiciary, why was there a need to pass the 38th amendment and
why 44th amendment had to remove it? Thus, with 44th amendment, we were back to
square one and RC Cooper would apply

- Thus, judicial scrutiny could be done on the ground laid by SR Bomnai (limited
judicial gounds)

- Ans to Issue 2: Can ordinances create enduring rights? On Art 123(2), force and effect
maybe same. They may be subject to the same liabilities but they are different from
temporary legislations. This is in regards to the presence of a condition
precedent(Satisfaction of immediacy by prez) and a condition subsequent (ratification
by parliament). Thus, laws and ordinance cannot be made one and the same.
Temporary legislations making enduring rights were subjected to some legislature
scrutiny This is in not present in ordinances as it is after all a shortcut, circumventing
 a legislative process. So, by providing enduring rights through the ordinances, and the
ordinance is not ratified by the parliament, the executive would essentially give you
the power to vest rights even though they are bypassing the parliament.

“… the court must adopt an interpretation which furthers the basic constitutional premise of legislative control
over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to
survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature.
The silences of the Constitution must be imbued with substantive content by infusing them with a meaning
which enhances the rule of law.
To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create
binding effects for posterity would set a dangerous precedent in a parliamentary democracy.”
“… in deciding to mould the relief the effort of the court would be to determine whether undoing what has been
done under the ordinance would manifestly be contrary to public interest. Impracticality and irreversibility in
that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding
where public interest lies.
Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the
executive to assert the supposed complexities in undoing the effects of an ordinance. Since the basic
constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be
justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear
and cogent material.”
- (Chandrachud’s opinion on issue 2)
- Issue on re-promulgation: Chandrachud was absolutely against the repromulgation of
the ordinances even in exceptional circumstance. He uses Art 123(2)(a): “shall be
laid” it HAS to be put before the house. It is directive in nature.
- Dissent by J. Lokur- He has a problem with this interpretation of “shall”. Not all shall
has the same connotation. There may be a situation where even though the gov don’t
want to ratify a ordinance, a directive “shall” would compel the government would
have to put the ordinance on the floor of the parliament. Thus, this interpretation of
shall makes it impractical.
- There is glitch in Lokur’s reasoning as the gov always has the option before the
parliament.
- FEDERALISM- CENTRE-STATE RELATION
- Art 1 – Constituent makers mentioned that we called ourselves “Union of States” and
not “federation”
- Sinha J. has stated that a true federation is where the states come into an agreement to
form USA.
- Surrendering a part of sovereignty to form a larger republic
- In the Indian Context, we had to individually enter into negotiations with the princely
and non princely states to join India.
- That compact is according to Sinha J. a prerequisite for a federation (State of WB v
UOI 1963)
- Basic components of the Federal State- MP SINGH (Oxford Handbook)
- 4 charecteristics
- “The commonly accepted features of a federal constitution are: (i) existence of two
levels of government: a general government for the whole country and two or more
regional governments for different regions within that country; (ii) distribution of
competence or powers—legislative, executive, judicial, and financial—between the
general and the regional governments; (3) supremacy of the constitution—that is, the
foregoing arrangements are not only incorporated in the constitution but they are
also beyond the reach of either government to the extent that neither of them can
unilaterally change nor breach them; (4) dispute resolution mechanism for
determining the competence of the two governments for exercising any power or for
performing any function”
- The core content of these characteristics differ drastically between Nations
- Point 1: We have 3 tiers of gov
- Point 2: It is clearly shown that Union Gov has substantial amount of powers
- In the American Context, the only subject matter for the federal gov is Defence,
Communications, Finance and Ext. Affairs
- Rest is given in the hands of the state
- In India, this is completely opposite with Union having substantially more powers
- Even in respect of state list, in cases of emergency, if a subject of state list assumes
national importance, an international treaty or if two or more states delegate that
power to the union government, the parliament can pass a legislations on that state list
subject
- Even in respect of executive power, imposition of president rule exists.
- Point 3: Exists in India
- Point 4: Even in the dispute resolution mechanism, there is a tilt towards Union. Eg:
GST Compensation can’t be paid to the State Govt. due to act of god. GST reduces
the fiscal autonomy of the states. As a result, there was a financial loss faced by the
State. There was a promise given by then Fin. Minister Arun Jaitely that there would
be compensation to the States by the Union Gov. This is found Art 279(A)
- GST Compensation of Act, 2017: For any decision taken, there has to be atleast 3/4th
members consensus. However, there is a weightage given to each state. Union gov has
a weightage of 1/3rd vote. And all states have together 2/3rd of votes.
- This virtually gives a power of veto to the union gov
- Compensation needs to be paid from the GST Compensation Fund
- Fund is collected from the GST collected from the states
- However, 10(1) gives GST council to augment the fund.
- https://www.prsindia.org/sites/default/files/bill_files/GST%20%28Compensation%20
to%20States%29%20Act%2C%202017.pdf
- Dispute of GST has to be solved by a body which is formed by the GST Body itself
- Difference in approach of Sinha J. and Subba Rao J.
- Sinha looks at the creation of the Indian State and contrasts it with that of the
American State. He uses this to prove why India is not a federal State
- He uses the historical context to explain why there was no agreement on federation in
India
- 1. He says power division between Centre and State is completely different from than
in USA
- 2. Constitution is supreme but can be amended unlike in USA
- 3. Most powers lies with Centre as opposed in US where majority of powers lies with
State.
- 4. Powers of courts: This is present in both India and US
- Non obstante clause-Clauses starting with “Notwithstanding”
- Doctrine of Plenary powers- Giving the maximum width of interpretation to a clause
- Art 246, gives a hierarchy of the lists, I, III and then List II.
- Union list has to be given prominence and add to that the Pleanary powers doctrine,
so any legislation if it can be extended to include any Union list subject, it can be said
to be within the power of the Union
- Since, with such hierarchy, it might seem that the state list is redundant
- Thus, the Court came up with some mechanism to have atleast a semblance of power
for the States
- Methods of Interpretation-
- 1. Pith and Substance
- 2.Harmonious Construction
- These two doctrines used to give importance to State List
- It is only after exhausting these two doctrines, can doctrine of plenary powers be
used?
- Pith and Substance: No matter how well we segregate the powers, there will always
be overlapping. So we need to decide whether it is incidental or substantial? So it
needs to be decided, what is exactly the intent and rationale of the legislation. So if
the legislation’s spirit is in harmony with the power given and incidentally it also
incorporates the elements of another power, it would still belong to the domain of the
original power holder.
- This matter was heard by the Privy Council in the case of Prafulla Kumar Mukherjee v
Bank of Commerce, Khulna.
- A state passes a law to prevent loud speakers after 8pm to seek to have public health
and order. 7th Schedule (1 and 6 in state list)
- Challenged that it is beyond the state’s competence (31 of Union list)
- Says this is in Union list and Centre has competence over this
- State of Rajasthan v G. Chawla
- SC says that State has competence as the intent of the law was to regulate health and
not loud speakers per se. Plus, it is not a blanket ban but rather a restrictive rule.
- The crux of the law is prohibition on loud speakers at a certain time at night to ensure
public health
- It is not a law to regulate loud speakers per se.
- The interference with the Union list subject is merely incidental
- So, first determine the crux of the law and then check whether the encroachment is
substantial or incidental
- This is how the pith and substance doctrine has to be used
- Harmonious Construction
- University of Gujarat v Krishna Ranganath Mudholkar
- Debate about standards in education
- Whether language is part of standard?
- 11in state list v. 65 in Union list
- Then 11 has education in state list
- It was said that state doesn’t have competence
- Harmonious Construction
- In this doctrine, the powers are exclusively separated
- Mutually exclusive spheres of existence unlike in Pith and Substance where there is
an incidental overlap
- Subha Rao J. says language is not part of standards (Dissent)
- O.N. Mohindroo v Bar Council of Delhi (Read)
- Harmonious Construction is carving out two separate existence
- Union of India v Harbhajan Singh Dhillon
- 7 judge bench- 4-3 majority
- Parliament makes amendment to Wealth Tax Act
- Imposes wealth tax on net capital value on agricultural property
- Challenged: 2 grounds
- It is beyond parliamentary’s legislative competence: entry 86
- It is within the state’s competence: Taxes on land and buildings: entry 49
- Punjab HC stated it is not covered by entry 49. It also said that entry 86 doesn’t cover
it. Said no one can legislate
- Union appeals that entry 97 covers that power
- Palkivala states against Union that constituent makers explicitly excluded this beyond
Union’s power. Giving it back to the Union makes it completely absurd
- He states this is the only exception which has no inclusion in the state list unlike entry
82 and others
- Argument about Art 248 (Residuary powers-Union’s point)- Palkhivala says this is
contradictory if 86 prevents a power and 97 gives you that power.
- Palhivala says 97 starts with “any other”: Start with list 1-96 and if you find any
matter not found in any other lists, it can be used in 248. It means no reference of that
power should be given. Since entry 86, clearly excludes this power and thus it is not a
“residuary power”
- Union says- “any other” discusses only is relevant for powers not mentioned only in
list 2 and 3. Morover, even if it Palkhivala’s argument is accepted, Art 248 says “any
matter” and not “any other matter”. Parliament is disqualifying itself only under 86
and not under 97
- Palkhivala’s counter: Doesn’t matter because it is clearly excluded.
- Sikhri J. (majority): agrees with Union’s argument
- Shelat J.(Minority): agrees with Palkhivala. Says Union’s argument is illogical. Says
no one has competence to legislate
- Art. 254: whether it applies to all laws made by parliament or just to concurrent list
- Deep Chand v State of Uttar Pradesh
- M Karunanidhi v Union of India
- Hoechst Pharmaceuticals v State of Bihar
- Vijay Kumar Sharma v State of Karnatka
- It applies to both parts according to SC
- 254 applies to Concurrent List
- There is a movement against this
- Prof PK Tripathi is against this
- Look at Art 249,250,251
- Art 251 acts as a reconsiller between 249, 250 and state laws
- In the same way, Art 254(1) is reconciles the difference between 252,253 and state
laws
- Read Niranjan’s article in Oxford (Aspect theory is harmonious construction)
- ARTICLE 254: THE TEXT IS EXPLICIT BY PROFESSOR P. K. TRIPATHI
- “existing law”: means a pre-constitutional law
- In Vijay Kumar case, Karnataka passed a law to nationalise contract carriages in the
state. Vijay Kumar brings about the point of repugnancy with a law that had been
passed by the Parliament. Now for SC it become only about concurrent list and VK
pointed to Entry 42 and 35 of Concurrent List. SC says when you deal with two
separate entries of the Concurrent list, repugnancy cannot apply. It has to apply to the
same list only. Justification of SC comes from the wordings of the qualifier in Art 254
“One of the matter” in the concurrent. This has been severely critisized by Niranjan
- A repugnant state law can be saved unlike a incompetency. Given in Art 254(2). Two
conditions: Should be enacted later than a parliamentary law and governor should
reserve it for prez’s assent.
- However, proviso basically gives power to parliament to repeal or amendment to that
state law. (254(2))
- For repealing does the Union Act have to specifically mention the State law or does any law passed
under the same matter automatically repeal the State law?
- Zaverbhai Amaidas v State of Bombay
- Law passed in pre independence dealing with essential commodity- 3 years
imprisonment for hoarding. State of Bombay passed a similar law with a 7 years
punishment. Subsequently, parliament passed another law categorising essential
commodities in 3 segmentings: Food grains, textiles, others. Amendment to the
parliamentary law and not the state law. Will Bombay law still prevail?
- Argument that new amendment didn’t touch the Bombay law. SC says no. Even if
they don’t touch the same law, since govt enacted on the same subject matter, it will
still render the state law repugnant.
- Is the mere existence of state and union law on the same concurrent list subject merits
a repugnancy?
- This is discussed in two SC cases
- In Deep Chand case, Subba rao on this point gives a three prong test while dealing
with repugnancy:
- (1) whether there was a direct conflict between them,
- (2) whether Parliament intended to lay down an exhaustive code in respect of the subject-matter
replacing the Act of the State Legislature,
- (3) whether both the laws occupied the same field.
- The 2nd and 3rd point is controvertial
- 2nd point is the doctrine of intended occupation: There is a parliamentary and state law
and no direct conflict. However, there is an intention from the union law that they
intended to occupy the entire field, the state law would stand to be repugnant
- 3rd point is the Occupied Field Doctrine. No requirement of intention, if they are
occupying the same field, the state law is repugnant. Could be found from the tenure
of the law. Number 2 is a possibility while Number 3 is more apparent.
- Deep Chand case: Motor vehicles act put in 1939, no thought of nationalisation was
given. Anybody could ply a bus route. A UP act was passed to nationalise the UP bus
route.
- SC said it is not under (1). Deep Chand argued it was (2). Intention of the govt to
occupy the entire field.
- SC found there was no repugnancy.
- Does "fields" mean the same as entry/subject matter under Lists?
- Fields don’t mean they deal with same entry. It can deal the same subject but can occupy different
areas of operations.
- In Karunanidhi case, J. Fazl Ali gives us four criteria explaining the three criteria of
deep chand:
- 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent
and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in
view of the repugnancy.
- 2. Where however a law passed by the State comes into collision with a law passed by Parliament on
an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the
provisions of the Central Act would become void provided the State Act has been passed in accordance
with clause (2) of Article 254.
- 3. Where a law passed by the State Legislature while being substantially within the scope of the entries
in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law
may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the
Act it appears that by and large the law falls within the four corners of the State List an entrenchment,
if any, is purely incidental or inconsequential.
- 4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is
inconsistent with and repugnant to a previous law made by Parliament, then such a law can be
protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of
obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in
the State and overrule the provisions of the Central Act in their applicability to the
- State only. Such a state of affairs will exist only until Parliament may at any time make a law adding
to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article
254.
- Tika Ramji v State of UP
- State of Kerala v. Mar Appraem Kuri
- In Tika Ramji, a law was passed by UP, U.P. Sugarcane (Regulation of Supply and Purchase)
Act of 1953.
- Using this law, UP govt could regulate supply and purchase sugarcane
- Parliament passes an amendment to a law called Industries (Development and RegulatiOn)
Act, 1951
- Certain industrial sectors would be regulated only by parliament
- Both derived power from 33 of Concurrent List
- One of these products notified as public interest was sugar
- Sec 18(g) under the union law, before notification of a industry that it has to be
published.
- Tika Ramji who was a sugarcane grower, since parliament has mentioned they wanted
to notify sugar, they had an intended occupation to occupy the entire field. Thus, UP
law won’t be applicable.
- SC didn’t accept this argument
- Just by stating there is an intention to pass a notification and no actual notification,
this cannot be said so. No factual notification is present
- Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within
the meaning of section 18-G of Act LXV of 1951, it is to be noted that no order was issued by the
Central Government in exercise of the powers vested in it under that section and no question of
repugnancy could ever arise because, as has been noted above, repugnancy must exist in fact and not
depend merely on a possibility. The possibility of an order under section 18-G being issued by the Cen
Government would not be enough. The existence of such an order would be the essential prerequisite
before any repugnancy could ever arise.
- However, in the second case, it was a completely opposite outcome
- There was a law in Kerela called Kerala Chitties Act 1975: Regulating Chit Funds
- There was a parliamentary law passed called Centrals Chit Funds Act, 1982.
- A peculiar thing was stated in the Act, §1(3) It shall come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint and different dates may be
appointed for different States
- Dispute arose whether the Union law would prevail over the Kerela
- The plaintiff said that I am bound by the union and not the Kerala law.
- Kerala stated that no official notifaction has been provided which is Kerala Specific
- This won’t apply in Kerela then.
- J. Kapadia says no
- Looks at Art 254(1) and (2).
- Word used is called “law made by the parliament”. The law has already been made.
Thus, your state law is already repugnant.

- Doctrine of territorial nexus- Art 245

- 245 deals only with the territorial extent of laws
- Not that important as ascribed by Subba Rao J.
- Converse of clause 2 is not true: any law which is extra territorial is always valid.
- This is where the doctrine comes in
- You have to develop a nexus between the State and the subject of the law i.e the
person in question, if there is a substantial nexus with India, it can have extra-
territorial application
- GVK Industries v Income Tax Officer
- 245(1): Look at the word ‘for’- general implication for something/someone
- There can be also another implication of ‘for’, doing it for someone’s benefit. Law
passed for the benefit of India, it could be said to be valid
- This is what the court said
- Eg: Taxation outside India between companies having substantial presence in India.
Can they be taxed? Because that would benefit India and these companies have a
substantial nexus in India.
- Income tax act thus have extra territorial application
- State of Bombay v RMD Chamarbaugwala
- Newspaper with office in Bangalore with significant presence in Bombay
- They had prize competitions. After solving the puzzle, deposit the puzzle at the both,
pay a sum, and then a lottery takes place
- Revenues from this competition was majorly coming from Bombay
- Bombay passed a law to tax this law
- Argument of non-competence to tax due to the company not being from bangalore
- SC states there is a clear nexus
- TISCO v. State of Bihar
- Bihar imposed a sales tax on TISCO for profits it earned all over India. SC said yes as
TISCO is based in Bihar. This is as there is a substantial nexus.

- EMERGENCY
- No emergency under Art 352 since 1975
- Politically, it would be a bad decision for a party
- Secondly, 44th Amendment brought significant changes brought in to render it largely
fruitless.
- Prior to 44th amendment, 3 grounds for imposition: internal disturbance, war and
external aggression
- 44th amendment- changed internal disturbance to armed rebellion
- Raised the threshold
- Other changes: 352(3) to (8) was inserted
- Clause 3- decision to proclaim has to be taken by the cabinet and has to be given in
writing to the president
- Procedural change: prior to 44, emergency could be proclaimed for 2 months before
ratification by simple majority in a parliament. Now, 2 months reduced to 1 month
and has to be ratified by 2/3rd majority
- This ratification needs to be renewed every 6 months, else it would be revoked
- Renewal again to be made by 2/3rd majority
- Even after ratification, even if 1/10th of the house feels that the emergency needs to be
revoked, within 14 days the emergency needs to be put to vote
- IMPACT OF 352
- Impact on government mechanism
- Art 250 should be kept in mind
- 353 centralised control
- Every aspect of governance is passed on to the Union government
- 354- Union starts to control the finances
- 256- issue non emergency direction. If state doesn’t follow that direction, 356 prez
rule can be imposed
- EFFECTS ON RIGHTS
- USED TO HAPPEN PRIOR 44TH AMENDMENT
- Articles 358 and 359- Art 19 stood automatically suspended
- 359- All “enforcement” of other FRs stood suspended
- Enforcement of right being suspended- You can go to the court after the emergency
gets over. But this is not the case when the right itself is suspended
- This question of suspension of enforcement of FRs came into the question in the
infamous case: ADM JABALPUR CASE
- There was MISA Act in force then
- Gov can randomly pick you up from home and be kept in custody as long as the
government wants
- Gov argued in the case that all FRs are suspended. How are the courts even issuing
directions of habeus corpus? They are going against the text of Art 359
- After amendment, in Art 358, armed rebellion is not even included now
- To suspend Art 19, there should be a law passed with recital stating that it is being
suspended for so and so reasons.
- 359 allowed suspension of FRs except Art 21 and 22.
- 352 doesn’t necessarily to be pan-India
- 355- Duty of Union to protect State- “internal disturbance” still exists
- Implication- It can still interfere within workings of the State
- This section was brought in the backdrop when there were doubts of the disintegration
of the State
- Here, the State and the State Government are not necessarily one and the same
- In the Sarbanal Sonowal case, filed a writ to declare IMDT act as unconstitutional
- Usually, in case of illegal migrants, a foreigner tribunals (foreigners act) tries these
people
- However, due to influx of migrants in Assam, this IMDT act had been imposed
- IMDT was challenged after migrants influx reduced and it made deportation even mor
difficult
- Justice Mathur struck this down on the grounds of violation 355
- Migration is External aggression and the Centre has failed in its duty since this law is
absolutely ineffective.
- Contention is how can a “duty” be used to strike down a law and also how is illegal
migration is equated with external aggression
- The rationale of the judgement was that the ineffectiveness of a law is equated with its
constitutionality.
- This is a flawed reasoning
- 356- President’s rule
- Triggers: Satisfaction of president
- Trigger of the satisfaction: 1. Report of the governor, 2. Or otherwise- this clause is
quite dangerous as it leaves quite a vast array of powers in the hands of the Union
- Impact- State government is dismissed, Prez takes over control. Control becomes
completely centralised.
- State Assembly may be in suspension or dissolved. Till Bomnai case it could have
been done immediately. Now ratification of parliament is required
- No such impact on the citizens except a change in governance.
- Art 356 one of the most abused article
- Very first time used on Punjab by Nehru himself
- State of Rajasthan v. UOI (1977) allows limited judicial review on the president’s rule
- Epuru Sudhakar factors could be used
- http://www.ebc-
india.com/lawyer/articles/94v3a1.htm#:~:text=Union%20of%20India%2C29%20a,an
y%20longer%20hold%20good%2230
- Soli Sorabjee’s comment on the article and the case
- SR BOMNAI CASE
- Appeals several compiled
- Background of Babri Masjid
- Even those four states of BJP Gov were dismissed
- SR Bomnai, CM of Karnataka was also dismissed along with other states
- One of the 4 BJP CMs, moved to Jabalpur HC. (CM of MP)
- Asking to exercise limited judicial review
- HC held that it was a mala fide decision
- Only common feature of all these decision was Art 356
- How SC approached 356?- Builds of the Rajasthan Case
- It has limited judicial review(refer to the Soli Sorabjee article)
- President's satisfaction has to be based on objective material and further that the objective material
available either from the Governor's report or from other information or both must indicate that the
government of the State cannot be carried on in accordance with the provisions of the Constitution.
Consequently, the validity of the proclamation issued by the President under Article 356(1) is judicially
reviewable to the extent of examining whether it was issued on the basis of any material
- at all or whether the material was relevant or whether the proclamation was issued in the mala fide
exercise of the power. Once such material is shown to exist, the satisfaction of the President based on
the material is not open to question.
- Basically, SC states that judicial review can be done of the materials presented.
Meaning, insufficiency of material cannot be used to justify mala fide.
- Judicial Review- “Extent of the materials produced”
- Though, it has also outlined several situations based on the recommendations of the
Sarkaria commission, dos and don’ts
- Criteria
- Sarkaria Commission
- The majority enjoyed by the Council of Ministers shall be tested on the floor of the House. Centre
should give a warning to the state and a time period of one week to reply.
- The court cannot question the advice tendered by the CoMs to the President but it can question the
material behind the satisfaction of the President. Hence, Judicial Review will involve three questions
only: a. Is there any material behind the proclamation b. Is the material relevant. c. Was there any
malafide use of power. If there is improper use of Article 356 then the court will provide remedy.
Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not
 take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not
dissolve the assembly. Article 356 is justified only when there is a breakdown of constitutional
machinery and not administrative machinery
- SITUATION WHERE 356 CAN BE LEGITIMATELY APPLIED (DOs)
- Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
Where the party having a majority in the assembly declines to form a ministry and the governor cannot
find a coalition ministry commanding a majority in the assembly.
- Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a
ministry commanding a majority in the assembly. Where a constitutional direction of the Central
government is disregarded by the state government. Internal subversion where, for example, a
government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
- Physical breakdown where the government willfully refuses to discharge its constitutional obligations
endangering the security of the state.
- SITUATIONS WHERE 356 CANNOT BE IMPOSSED (DONTs)
- Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor
recommends imposition of President’s Rule without probing the possibility of forming an alternative
ministry. Where the governor makes his own assessment of the support of a ministry in the assembly
and recommends imposition of President’s Rule without allowing the ministry to prove its majority on
the floor of the Assembly.
- Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the
general elections to the Lok Sabha such as in 1977 and 1980. Internal disturbances not amounting to
internal subversion or physical breakdown. Maladministration in the state or allegations of corruption
against the ministry or stringent financial exigencies of the state.
- Where the state government is not given prior warning to rectify itself except in case of extreme
urgency leading to disastrous consequences. Where the power is used to sort out intra-party problems
of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred
by the Constitution.
-