CONSTITUTIONAL LAW

OF INDIA
[PART-1]
(CONTAINING - MEANING AND SOURCE OF THE CONSTITUTION; UNION AND ITS TERRITORIES; FEDERALISM;
LEGISLATIVE, JUDICIAL AND EXECUTIVE POWERS; EMERGENCY; TRADE AND COMMERCE; AND, AMENDMENT
OF CONSTITUTION)

by
Dr. ASHOK K. JAIN
LL.M; Ph.D (Delhi)

Foreword
by J.D.
Jain
Former Judge, Delhi High Court
Senior Advocate, Supreme Court

Ascent Publications
21/29, Shakti Nagar, Delhi-110007
he recent
jst retion,
:nt of the
CONTENTS
CHAPTERS

1. Introduction 1-3
1.1 Constitution and Constitutionalism 1
1.2 Source of the Constitution : The Preamble 2
(i) Utility of Preamble 3
(ii) Amendment of Preamble 3
>f all the 2. The Union and its Territories (Arts. 1-4) 4-10
:s all the 3. Character of the Union - States Relationship :
peculiar
The Concept of Federalism 11-17
itution of
4. Union and State Powers: Legislative Powers
in favour
(Arts. 245-254) 18-55
tble y to
4.1 Territorial Legislative Jurisdiction (Art. 245) 19
test i ial
4.2 Distribution of Legislative Subjects (Art. 246) 22
(a) Interpretation of legislative lists
le Indian (i) Plenary power and power to make retrospective and
ilaincd in validating Legislation 22
this book (ii) /Liberal and Harmonious Construction 24
e helpful (iii) Ancilliary and Incidental PoWers 29
ie Indian (iv) Pith and Substance Rule 31
ns as the (b) Residuary Powers (Art. 248) 34
leoretical (c) Repugnancy between Union and State Laws (Art. 254) 34
manner, 4.3 An Analysis of Distribution of Legislative Powers 42
leant for 5. Union and State Powers : Judicial Powers
lose who (Arts. 32 and 226) 56-75
Services, 5.1 Nature of Judicial Power 56
5.2 Judicial Review of Legislation 56
5.3 Limits of Judicial Review - Scope of Arts. 32 and 226 58
scholary
(a) Standing and Public Interest Litigation 59
fovisions
shall be
(b) Judicial Activism 65
6. Union and State Powers : Executive Powers (Arts. 72-75,77,78,
123,161-164,166,167,
213,256-258-A, 309-311,352-361,365) 76-110
6.1 N
ature and Extent of Executive Power 76
(a) Relation between President and Council of
Ministers (Arts. 73-79) 77
(b) Position of the Governor (Arts. 162-164, 166, 167) 85
 6.2 Legislative Power of the Executive : Ordinance-making powei
(Arts. 123, 213) 89
6.3 Judicial Power of the Executive : Pardon etc.
(Arts. 72 and 161) 91
6.4 Privileges of President (Art. 161) 93
6.5 Union Executive Power in relation to States :
Emergency, President's Rule, etc. (Arts. 256-258-A.
355,356,365) 93
7. Freedom of Trade, Commerce & Intercourse
(Aits. 301-307) 111-130
7.1 Art. 301 : Freedom of Trade, Commerce, etc. Ill
7.2 Restrictions on Trade and Commerce 116
7.3 Part XIII of Constitution : Difficulties in interpretation 124
8. Amendment (Art. 368) 131-
147
8.1 Are Fundamental Rights Amendable ? 133
8.2 Scope of Amending Power of Parliament 140
(a) Art. 368 as it stands today 140
(b) Doctrine of Basic Features as it stands today 141
(c) Replacement of the Existing Constitution 143
References 148
i
 LEST OF CASES
A.H. Wadia v CIT ........... .................. 19, 21
A.K. Gopalan v State of
Madras................ ..; ...................... 57, 112
A.K. Roy v Union of India ...........................90
A.K. Sabhapathy v State of Kerala ....38
A. S.................. Krishna v State of Madras
31
Abdul Qader v S.T.O., Hyderabad .............30
Additional District Magistrate,
Jabalpur v Shivkant ..................................101
All India Judges Asscn. v U.O.1 ..................66
Amrit Banaspati Co. v UOI .......................118
Andhra Steel Corpn. v C.C.T....................119
Andhra Sugars Ltd. v State of AP.. 130
Ashbury v Ellis .............................................21
Associated Tanners v C.T.O......................119
Atiabari Tea Co. case........... 113, 115, 125
Automobile Transport Ltd. v State of
Rajasthan ............................. 113, 115, 126
B. Sundaresan v State of Kerala ............. 122
B.A. Jayaram v Union of India .................116
Babulal Parate v State of Bombay... .............5
Raijnath v State of Bihar........................ .’*37
Bandhua Mukti Morcha v Union
of India ............... ........................................62
Bangalore Woollen Mills v Corpn.
of Bangalore ...............................................123
Bejoy Lakshmi Cotton Mill’s case ..............86
Bliim v UOI ................................................146
Calcutta Gas Co. v State of West
Bengal ...........................................................25
Central Coal Fields v Jaiswal
Coal Co .......................................................146
Clyde Engg. Company Ltd. v
Cowbum .......................................................39
Croft v Dunphy ............................................21
D.C. Wadhawa v State of Bihar ..................90
Daryao v State of U P. .................................69
Deep Chand v State of U.P. .........................36
Dehradun Quarrying case ...........................65
Delhi J.S.A. v State of Gujarat ..................146
Dinesh Chandra v Chaudhury
Charan Singh ...............................................82
Dr. B.L. Wadhera v UOI .............................66
Dr. Upendra Baxi v State of
Uttar Pradesh ...............................................60
Dy. Collector v Ibrahim & Co...................117
Electronics Corpn., India v C.I.T. ..............21
Express Hotels v State of Gujarat... 114
CONSTITUTIONAL LAW - I SUPPLEMENT
Fateh Chand v State of Maharashtra .42
Fertiliser Corporation Kamgar
(Union) v Union of India ............................. 62
Firm Mehtab Majid v State of
Madras ...................................................... 119
Francis Corali’s case ................................... 63
G.C. Kanungo v State of Orissa ..35, 43 G.K.
Krishnan v State of T.N. 113, 115 Gauri
Shankar Gaur v State of U.P. ...35
Ghulam Sarwar v UOI ........ ...................... 70
Golak Nath v State of Punjab ................... 133
Gujarat University v Shri Krishna ............. 26
Hari Krishna Bhargava v UOI ................... 50
Hoechst Pharm Ltd. v State of
Bihar.................................................38, 55
I.N. Saxena v State of M.P. ......................... 44
In Re Berubari Union and Exchange
of Enclaves .................................................... 6
In re under Article 143 ................................ 17
In the matter of Cauvery Water
Disputes Tribunal ..............................43,51
India Cement v State of AP.. 119, 129
Indira Gandhi v Raj Narain ..................... 136
International Tourism Corp. v State
of Haryana .................................... 53, 114
J.K. Jute Mills v State of U.P. ..................... 23
J.M. Desai v Roshan Kumar ....................... 60
Jalan Trading v Mill Mazdoor Sabha.48
Janan Prosanna Das Gupta v
Province of W.B ........................................... 90
Jilubhai Nanbhai v State of Gujarat. 146
Joseph v State of Kerala .............................. 70
Jumma Khan v State of U.P....................... .93
K.C.G. Naravan Deo v State of
Orissa ....... .................................................. 48
K.M. Nanavati v State of Bihar..45, 92 K.T.
Moopil Nair v State of Kerala ..49
Kalyani Stores v State of Orissa ............... 120
Kan nan Devan Hill Produce Co-.
Ltd. v State of Kerala ................................ ..42
Kanti Lai v H.C. Patel ................................. 30
Karamjeet Singh v UOI ............................ 6 8
Kartar Singh v State of Punjab....32, 50
Kehar Singh , UOI ..................................... 9 2
Keshavanand Bharati v State of
Kerela ............................................. ........... 134
Khyerbari Tea Co. v State of AM am
................................................ 21, 123, 130
 2007

[I] Union and its Territories

In Ram Kishore Sen v UOI (AIR 1966 SC 644) it was held that the advisory opinion
given by the apex court in Re Benibari Union and Exchange of Enclaves (AIR 1960
SC 858) was binding.
After receipt of the advisory' opinion in Re Berubari case, the Parliament
passed the Constitution (91h) Amendment Act, 1960 to give effect to the Indo-Pak
Agreement. The validity of the amendment was challenged alleging that the language
of it insofar as it related to Berubari Union No. 12 was confusing and incapable of
implementation. It was also contended that the transfer of Berubari Union would
result in deprivation of citizenship and property without compensation.
In N. Masthan Sahib v Chief Commr., Pondicherry (AIR 1962 SC 797), the
Apex Court held that the expression ‘acquired’ [Art. 1 (3)(c)] should be taken to be a
reference to ‘acquisition’ as understood in public international law. If there was any
public notification, assertion or declaration by which the Government of India had
declared or treated a territory as part and parcel of India, the courts would be bound to
recognize an ‘acquisition’ as having taken place, with the consequence that the
territory would be part of the territory of the Union within Art. 1 (3)(c). A statement
by the Government of India that it did not consider a particular area to have been
acquired by it is binding on the Court.

[II] Federalism
State of Haryana v State of Punjab (AIR 2002 SC 685)
In this case, the apex court discussed the concept of Federation and the federal
character of India. In this case, the State of Hary&na filed a suit for issuance of a
mandatory injunction to the State of Punjab and/ or the Union of India to complete
construction of the unfinished Sutlej Yamuna Link Canal. It was held that it was
indeed for the Central Government to see that the canal is excavated and the
recalcitrant State should have been prevailed upon.
The court observed'. In a semi-federal system of Government, which has been
adopted under the Indian Constitution, all the essential powers, both

[S-1]
 S-2 Constitutional Law-1: Supplement 2007

legislative and executive have been conferred upon the Central Government. True
Federalism means the distribution of powers between a Central Authority and the
Constituent Units.
Dicey’s concept of federalism is a national Constitution for a body of States,
which desire union and do not desire unity. According to him, a federal State is a
political contrivance intended to reconcile national unity and powers with the
maintenance of the State rights. The essence of a federation is, therefore, existence of
a Union and its States and the division of power between the Union and the States.
Political integrity of the Union and each State seems to be essentia! to the federal
concept. Authors, therefore, described our Government to be one federal in structure
but somewhat unitary in spirit.
In this case, the Supreme Court also held that the decision of one Government
relating to governance of a State or its execution would bind the successor
government when it does not involve any political philosophy. The successor
Government must complete the unfinished job.
Deprecating the “vote bank” politics, it observed: The Constitution conceives
of a Government to be manned by the representatives of the people, who get
themselves elected in an election. The decision taken at the governmental level
should not be so easily nullified by a change of Government and by such other
political party assuming power, particularly when such a decision affects some other
State and the interest of the nation as a whole. It cannot be disputed that so far as the
policy is concerned, a political party assuming powsr is entitled to engraft the
political philosophy behind the party, since that must be held to be the will of the
people.
Kuldip Nayar v Union of India (AIR 2006 SC 3127)
Facts and Issue - In this case, the petitioners challenged the Representation of the
People (Amendment) Act, 2003 by which the requirement of “domicile” in the State
concerned for getting elected to the Rajya Sabha was deleted, which according to
them violated the principle of federalism, a basic feature of the Constitution.
Observations and Decision - The Supreme Court held that it is no part of federal
principle that the representatives of the States must belong to that State. There is no
such principle discernible as an essential attribute of federalism, even in the various
examples of the Upper Chambers in other countries. Residence is not the essence of
the structure of the Upper House; the latter will not collapse if residence as an
element is removed. If the Indian Parliament, in its wisdom has chosen not to require
a residential qualification, it would definitely not violate the basic feature of
federalism. Our Constitution does not cease to be a federal Constitution simply
because a Rajya Sabha Member does not “ordinarily reside” in the State from which
he is elected.
The court observed: The nature of federalism in the Indian Constitution is no
longer res integra (matter not yet decided). There can be no quarrel with the
proposition that the Indian model is broadly based on a federal form of governance but
with a tilt towards the Centre. Under strict federalism, the Lower House (“the people”) and
the Upper House (“Union” of the federation) have equal legislative and financial powers.
However, in the Indian context, strict federalism was not adopted. The Indian Union has
 Constitutional Law- /. Supplement 2.007 S-3

been described as the “holding together” of different areas by the Constitution-framers,

unlike the “coming together” of constituent units as in the case of the USA and the
confederation of Canada.
The Constitution does incorporate the concept of federalism in various provisions.
The provisions which establish the essence of federalism i.e. having States and a Centre,
with a division of functions between them with sanction of the Constitution include,
among others, Lists II and III of the Seventh Schedule that give plenary powers to the
State Legislatures; the authority to Parliament to legislate in a field covered by the States
under Art. 252, only with the consent of two or more States; the competence of
Parliamentto legislate in matters pertaining to the State List, only for a limited period,
under Art. 249, “in the national interest”, and, under Art. 258 (1) to entrust a State
Government (with the Governor’s consent) functions in relation to which executive
power of the Union extends; decentralization of power through 73rd and 74th
Amendments; etc.
Thus, though the federal principle is dominant in our Constitution and that
principle is one of its basic features, but, it is also equally true that federalism leans in
favour of a strong Centre or “unitary power” (viz. Emergency powers, President’s Rule
under Art. 356, Art. 249 and 251, All-India Services, Single citizenship, Parliament’s
power under Art. 3, etc.). Art. 251 when read with Art. 249, in effect, permit the Rajya
Sabha to encroach upon the specified legislative competence of a State Legislature by
declaring a matter to be of national importance. Though it may have been incorporated as
a safeguard in the original constitutional scheme, this power allows the Union
Government to interfere with the functioning of a State Government, which is most often
prompted by the existence of opposing party affiliations at the Central and State levels.
The court held: India is not a federal State in the traditional sense of the term. In
the context of India, the principle of federalism is not territory related. This is evident
from the fact that India is not a true federation formed by agreement between various
States and territorially it is open to the Central Government under Art. 3 of the
Constitution, not only to change the boundaries, but even to extinguish a State. Further,
when it comes to exercising powers, they are weighed heavily in favour of the Centre, so
much so that various descriptions have been used to describe India such as pseudo-
federalism or quasi-federation in an amphibian form, ctc.

[Ill] Distribution of Legislative Powers

Autonomy to Centre and States (Legislative Powers'
In Javed v State of Haryana [JT 2003 (6) SC 283], the apex court upheld the
constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which
disqualified a person for holding office of Sarpanch or a Panch of a Gram Panchayat, etc.
if he had more than two living children, though a similar provision was not found to have
been enacted by the Parliament or other State Legislatures.
Rejectingthesubmissionthatpeopleaspiringtoparticipatein Panchayati Raj
governance in the State of Haryana had been singled out and meted out hostile
discrimination, the apex court observed: The Union Parliament and every State
Legislature have power to make laws with respect to any of the matters which fall within
their field of legislation under Art. 246 read with Seventh Schedule of the Constitution.
 g_4 Constitutional Law- I: Supplement 2007

The Constitution gives autonomy to the Centre and the States within their respective
fields. Thus, a legislation by one of the States cannot be held to be discriminatory or
suffering from the vice of hostile discrimination as against its citizens simply because the
Parliament or the Legislatures of other States have not chosen to enact similar laws. The
court ruled that it was not permissible to compare a piece of legislation enacted by a State
in exercise of its own legislative power with the provisions of another law, though pari
materia it may be, but enacted by Parliament or by another State Legislature, within its
own power to legislate.
In State ofM.P.vG.C. Mandawar (AIR 1954 SC 493), it was held that two laws
enacted by two different governments and by two different Legislatures could be read
neither in conjunction nor by comparison for the purpose of finding out if they were
discriminatory.
In Prof Yashpal v State of Chhattisgarh [(2005) 5 SCC 420; AIR 2006 SC 2026], a
PIL was filed on account of the deterioration in quality of education because of
mushroom growth of self-financed private universities in State of Chhattisgarh. It was
averred that after coming into force of the Chhattisgarh Niji Kshetra Vishwavidhyalaya
(Sthapana aur Viniyaman) Adhiniyam, 2002, the State Government had by simply issuing
notifications established universities in an indiscriminate and mechanical manner without
having the slightest regard to the availability of any infrastructure, teaching facility or
financial resources.
The Supreme Court held: The expression “established or incorporated” in Secs.
2(f), 22 and 23 of the UGC Act, 1956, has to be read conjunctively as “established and
incorporated” insofar as private universities are concerned. An enactment which simply
clothes a proposal submitted by a sponsoring body or the sponsoring body itself with
juristic personality of a university so as to take advantage of Sec. 22, UGC Act so that it
may confer academic degrees, but without having any infrastructure or teaching facility
for higher studies or research is not contemplated by either (State) List II Entry 32 or
(Concurrent) List III Entry 25. Hence, Secs. 5 and 6 of the State Adhiniyam were
declared wholly ultra vires being a fraud on the Constitution.
The court further held: In spite of incorporation of‘universities’ as a legislative
head in the State List under Entry 32 thereof, the whole gamut of the university, which
include teaching, quality of education being imparted, curriculum, standard of
examination and evaluation and research, will not come within the purview of the State
Legislature on account of specific entry List I Fntry 66 being in the Union List for which
the Parliament alone is competent. It is the responsibility of the Parliament to ensure that
proper standards are maintained in institutions for higher education or research
throughout the country and also uniformity in standards is maintained. Education
involves a continuous interaction between the teachers and the students. The base of
teaching, the level to which teaching can rise and the benefits which students ultimately
receive depends as much on the calibre of students as on the calibre ofteachers and the
availability of adequate infrastructural facilities.
Doctrine of Harmonious Construction

ITC Ltd. v Agricultural Produce Market Committee (AIR 2002 SC 852)

In this case, Entry 52 of List I and Entries 14 and 28 of List II of Schedule VII were in
question. The Centre enacted theTobacco Board Act, 1975 and thereby taken over all the
 Constitutional Law- /. Supplement 2.007 S-5

matters concerning Tobacco. The Central (Union) List permits the Centre to enact law
pertaining to specified “industry” and the State List empowers State to legislate on
agriculture and sale by enactment of Agriculture Produce Markets Act.
It was held that a harmonious construction is to be made between the two
respective spheres of “jurisdiction” and when so construed the “growing” and “sale” to
come to States and the rest of it to go to the Centre. The word “industry” includes only
process of manufacture or production but does not include processes antecedent thereto
such as disposal of finished product of that industry. The Parliament is not competent to
legislate in respect of such antecedent or subsequent process. Thus, levy of market fees
under the Agricultural Produce Markets Act by the State was valid.
The apex court observed:
(i) The various entries in the three lists of the 7th Schedule are not powers of
legislation but the “fields of legislation”. The entries (or Art. 246) do not
provide competence or power to legislate to the legislature. Competency to
legislate has to be traced to the Constitution.
(ii) If it is found that some of the entries overlap or are in conflict with the other,
an attempt to reconcile such entries and bring about a harmonious
construction is the duty of the court. When, however, reconciliation is not
possible, then the court will have to examine the entries in relation to
legislative power in the Constitution.
(iii) The rules relating to the distribution of legislative power under Art. 246
constitute the heart of the federal scheme of the Constitution. But the
Constitution makers having found that the need for power-sharing devices
between the Centre and the State
 S-6 Constitutional Law- I: Supplement 2007

must be subordinated to the imperatives of the State’s security and stability,

propelled the thrust towards centralization and by using non obstante clause
under Art. 246 the federal supremacy is achieved {per Pattanaik, J.).
(iv) The Constitution of India deserves to be interpreted, language permitting, in a
manner that it does not whittle down the powers of the State Legislature and
preserves the federalism While also upholding the Central supremacy as
contemplated by some of its articles (per Sabharwal, J.).
(v) The entries in the lists should be read together without giving a narrow or
restricted meaning to any of them. Powers of the Union and the state
Legislatures are both expressed in precise and in definite terms, and therefore,
there can be no reason in such a case in giving broader interpretation to one
rather than to the other (per Pattanaik, J.).
(vi) The entries in the Legislative Lists have to be construed in the widest sense
cannot be disputed but it has also to be borne in mind that such construction
should not make other entries totally redundant. An interpretation which tends
to have the effect of making a particular entry subject to any other entry,
though not so stated in the entry, deserved to be avoided unless that be the
only possible interpretation (per Sabharwal, J.).
(vii) An absolute or watertight compartmentalization of heads of subject for
legislation may not be possible but at the same time entrenching into the field
of another entry cannot mean its total sweeping off even though it may be in
the exclusive list of heads of subjects for legislation by the other legislature
(per Brijesh Kumar, J.)]. i--
Doctrine of Pith and Substance
In State of Karnataka v Drive-In Enterprises (AIR 2001 SC 1328), the levy of tax in respect
of“drive-in-cinema” was in issue. Adrive-in cinema means a cinema with an open-air
theatre premises into which admission may be given normally to persons desiring to view
the cinema while sitting in motorcars. The State, in addition to charging entertainment tax
on persons being entertained, levied entertainment tax on admission of cars inside the
theatre. The question arose whether the State Legislature was competent to enact law to
levy tax under Entry 62, List II of the 7"' Schedule on admission of cars/ motor vehicles
inside such theatre. Entry 62 empowers the State Legislature to levy tax on “luxuries,
entertainment, amusements, betting and gambling”.
The apex court held that what is to be found out is the real nature of levy, its pith
and substance and it is in this light the competency of the State Legislature is to be
ad'udged. The doctrine of‘pith and substance’ means that if an enactment substantially falls
within the powers expressly conferred by the Constitution upon the Legislature, it cannot
be held to be ultra vires merely because its nomenclature shows that it encroaches upon
matters assigned to another heading of legislation.
In the present case, the real nature and character of impugned levy is not on the
admission of cars/ motor vehicles, but the levy is on the person entertained who takes the
car inside the theatre and watches the film sitting in his car. Tluis, in pith and substance,
the levy is on the person who is entertained and it is wholly immaterial in what name and
form it is imposed. The word “entertainment” js wide enough to comprehend in it the
luxury or comfort with which a person entertains himself. Once it is found that there is a
 Constitutional Law- /. Supplement 2.007 S-7

nexus between the legislative competence and subject of taxation, the levy is justified and
valid.
In State of Rajasthan v Vatan Medical & General Store (AIR 2001 SC 1937), it was
held that once the impugned enactment is within the four corners of the entries in List II
(State List), no Central Law whether made with respect to an entry in List I or in List III
can affect the validity of such State enactment. The argument of occupied field is totally
out of place in such a context.
The said argument proceeds upon wrong premises that once a field is covered by
Central Legislation referable to List I, the power of the State Government to legislate in
the field covered by an entry in List II is taken away without dealing with the doctrine of
pith and substance and by ignoring the well-settled position of law that the doctrine of
covered field has to be applied only to entries in List III (vide Me Dowell & Co. case, AIR
1996 SC 1627). The court further held that once an enactment, in pith and substance, is
relatableto Entry 8 in List II or for that matter any other entry in List II, Art. 246cannot be
brought into to hold that State Legislature is not competent to enact that law,
In State ofA.P. v K. Purushotham Reddy (2003) 9 SCC 564, it was held that only
when the State legislation cannot coexist with the Central legislation, the former may be
declared ultra vires. The court should so construe the statute as to uphold its
constitutionality. The entries in Sch. VII should be interpreted in a broad manner. On a
conjoint reading of Entry 66 ofList I and Entry 25 ofList III, it is clear that although the
State has a wide legislative field to cover, the same is subject to Entries 63-66 ofList I.
Once, thus, it is found that any State legislation does not entrench upon the legislative
field set apart by Entry 66 List I, the State Act cannot be invalidated.
In the case in hand, the A.P. State Council ofHigher Education Act, 1988, set up a
State Council for higher education. The duties and functions of the Council are
compartmentalized and it has to act in accordance with the guidelines issued by Central
UGC. It has to assist UGC in respect of determination and maintenance of standards and
suggest remedial measures for higher education in State. It has no power to act in the
sphere of coordination and determination of standard of institutions of higher education
and research and technical institutions as an independent body. The State Act does not
encroach upon the
Central field and is within the legislative competence of State Legislature. The Act is also
not a colourable piece of legislation.
Doctrine of Colourable Legislation
In S.S. Bolav B.D. Sardana (AIR 1997 SC 3127), the apex court held: Colourable
legislation is one where the legislature has no power to legislate on an item either because
of its non-inclusion in the lists in Seventh Schedule, or on account of limits in view of the
fundamental rights or any other constitutional power or in violation of principle of basic
structure of the Constitution. If on an examination of the Act, the court finds that the
legislature has travelled beyond its power or competence or transgresses the limits
imposed by the Constitution itself, such an enactment is called ‘colourable legislation’.
In other words, it has a reference to the legislative incompetence and not to the
power of the legislature as such. If the legislature enacts the law in the pretext of the
exercise of the legislative power though actually it does not possess such power, the
legislation to that extent either is void or becomes voidable on a declaration to that effect
 S-8
by a constitutional court (Supreme Court Constitutional
and HighLaw- I: Supplement
Court). 2007therefore, be said
It would,
that the legislature enacts the law in purported colourable exercise of its power.
Residuary Power of Legislation
In State of A. P. v National Thermal Power Corpn. Ltd. (AIR 2002 SC 1895), it was held
that if an entry dose not spell out an exclusion from the field of legislation discernible on
its apparent reading, the absence of exclusion cannot be read as enabling power to
legislate in the field not specifically excluded, more so, when there is available a specific
provision in the Constitution prohibiting such legislation.
In the present case, Entries 53 and 54 ofList-II and Entry 92-A, List-I were in
question. It was held that the expression “sale of electricity” in Entry 53 means sale for
consumption of electricity. The consumption or sale for consumption in Entry 53,
however, refers to consumption within, and not beyond, the territory of the State. Any
other sale of electricity would be subject to the provisions of Entry 92-A, List-I. A tax on
the sale or purchase of goods including electricity but excluding newspapers shall fall
within Entry 54 and shall be subject to provisions of Entry 92-A, List I.
Doctrine of Repugnancy
In Kanaka Cruha Nirman Sahakara Sangha v Narayanamma (2003) 1 SCC 228, it was
held that if there is no repugnancy between the State and Central Law, there is no
question of application of Art. 254 (1) and both the Acts would prevail. Repugnancy
between two statutes may be ascertained by considering whether the Parliament intended
to lay down an exhaustive code in respect of the subject matter replacing the Act of the
State Legislature. Where the paramount legislation does not purport to be exhaustive or
unqualified, there is no inconsistency, and it cannot be said that any qualification or
restriction introduced by another law is repugnant to the provision in the main or
paramount law. 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.
The Apex Court has narrowed down the scope of repugnancy (between the Union
and State law) only to the situations of direct conflict and occupied field or operation in
the same field. In S. Satyapal Reddy v Govt, of A. P. (1994)4 SCC 391, it was held that
“unless State law is fully inconsistent and absolutely irreconcilable it would not be correct
to conclude that repugnancy renders the State law void”.
Kaiser-i-Hind (P) Ltd. v National Textile Corpn.
(AIR 2002 SC 3404)
In this case, Art. 254 (2) was in issue and the question was over what type of Central laws
a State legislation reserved for consideration of President and receiving his assent would
prevail. It was held that it prevails only qua such of Central laws on matters falling in the
Concurrent List for which repugnancy was pointed out and assent of President was sought
for in the proposal made by the State Government and not qua other Central Laws. Before
obtaining the President’s assent, the State Government had to point out that the State law
was in respect to one of the matters enumerated in the Concurrent List and that it
contained provisions repugnant to the law made by the Parliament or existing law.
The court further held: The words “reserved for consideration” in Art. 254(2)
would definitely indicate that there should be active application of mind by the President
to the repugnancy pointed out and the necessity of having such a law in facts and
 Constitutional Law- /. Supplement 2.007 S-9

circumstances of the matter.

The word “consideration” would manifest that ater careful thinking over and due
application of mind regarding the necessity of having State law, the President might grant
assent. The use of the word “assent” further reaffirmed that Art. 254(2), implied
knowledge of the President to the repugnancy between the State law and the earlier law
made by the Parliament on the same subject matter and the reasons for the grant of such
assent.
The apex court then held that the power exercised by the President under Art.
254(2) is a special constituent power vested with the Head of the Union, as the protector
and defender of the Constitution and the safety valve to safeguard the Fundamental
Rights and the federal structure of the country’s polity. The power exercised by the
President is a part of legislative procedure and not an exercise of legislative power (as
under Art. 123). Hence, whether the constitutional procedure before enacting the law has
been followed or not can always be examined by the court.
 S-10 Constitutional Law- I: Supplement 2007

[IV] Judicial Powers

Power of Judicial Review
L. Chandra Kumar v Union of India (AIR 1997 SC 1125)
In this case the impact of Arts. 323-Aand 323-B (under which the Tribunals were created)
on the power of the judicial review and superintendence of the High Courts (under Art.
226) and of Supreme Court (under Art.32) was in question. The clause 2(d) of Art.323-A
and clause 3(d) of Art.323-B to the extent they exclude the jurisdiction of the High Court
and the Supreme Court were held to be unconstitutional. It was held that the jurisdiction
conferred upon the High Courts under Arts.226/227 and upon the Supreme Court under
Art.32 is part of the inviolable basic structure of the Constitution of India. While this
jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental --
as opposed to a substitutional - role in discharging the powers conferred by Arts.226/227
and 32 of the Constitution.
The Supreme Court held that “judicial review is a basic and essential feature of the
Constitution”. The Court observed as follows:
(i) The origin of the power of judicial review of legislative action may well be
traced to the classic enunciation of the principle by Chief Justice John
Marshall of the US Supreme Court in Marbury v Madison. So when the
Framers of our Constitution set about their monumental task, they were well
aware that the principle that courts possess the power to invalidate duly-
enacted legislations had already acquired a history of nearly a century and a
half.
(ii) Broadly speaking, judicial review in India comprises three aspects: judicial
review of legislative action, judicial review of judicial decisions and judicial
review of administrative action. The judges of the superior courts have to
ensure that the balance of power envisaged by the Constitution is maintained
and that the legislature and the executive do not, in the discharge of their
functions, transgress constitutional limitations. It is equally their duty to
oversee that the judicial decisions rendered by those who man the subordinate
courts and tribunals do not fall foul of strict standards of legal correctness and
judicial independence.
(iii) The Constitution of India while conferring power of judicial review of
legislative action upon the higher judiciary, incorporated important
safeguards. An analysis of the manner in which the Framers of our
Constitution incorporated provisions relating to the judiciary would indicate
that they were very greatly concerned with securing the independence of the
judiciary. These attempts
 Constitutional Law- /. Supplement 2.007 S-11

were directed at ensuring that the judiciary would be capable of effectively

discharging its wide powers of judicial review.
(iv) The statement of Dr. Ambedkar in the Drafting Committee of the Constituent
Assembly that Art.32 was the “most important” article and that “it is the very
soul of the Constitution and the very heart of it” has been specifically
reiterated in several Supreme Court’s decisions. So also the power of
constitutional courts in India in respect of judicial review of legislative action
has been affirmed in several decisions.
(v) The Supreme Court has always considered the power of judicial review
vested in the High Courts and in the Supreme Court under Arts.226 and 32
respectively, enabling legislative action to be subjected to the scrutiny of
superior courts, to be integral to our Constitutional scheme. While several
judgments have made specific references to this aspect [Gajendragadkar, CJ.
in Keshcrv Singh case; Beg, J. and Khanna, J. in Kesavananda Bharati case;
Chandrachud, CJ. and Bhagwati, J. in Minerva Mills; Chandrachud, CJ. in
Fetilizer Kamgar; K.N. Singh, J. in Delhi Judicial Service Asscn.; etc.] the
rest have made general observations highlighting the significance of this
feature.
(vi) Therefore, the power ofjudicial review is an integral and essential feature of
the Constitution, constituting part of its basic structure. Ordinarily, therefore,
the power of High Courts and the Supreme Court to test the constitutional
validity of legislations can never be ousted or excluded.
Further, the power vested in the High Courts to “exercise judicial superintendence
over the decisions of all courts and tribunals within their respective jurisdictions” is also
part of the basic structure of the Constitution. This is because a situation where the High
Courts are divested of all other judicial functions apart from that of constitutional
interpretation, is equally to be avoided.
Curative Petition
A curative petition is a petition filed, for reconsideration of a final judgment/ order,
passed by the Supreme Court, after exhausting the remedy of review under Art. 13 7.
Rupa Ashok Hurra v Ashok Hurra
(AIR 2002 SC 1771)
In this case, a 5-Judge Constitution bench held that although a writ petition under Art. 32
against a final judgment/ order of the Supreme Court after disposal of review petition is
not maintainable yet the Court can, in rarest of rare cases, reconsider its final judgment to
prevent abuse of process of the court to cure a gross miscarriage of justice.
The apex court observed. Though Judges of the highest court do their best, subject
of course to the limitation of human fallibility, yet situations may arise in the rarest of the
rare cases, which would require reconsideration of a final judgment to set right
miscarriage ofjustice complained of. In such case it would not only be proper but also
obligatory both legally and morally to rectify the error....it is essentially in public interest
that a final judgment of the final court in the country should not be open to challenge yet
there may be circumstances....wherein declining to reconsider the judgment would be
oppressive to judicial conscience and cause perpetuation of irremediable injustice.
The role of judiciary merely to interpret and declare the law has been said to be the
 S-12 Constitutional Law- I: Supplement 2007
concept of by-gone age. It is now fairly settled that the courts can so mould and lay down
the law, formulating principles and guidelines, as to adapt and adjust to the changing
conditions of the society, the ultimate object being to dispense justice.”
As regards the requirements to entertain a curative petition, under the inherent
power of the apex court, so that flood gates are not opened for filing a second review
petition as a matter of course in the guise of a curative petition, the court said that it was
neither advisable nor possible to enumerate all the grounds on which such a petition
might be entertained. There must, however, exist very strong reasons and that curative
petition ought to be treated as a rarity.
A petitioner would be entitled to relief ex debitojustitiae if he establishes:
(i) violation of principles of natural justice, and (ii) non-disclosure on the part of the
Judge of his connection with the subject matter or parties giving scope for apprehension
of bias and that the judgment adversely affected the petitioner. The petition must state
that the grounds mentioned therein had been taken in the review petition and the same
was dismissed by circulation. Moreover, the petition must be certified by a Senior
Advocate, with regard to the fulfilment of the said requirements.
The apex court also observed: In the recent years there is a discernible shift in the
approach of the final courts in favour of rendering justice on the facts presented before
them, without abrogating but bypassing the principle of finality of the judgment. The
concern of the highest court for rendering justice in a cause is not less important than the
principle of finality of its judgment. It is now time that procedural justice system should
give way to the conceptual justice system and efforts of the law courts ought to be so
directed.]
In Zakarius Lakra v (70/(AIR 2005 SC 1560), the Rupa Ashok Hurra case was
followed. A writ petition was filed before the Supreme Court for quashing the death
sentence, imposed on petitioner’s son by the trial court and confirmed by the High Court
and in appeal by the Supreme Court. A school certificate was produced as additional
evidence in support of the ground that the convict was juvenile at the time of commission
of the offence. In review petition earlier filed by the appellant, this ground was stated to
have not been noticed while dismissing the petition. It was held that the writ petition
under Art. 32 was not maintainable. The appropriate remedy is only to file a curative
petition.
Right to Constitutional Remedies (Art. 32)
In P.N. Kumar v Municipal Corpn. of Delhi (1987) 4 SCC 609, a two-judge Bench of the
Supreme Court held that the citizens should not come to the court directly for the
enforcement of their fundamental rights, but they should first seek remedy in the High
Courts and then if the parties are dissatisfied with the High Court’sjudgment, they can
approach the Supreme Court by way of appeal.
In this case, the petitioner challenged the imposition of various taxes on their
Hotel. Disposing the petition the apex court laid down foWow'mgguidelines for the
exercise of the right under Art. 32:
(i) The scope of Art. 226 is wider than Art. 32.
(ii) Hearing of the case at the level of High Courts is more convenient to the
parties. It saves lot of time.
(iii) The High Court has its own tradition and eminent Judges/ lawyers.
 Constitutional Law- /. Supplement 2.007 S-13

(iv) The Supreme Court’s workload is too much with cases pending before it for
the last 10-15 years.
Similarly, in Kanubhai Brahmbhatt v State of Gujarat (AIR 1987 SC 1159), the
apex court directed the petitioner to first seek remedy in the High Court. Courts and
Enactment/ Enforcement of Laws
In Vineet Narain v UOI (AIR 1998 SC 889), the Supreme Court observed: “There are
ample powers conferred by Art. 32 read with Art. 142 to make orders which have the
effect of‘law’ by virtue of Art. 141 and there is mandate to all authorities to act in aid of
the Court’s orders as provided in Art. 144. The Court can issue necessary directions (in
exercise of its constitutional obligations) to fill the vacuum till such time the legislature
steps in to cover the gap or executive discharges its role. In this case, the Supreme Court
used this power for laying down comprehensive methodology for the appointment of
Central Vigilance Commissioner (C VC) and the Director of CBI.
In UOI v Prakash P. Hinduja (AIR 2003 SC 2612), however, It was held that
Parliament exercises sovereign power to enact laws and no outside power or authority can
issue a direction to enact a particular piece of legislation. Similarly, no mandamus can be
issued to enforce an Act which has been passed by the Legislature. Therefore, the
direction issued by the apex court in Vineet Narain case regarding conferment of statutory
status on CVC cannot be treated to be of such a nature the non-compliance whereof may
amount to contempt.
Similarly, in State of H.P.v Parent of a Student of Medical Collage (1985) 3 SCC
169, it was held that the High Court while exercising extraordinary jurisdiction under Art.
226 cannot direct the State Legislature to enact a law. It is entirely a matter for the
executive branch of the Government to decide whether or not to introduce any particular
legislation. The court cannot usurp the function
 to the executive and theConstitutional
S-14
assigned legislature Law - I: Supplement
under 2007
the Constitution and it cannot
even indirectly require the executive to introduce a particular legislation or the legislature
to pass it or assume to itself a supervisory role over the law making activities of the
executive and the legislature.
The above decision was followed by the Supreme Court in Asif Hameed v State
ofJEtK (AIR 1989 SC 1899) in which the High Court had directed the State Government
to constitute statutory independent body to make admissions to medical colleges in the
State.
In Aeltemesh Rein v UOI (1988) 4 SCC 54, the question was whether the court can
issue a writ in the nature of mandamus to the Central Government to bring Sec. 30 of the
Advocates Act, 1961 into force. The said section has not yet been brought into force. The
above issue also arose in A.K. Royv UOI (1982) 1 SCC 271. In that case, it was observed
that it is not open to this court to issue a writ of mandamus to the Central Government to
bring a statute or a statutory provision into force when according to the said statute the
date on which it should be brought into force is left to the discretion of the Government.
In that case, the Constitution Bench observed'. “The executive is responsible to the
Parliament and if the Parliament considers that the executive has betrayed its trust by not
bringing any provision of the amendment into force, it can censure the executive. It would
be quite anomalous that the inaction of the executive should have the approval of the
Parliament and yet we should show our disapproval of it by issuing a mandamus”.
However, in the present case, the apex court held that though the court cannot
direct the exercise of discretionary power in a particular manner, it can issue a writ of
mandamus to the Central Government to consider within a period of 6 months whether
Sec. 30 of the Act should be brought into force or not. If on such consideration the
Government feels that the prevailing circumstances are such that Sec. 30 should not be
brought into force immediately it is a different matter. But it cannot be allowed to leave
the matter to lie over without applying its mind to the said question. “Every discretionary
power vested in the executive should be exercised in a just, reasonable and fair manner.
That is the essence of rule of law”.
In Murli i. Deora v UOI (2001) 8 SCC 765, realizing the gravity of the situation
and considering the adverse effect of smoking on smokers and passive smokers, the court
directed and prohibited smoking in public places and issued direction to the Union of
India, State Governments and UTs to take effective steps to ensure prohibiting smoking in
public places.
In Guruvayoor Devaswom Managing Committee v C. K. Rajan (2003) 7 SCC 546,
the apex court sketched the development of PIL. There was initial activist mode w'hen the
scope of the Supreme Court’s intervention in this area was enlarged. Later, a need felt that
greater care be exercised before intervening due to abuse of PIL for settling of private
disputes or garnering publicity. Even though it was difficult to draw a strict line of
demarcation as to which matters
and to what extent a PiL should be entertained, the decisions of the Supreme Court
render broad guidelines. A PIL would only be entertained if a segment of public is
interested, and the petitioner is not aggrieved in his individual capacity alone. The
Supreme Court nor the High Courts should undertake an unnecessary journey through
the PIL path unless there existed strong reasons to deviate or depart along such a path.
 Constitutional Law- /. Supplement 2.007 S-15

Pr inciples of natural justice and fair play ought to be followed even in pro bono
publico proceedings.
Court’s Power to Award Compensation
In Rudal Shah v State of Bihar (1983) 4 SCC 141, the apex court clarified that
ordinarily a petition under Art. 32 “should not be used as a substitute for enforcement
of the right through the ordinary process of the civil court”. However, in certain cases
it would be gravely unjust to ask the victim to goto the civil court for claiming
compensation, where it would take many years to get a relief.
In the present case, the court awarded Rs.30, 000 as compensation to the
petitioner who had to remain in jail for 14 years because of the irresponsible conduct
of the State authorities. The court observed that “respect for the rights of individuals is
true bastion of democracy”. Therefore, the State must repair the damage done by its
officers to the petitioner’s rights.
Similarly, in Bhim Singh v State ofJEtK (1985) 4 SCC 677, the petitioner was
awarded compensation cfRs. 50,000 for the violation ofhis constitutional right of
personal liberty under Act. 21. The petitioner (an ML, A) was arrested and detained in
police custody and deliberately prevented from attending session of the Legislative
Assembly. The court held that “when the constitutional right of personal liberty is
invaded, the invasion is not washed away by his being set free”.
In Nilabati Behera v State of Orissa (AIR 1993 SC 1960), the apex court
granted Rs. 1,50,000 to the petitioner for the death of her son in police custody. The
court also relied on Art. 9(5) of the International Covenant on Civil and Political
Rights, 1966, which indicated that anyone who had been the victim of unlawful arrest
or detention, should have an enforceable right to compensation. Compensation was
also awarded by the court in Sebastian M. Hongray v UOI (AIR 1984 SC 1026).
In Chairman, Railway Board v Chandrirna Das (AIR 2000 SC 988), the
Supreme Court held that were a foreign national (a Bangladeshi woman) was gang
raped, compensation can be granted under Public Law (Constitution) for violation of
fundamental rights on the ground of Domestic Jurisdiction based on constitutional
provisions and human rights jurisprudence.
In At C. Mehta v Kamal Nath, JT 2002 (3) SC 64, the court levied exemplary
damages on the respondent to serve as “a deterrent for others not to cause pollution in
any manner”.
In a case of frivolous arguments and mala fides in conducting litigation before
the High Court and Supreme Court by the State and its instrumentalities the Supreme
Court imposed cost of Rs. Five lakhs on the State [Stale of Karnataka v All India
Manufacturers Organisation (2006) 4 SCC 683J.
Appointment and Transfer of Judges
In Re Presidential Reference (In Re Special Reference No. 1 of 1998)
(AIR 1999 SC 1)
In this “Transfer of Judges case-HP', a 9-judge Bench of the Supreme Court unanimously
held that the recommendations made by the Chief Justice oflndia on the appointment of
Judges to the Supreme Court without following the consultation process are not binding
on the Government. Widening the scope of Chief Justice of India’s consultation process,
the court gave its opinion on the nine questions in the Presidential Reference.
 S-16 Constitutional Law- I: Supplement 2007
The President had sought the Supreme Court’s clarification under Art. 143, on the
consultation process, as laid down in S.C. Advocates-on-Record Asscn. Case (“Second
Judges case”) (AIR 1994 SC 263). In that case, the court gave primacy to the opinion of
the CJI formed in consultation with the senior most Judges of the Supreme Court in
regard to the appointment of Judges and their transfers. Thus, the main question on which
the advisory opinion of the court was sought was whether the Government was bound by
the recommendation of CJI sent to it without consulting his two senior most colleagues.
The apex court held that the CJI must consult a collegium of four senior-most
Judges of the Supreme Court and made it clear that “if two Judges give adverse opinion
theCJI should not send the recommendation” to the President. The collegium should make
the decision in consensus and unless the opinion of the collegium is in conformity with
that of the CJI, no recommendation is to be made. In effect, the CJI and at least three of
the four senior most Judges had to agree.
The nine questions posed by the Reference as answered by the apex court are:
(1) The expression “consultation with the Chief Justice of India” in Arts. 217(1)
and 222(1) of the Constitution oflndia requires consultation with a plurality of
Judges in the formation of the opinion of the Chief Justice of India. The sole
individual opinion of the CJI does not constitute “consultation” within the
meaning of the said articles.
(2) The transfer of puisne Judges is judicially reviewable only to this extent: that
the recommendation that has been made by the Chief Justice oflndia in this
behalf has not been made in consultation with the four senior-most puisne
Judges of the Supreme Court and/ or that the views of the Chief Justice of the
High Court from which the transfer is to be effected and of the Chief Justice
of the High Court to which the transfer is to be effected have not been
obtained.
(3) The Chief Justice oflndia must make a recommendation to appoint a Judge of
the Supreme Court and to transfer a Chief Justice or puisne Judge of a High
Court in consultation with the four senior-most puisne Judges of the Supreme
Court. Insofar as an appointment to the High Court is concerned, the
recommendation must be made in consultation with the two senior-most
puisne Judges of the Supreme Court.
(4) The Chief Justice of India is not entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme Court, in
respect of materials and information conveyed by the Government of India
for non-appointment of a Judge recommended for appointment.
(5) The requirement of consultation by the Chief Justice of India with his
colleagues who are likely to be conversant with the affairs of the High Court
concerned does not refer only to those Judges who have that High Court as a
parent High Court. It does not exclude Judges who have occupied the office
of a Judge or Chief Justice of that High Court on transfer.
(6) “Strong cogent reasons” do not have to be recorded as justification for a
departure from the order of seniority in respect of each senior Judge who has
been passed over. What has to be recorded is the positive reason for the
 Constitutional Law- /. Supplement 2.007 S-17

recommendation.
(7) The views of the other Judges consulted should be in writing and should be
conveyed to the Government of India by the Chief Justice of India along with
his views to the extent set out in the body of this opinion.
(8) The CJI is obliged to comply with the norms and requirements of the
consultation process, as aforestated, in making his recommendations to the
Government of India.
(9) Recommendations made by the CJI without complying with the norms and
requirements of the consultation process, as aforestated, are not binding upon
the Government of India.
Comments - The decision of the apex court though affirmed the law laid down in Second
Judges’ case, has made the consultation process more democratic and transparent. This
would ensure the independence and impartiality of the judiciary of India. However, as a
result of the above decision (and the Second Judges’ case), Art. 124 have been made
redundant. These cases have vested the powers of appointment of judges of higher
judiciary completely in the Supreme Court. This is not a satisfactory position. The
process might not be transparent in this case also.
The broad consensus appears to be on the appointment of a National Judicial
Commission that would balance both sides, the executive and the judiciary in this matter.
S-18 Constitutional Law- I: Supplement 2007

[V] Executive Powers/Parliament & State Legislatures

Appointment/Discretionary Powers of Governor
Rameshwar Prasad v Union of India
(AIR 2006 SC 980)
In this case, the question as to the criteria for appointment of Governors came up. It was
observed by the majority that the criteria suggested in the Sarkaria Commission Report
should be followed. However it was also recorded that these criteria were observed rather
in their total breach by all political parties. However the matter was left to the wisdom of
political parties to arrive at a national policy with some common minimum parameters
applicable and acceptable to all major political parties. The court observed that it had
become imperative and necessary that right persons were chosen as Governors if the
sanctity of the post as head of the executive of a State was to be maintained. The abuse of
the office of the Governor to pursue its party political agendas in the State by party in
power at the Centre was strongly deprecated. Lastly, it was observed that the situation
that had arisen in the case at hand wherein it had been alleged that the Governor had
recommended dissolution of the State Assembly to prevent a particular political group
from coming into power in the State, was clearly attributable to the people who elected
Governors on considerations other than merit.
On the question as to the proper mode and manner of the discharge of the powers
and duties, especially the discretionary powers, of the Governor a State, it was held by the
majority that the expression “required” in Art. 163(1) was stated to signify that Governor
could exercise his discretionary powers only if there was a compelling necessity to do so.
The Governor could not, in exercise of his discretion or otherwise, do anything which
was prohibited to be done. The court observed that a person appointed as Governor
should add glory to the pc .t and not be a symbolic figure oblivious of the duties and
functions which he has and is expected to carry out. Therefore, it was a disturbing feature
that Raj Bhawans were increasingly turning into extensions of party offices and
Governors were behaving like party functionaries of a particular party. This was not
healthy for democracy.
It was further held that in considering the installation of a new government on
conclusion of elections though the Governor has a duty to preserve democracy and not to
permit the “canker” of political defections to tear into the vitals of Indian democracy, the
likelihood of defection is not a relevant consideration for the Governor in determining
whether to accept the claim of a party/group claiming a majority in the Legislative
Assembly. The intricate question whether the case would fall within the permissible
category of“merger” defined in Sch. X para 4, could not be taken into consideration. It
was for the MLAs or the appropriate functionary to decide and not for the Governor to
assume disqualification and thereby prevent staking of claim, by recommending
dissolution. The power under Sch. X para 6 for determining disqualifications was a
judicial power and lay with the Speaker of the House and not with the Governor. The
Governor could not assume to himself the said power and use a likely violation of Sch. X
as a reason for recommending dissolution of the Assembly. The Governor, a high
constitutional functionary was required to be kept out from controversies like
disqualification of MLAs and therefore, there were provisions like Art. 192(2),
 Constitutional Law- /. Supplement 2.007 S-19

whereunder the Governor had to obtain and act according to the opinion of the Election
Commission.
It was also held: The Governor was not an autocratic political ombudsman. If such
power was vested in Governor and/or President, the consequences could be horrendous.
There could not be any presumption of use of illegal/ unethical means/horse-ti ading
merely because a number of MLAs of a party were moving or had moved or expressed
views, against the professed public stand of their party, in favour of the group likely to
stake claim. It was quite easy to make general assumptions that the majority was achieved
by allurement, corruption and bribery, without any material, if any political party not
gaining absolute majority was to be kept out of governance.
Convicted Person cannot be Appointed Chief Minister
B. R. Kapoor v State of Tamil Nadu ("Jayalalitha case”)
[2001 (6) SCALE 309]
In this case, a 5-Judge Bench of the Supreme Court held that a person convicted of
criminal offence and sentenced to more than two years of imprisonment cannot be
appointed as Chief Minister.
Snit. Jayalalitha despite being disqualified to contest the election (in view of
conviction under the Prevention of Corruption Act) was elected as the leader of her party
after the party has gained absolute majority in the Assembly elections. The governor
ofTamil Nadu appointed her as the ChiefMinister. The Court held that her appointment as
a ChiefMinister was violative of Art. 164 (4) and, therefore, unconstitutional and invalid.
A non-member who does not possess the qualifications prescribed by Art. 173 or has
been disqualified under Art. 191 of the Constitution cannot be appointed as ChiefMinister
or Minister.
The Court rejected the argument that the ‘mandate’ is supreme and the will of the
people must be respected. The court held that it can be respected only if it is in
accordance with the provisions of the Constitution. The Constitution shall prevail over
the mandate “Supremacy in India lies with the Constitution and not with the Parliament.
The Constitution is supremo lex, the paramount law of the land and there is no
department or branch of government above or beyond it.”
The Court, however, held that the privilege of the Governor to appoint any person
as a ChiefMinister under Art. 164 (4) is justified. “The Governor is a functionary under
the Constitution and is sworn to preserve, protect and defend the Constitution and the law
(Art. 159). The Governor cannot, in the exercise ofhis discretion or otherwise, do
anything that is contrary to the Constitution and the laws. It is another thing that by
reason of the protection the Governor enjoys under Art. 361, the exercise of the
Governor’s discretion cannot be questioned.” The court also declared that the acts done
by the Chief Minister up till now will remain to be valid and will have no adverse effect
on the Government.
Non-member cannot be Reappointed Minister without getting himself Elected
In S. R. Chaudhari v State of Punjab (AIR 2001 SC 2707), it was held that a nonmember
cannot be ‘repeatedly’ appointed as a Minister for a term of 6 consecutive months without
getting himself elected in the meanwhile. Art. 164
(4) is in the nature of an exception to the normal rule of only members of the legislature
being Ministers, restricted to a short period of 6 months. This exception must be strictly
construed.S-20
This is only a one-time privilege. TheLaw-
Constitutional non-member
I: SupplementMinister
2007 even during the
period of‘six months’ does not have the right to vote or the legislative immunity as
provided by Art. 194 (2). He also cannot draw the benefits of an MLA. The will of the
people cannot be permitted to be subordinated to political expediency of the Prime
Minister or the Chief Minister.

S.P. Anand v H.D. Deve Gowda

(1996) 6 SCC 734
In this case, the question was whether a person who is not a member of either House of
Parliament (i.e. not an elected representative of the people) be sworn in as the Prime Min
ister of India. It was held: By a parity of reasoning if a person who is not a member of the
State Legislature can be appointed a Chief Minister of a State under Art. 164(4) for 6
months, a person who is not a member of either House of Parliament can be appointed
Prime Minister for the same duration.
The court observed: On plain reading of Art. 75 (5), it is clear that the Constitution
makers desired to permit a person who was not member of either House of Parliament to
be appointed a Minister for a period of 6 consecutive months and if during the said period
he is not elected to either House he will cease to be a Minister (vide Harsharan Vernia v
UOI, 1987 Supp. SCC310).The constitutional provisions (Art. 75) does not draw any
distinction between the Prime Minister and any other Ministers, though the former does
enjoy a special status. But all of them are collectively responsible to the Lok Sabha.
Further, a person who is appointed the Prime Minister is chosen by the elected
representatives of the people.
The court further observed: “Even if a person is not a member of the House, if he
has the support and confidence of the House, he can be chosen to head the Council of
Ministers without violating the norms of democracy and the requirement of Art. 75 of
being accountable to the House would ensure the smooth functioning of the democratic
process. We, therefore, find it difficult to
subscribe to the petitioner’s contention that if a person who is not a member of the
House is chosen as PM, national interest would be jeopardized or that we would be
running a great risk.
The English convention that the Prime Minister should be a member of either
House preferably House of Commons, is not our constitutional scheme since our
Constitution clearly permits a non-member to be appointed a ChiefMinister/ PM for a
short duration of 6 months. That is why in such cases when there is any doubt in the
mind of the President, he normally asks the person appointed to seek a vote of
confidence of the Lok Sabha within a few days of his appointment.”]
In Janak RajJai (Dr.)v H.D. Deve Gowda (1997) 10 SCC 462, similarly held as
in S.P. Anand case, supra. The Court also held that a member of State Legislative
Assembly is not prohibited from becoming a Central Minister under Art. 75(5). Hence
where a non-member ofeither House ofParliament even after being appointed as PM
had retained his membership of the State Legislative Assembly but on his election to
either House ofParliament within six months he resigned from his membership of the
State Assembly, his appointment as PM would be valid. Dismissal of a Ministry
In Jagdambika Pal v Union of India (AIR 1998 SC 998), the Chief Minister of the
 Constitutional Law- /. Supplement 2.007 S-21

State of U.P. was dismissed and another person sworn in as ChiefMinister without
holding of “floor-test”. A petition was filed by the dismissed Chief Minister. The
Supreme Court directed the convening of special session of Assembly and to have a
composite floor-test between the contending parties. The order of the Court was
directed to be treated as a notice to all MLAs.
In Anil Kumar Jha v UOI (2005) 3 SCC 150, the exercise of power under Art.
164 (1) by the Governor was in issue. The Governor of Jharkhand appointed the leader
of party/political alliance, not commanding support of majority of legislators, as
ChiefMinister. The Supreme Court held it to be an arbitrary and mala fide exercise of
the power by the Governor, which is a fraud on the Constitution. The court preponed
the floor test to determine primacy between contending political alliances and issued
other directions to ensure fairness of the floor test. The Chief Secretary and Director
General of Police were directed to see that all elected MLAs attended the Assembly
freely, safely and securely without let or hindrances. Pro tern Speaker of the Assembly
was directed to have proceedings of floor test . video-recorded and a copy thereof sent
to Supreme Court.
Office of Profit
Jaya Bachchan v Union of India
(AIR 2006 SC 2119)
In this case, the Apex Court interpreted the expression ‘office of profit’ in the context
of disqualification for the membership ofParliament. Under Art. 102(1) (a), a person is
disqualified for being chosen and for continuing as a member of Parliament ifhe holds
any office of profit under Central or State Government other
 S-22 Constitutional Law- I: Supplement 2007
than an office declared by Parliament by law not to disqualify its holder. The object ofthis
provision is to secure the independence of the Member of Parliament from the benefits of
the Executive which may be under influence and there may be conflict between duty and
self interest among the Members of Parliament [SatnicharlaC. Raju\ fyricherla Pradeep
KumarDev AIR 1992 SC 1959].
The court observed: The Parliament may enact a law which may declare that a
holder of an office of profit is not disqualified. Parliament has enacted the Parliament
(Prevention of Disqualification) Act, 1959 which exempts certain offices as not to
disqualify their holders for membership of Parliament. In the instant case, the Rajya
Sabha M.P., Jaya Bachchan was disqualified from the membership of Rajya Sabha on the
ground that she was holding an office of profit in the capacity of the chairperson of the
U.P. Film Development Council. The Parliament (Prevention of Disqualification) Act did
not exempt the said office of profit from the disqualification under Art. 102 (1) (a) of the
Constitution.
The ‘office’ in issue carried with a monthly honorarium ofRs. 5,000/- entitlement
expenditure of Rs. 10,000/-, staff car with driver, telephones at office and residence, free
accommodation and medical treatment facilities to self and family members, apart from
other allowances. The petitioner, challenging the validity of her disqualification, claimed
that the benefits and facilities given by the State Government were not received by her.
The Apex Court upheld her disqualification from the membership of Rajya Sabha.
The court held: An ‘office of profit’ is an office which is capable of yielding a
profit of pecuniary gain. Nature of payment must be considered as a matter of substance
rather than of form. Nomenclature is not important. In fact, mere use of the word
‘honorarium’ cannot take the payment out of the purview of profit, ifthere is pecuniary
gain for the recipient payment ofhonorarium.
In addition to daily allowances in the nature of compensatory allowances, rent free
accommodation, car with driver, etc. are clearly in the nature of remuneration and a
source of pecuniary gain and hence constitute profit. For deciding the question as to
whether one is holding office of profit or not, what is relevant factor is whether the office
is capable of yielding a profit or pecuniary gain and not whether the person actually
obtained a monetary gain. If the pecuniary gain is ‘receivable’ in connection with the
office then it becomes an office of profit irrespective of whether such pecuniary gain is
actually received or not.
Judicial Review over President's/Governor’s Powerto Pardon Epuru
Sudhakar v Govt, of Andhra Pradesh (AIR 2006 SC 3385)
In this significant judgment, the Apex Court has held that the pardoning powers of the
President under Art. 72 and the Governors under Art. 161 are subject to judicial review.
Pardoning power cannot be exercised arbitrarily on the basis of caste or political reasons.
In the instant case, a Congress worker was convicted for the murder of a worker of
the Telugu Desham and he was awarded death sentence. The State Governor granted
pardon to him. The murdered person’s son challenged the constitutional validity of the
Governor’s pardoning power in the High Court of Andhra Pradesh. The High Court
quashed the Governor’s pardoning power on the ground that it was exercised on the
political ground. The Government of Andhra Pradesh filed on appeal against the High
Court’s judgment in the Supreme Court. The Apex Court upheld the High Court’s
 Constitutional Law- /. Supplement 2.007 S-23

judgment. It held that if the pardoning power has been exercised on the ground of
political reasons, caste and religious considerations it would amount to violation of the
Constitution and the Court will examine its validity.
The court observed: The philosophy underlying the pardon power is that “every
civilized country recognizes, and has therefore, provided for, the pardoning power to be
exercised as an act of grace and humanity in proper cases. Without such a power of
clemency, to be exercised by some department or functionary of a Government, a country
would be most imperfect and deficient in its political morality”.
The court (Kapadia J., concurring opinion) however made it clear that exercise of
executive clemency is a matter ofdiscretion and yet subject to certain standards. It is not a
matter of privilege. It is a matter of performance of official duty. It is vested in the
President/Governor not for the benefit of convict only, but for the welfare of the people
who may insist on the performance of the duty. This discretion, therefore, has to be
exercised on public considerations alone. The President and the Governor are the sole
judges of the sufficiency of facts and of the appropriateness of the granting of pardons,
etc. However, this power is an enumerated power in the Constitution and its limitations,
if any, must be found in the Constitution itself. Therefore, the principle of exclusive
cognizance would not apply when and if the decision impugned is in derogation of a
constitutional provision. This is the basic working test to be applied while granting
pardons, etc.
The court held: The pardon power is open to judicial review on limited grounds
like non-application of mind, mala fide, arbitrariness, irrelevant considerations, etc.
Absence of obligation to convey reasons does not mean that there should not be reasons.
It is important to bear in mind that every aspect of the exercise of the pardon power does
not fall in thejudicial domain. In certain cases, a particular aspect may not be justiciable.
However, even in such cases, there has to exist requisite material on the basis of which
this power is exercised. Though, the circumstances and the criteria to guide exercise of
the power may be infinite, the impugned decision must indicate exercise of the power by
application of manageable standards (those expected in functioning democracy) and in
such cases courts will not interfere in its supervisory jurisdiction. A pardon obtained by
fraud or granted by mistake or granted for improper reasons would invite judicial review.
The prerogative power is the
flexible power and its exercise can and should be adapted to meet the circumstances
of the particular case.
Validity of Ordinance must be Examined with Higher degree of Care and
Caution
B.A. Hasanabha v State of Karnataka (AIR 1998 Kant 91) -Though Art. 213(2)
declares that an Ordinance promulgated under Art. 213(1) has the same force and
effect as anf'Act of the Legislature, the Karnataka High Court has distinguished it
from the Act. It observed: “An Ordinance unlike an Act is required to be very
carefully scrutinized by a Court if it is challenged because an Ordinance is an
unfettered, unbridled power to promulgate provisions which have the effect of law
without their going through the constitutionally prescribed process. A Bill when
introduced in Parliament is scrutinized/examined by the elected representatives and
especially the opposition. A Bill is seriously considered, reconsidered, modified and
 S-24 Constitutional Law- I: Supplement 2007
redrafted and the end result that ultimately emerges is a carefully considered and
purified Act.
Whereas an Ordinance would take effect in the form in which the
Government prepared it. Therefore, when an Ordinance was challenged particularly
on the ground of mala fides or on grounds of vires, it would be extremely important
that the Court should examine it with a higher degree of meticulousness than it
would in the case of any other enactment. Hurriedly- drafted Ordinances,
promulgated overnight, have turned out to be draconian, thus, the scrutiny of an
Ordinance is something which a court must undertake with a higher degree of care
and caution”.
Judicial Review over Immunity to President/Governor In Rameshwar Prasad v UOI
(AIR 2006 SC 980), the scope of the immunity , granted to Governors and the
President under Art. 361 was discussed. It was i held that there was a complete bar
to the impleadment or issuance of notice to the President or Governor in their
personal capacity as they were not answerable to any court for the exercise and
performance of the powers and duties of their offices, or for any act done or
purported to be done in exercise and performance of those powers and duties. The
words “purported to be done” in Art. 361 were of wide amplitude, and the immunity
extended even to charges of mala fides.
However, the personal immunity provided under Art. 361, did not bar
challenges that might be made to their actions. Under law; such actions including
those actions where challenges were based on allegations of mala fides, w'ere
required to be defended by the Union of India or the State Government, as the case
may be. Even in cases where personal mala fides were alleged and establl'iied, the
Governments could not urge that the same could not be satisfactorily answered
because of the immunity granted. In such eventuality, it was for the respondent State
defending the action to satisfy the Court either on the basis of materi al on record or
even by the filing of an affidavit of the Governor President. Art. 361 did not bar the
filing of an affidavit ifGovernor or President
wished to do so. The bar was only against the power of the court to issue notice to or
making the President or Governor answerable.
[VI] Freedom of Trade, Commerce & Intercourse
In B.R. Enterprises v State of U.P. (AIR 1999 SC 1867), it was held that the right of sale
of lottery tickets is not a right under Art. 301. Lottery has been held to be gambl ing. In it,
th ere is no ski 11 but on ly an element of chance, it fal Is outside the realm of res
commercium. Even State lotteries cannot be said to constitute “trade” as contemplated by
Art. 301. Since State lotteries cannot be construed to be trade and commerce within the
meaning of Art. 301, there could possibly be no question of any discrimination or
violation of Art. 303. Therefore, the Central Lotteries (Regulation) Act under which
power is conferred on States to ban sale of lotteries of other States does not violate Arts.
301-303 of the Constitution and is, thus, valid.
In M. S. Widia (India) Ltd. v State of Karnataka (AIR 2003 SC 3095), it was held
that merely because the budget estimates indicated that the income raised by imposition of
the tax was more than the expenditure incurred on roads and bridges, or that the precise or
 Constitutional Law- /. Supplement 2.007 S-25

specific amount collected by imposition of a tax is not used to providing any faci lities,
the tax cannot be said to be not compensatory in character.
In Sharma Transport v Govt, of A. P. (AIR 2002 SC 322), it was held that
imposition of tax does not infringe Art. 301 in every case. It has to be seen whether the
impugned provision amounts to a restriction directly and immediately on the movement
of trade or commerce. Freedom granted by Art. 301 is of the widest amplitude and is
subject to only such restrictions as are contained in the succeeding articles in Part XIII of
the Constitution.
The court observed: For the tax to become a prohibited tax it has to be a direct tax
the effect of which is to hinder the movement part of trade. It is the reality or substance of
the matter that has to be determined. So long as a tax remains compensatory it cannot
operate as a hindrance. A mere claim that tax is compensatory would not suffice. To that
extent the observations in B.A. Jay warn case (AIR 1983 SC 1005) do not reflect the
correct position in law. The Jayaram.’s case has been overruled to this extent. Thus,
whether a tax is compensatory or not cannot be made to depend on the Preamble of the
charging statute. It should in reality or substance not be a deterrent to any trade.
It may be noted that in the present case, in order to promote and encourage All-
India tourist traffic, the Central Government requested all the State Governments in the
federal union to exempt the owner of the tourist coaches which pass through their States
from the payment of tax under their tax laws if they have already paid the same in the
States where their vehicles are registered. While most of the States acceded to this
request, the State of A.P. did not and insisted on the payment of tax under its tax law.
Held that the State Government was competent to enact the impugned Act. The Act was
held valid on the
 S-26 Constitutional Law- I: Supplement 2007
ground that it was a request by the Central Govt, to the State Governments to take
necessary action to make provisions relating to composite fee. It was not a directive of the
Central Government.
In Shree Digvijciy Cement Co. Ltd. v State of Rajasthan (AIR 2000 SC 680), the
apex court upheld the validity of Notification issued by the State of Rajasthan under Sec.
8(5) of Cement Sales Tax Act, 1956. The said Notification reducing sales tax on inter-
State sale of cement by any dealer from that State to 40% was held not violative of Art.
301 on the ground that it had effect of preventing or hindering free movement of goods
from one State to another. In fact, the impugned Notification had the opposite effect,
namely, it increased the movement of cement from Rajasthan to other States.
In State of U.P. v M/s Laxmi Paper Mart (AIR 1997 SC 950). it was held that sales
tax imposed on exercise books prepared outside State and brought and sold within State
while exercise books prepared from paper purchased within the State were exempted
from such tax would be discriminatory and offending Arts. 301 to 304.
Art. 301 vis-a-vis Compensatory Tax
Jindal Stainless Ltd. (2) v State of Haryana
(2006) 7 SCC 241
In this case, the question was whether a (compensatory) tax imposed on traders having no
direct nexus with trading facilities but used for purposes the benefit whereof to the trader
was only indirect or incidental, covered and therefore stood protected from being hit by
Art. 301 .A Constitution Bench decided the aforesaid question.
The Court held: Taxing laws are not excluded from the operation of Article 301,
which means that tax laws can and do amount to restrictions on the freedom guaranteed to
trade under Part XIII of the Constitution. This principle is well settled. It is equally
important to note that in Atiabari Tea Co. ,(1961) 1 SCR 809, the Supreme Court
propounded the doctrine of “direct and immediate effect”. An exception to Article 301
and its operation wasjudicially crafted in Automobile Transport, (1963) 1 SCR 491. In
that case, the concept of “compensatory taxes” was propounded. Therefore, taxes which
would otherwise interfere with the unfettered freedom under Article 301 will be protected
from the vice of unconstitutionality if they are compensatory. The working test laid down
in that case to determine whether a tax is compensatory was to “enquire whether the
[trade is] having theuse of certain facilities for thebetter conduct of [its] business and
paying not patently much more than what is required for providing the facilities”. This
working test remains unaltered even today.
In Bhagatram case, 1995 Supp (1) SCC 673, a Bench of three Judges enunciated
the test of “some connection” saying that even if there is some link between the tax and
the facilities extended to the trade directly or indirectly, the levy cannot be impugned as
invalid. This test of"some connection” enunciated in Bhagatram case is not only contrary
to the working test propounded in Automobile Transport case but it obliterates the very
basis of compensatory tax. The working test propounded by a Bench of seven Judges in
Automobile Transport and the test of “some connection” enunciated by a Bench of three
Judges in Bhagatram case cannot stand together. Therefore the test of “some connection”
as propounded in Bhagatram case is not applicable to the concept of compensatory tax
and accordingly to that extent Bhagatram Rajeevkumar v CST, 1995 Supp (1) SCC 673,
and State of Bihar v Bihar Chamber of Commerce, (1996) 9 SCC 136, stand overruled.
 Constitutional Law- /. Supplement 2.007 S-27

In the context of Article 301, therefore, compensatory tax is a compulsory

contribution levied broadly in proportion to the special benefits derived to defray the
costs of regulation or to meet the outlay incurred for some special advantage to trade,
commerce and intercourse. It may incidentally bring in net revenue to the Government
but that circumstance is not an essential ingredient of compensatory tax.
The concept of compensatory tax is not there in the Constitution but is judicially
evolved in the case of Automobile Transport, (1963) 1 SCR 491, as a part of regulatory
charge. The fallout is that compensatory tax becomes a subclass of fees. A compensatory
tax is levied on an individual as a member of a class, whereas a fee is levied on an
individual as such. For a tax to be compensatory there must be some link between the
quantum of tax and the facilities/services. Every benefit is measured in terms of cost
which has to be reimbursed by compensatory tax or in the form of compensatory tax. In
other words, compensatory tax is a recompense/reimbursement.
To sum up, the basis of every levy is the controlling factor. In the case of “a tax”,
the levy is a part of common burden based on the principle of ability or capacity to pay.
In the case of “a fee”, the basis is the special benefit to the payer (individual as such)
based on the principle of equivalence. When the tax is imposed as a part of regulation or
as a part of regulatory measure, its basis shifts from the concept of “burden” to the
concept of measurable/quantifiable benefit and then it becomes “a compensatory tax” and
its payment is then not for revenue but as reimbursement/ recompense to the
service/facility provider. It is then a tax on recompense. Compensatory tax is by nature
hybrid but it is more close to fees than to tax as both fees and compensatory taxes are
based on the principle of equivalence and on the basis of reimbursement/recompense.
Whenever a law is impugned as violative of Article 301 of the Constitution, the
Court has to see whether the impugned enactment facially or patently indicates
quantifiable data on the basis of which the compensatory tax is sought to be levied. The
Act must facially indicate the benefit which is quantifiable or measurable. It must broadly
indicate proportionality to the quantifiable benefit. Ifthe provisions are ambiguous or
even if the Act does not indicate facially the quantifiable benefit, the burden will be on
the State as a service/facility provider to show by placing the material before the Court,
that the payment of compensatory tax is a reimbursement/recompense for the
quantifiable/measurable benefit provided or to be provided to its payer(s). As soon as it is
shown that the Act invades freedom of trade it is necessary to enquire whether the State
has proved that the restrictions imposed by it by way of taxation are reasonable and in
public interest within the meaning of Article 304(b).
Article 301 is not only an authorisation to enact laws for the protection and
encouragement of trade and commerce amongst the States but by its own force creates an
area of trade free from interference by the State and, therefore, Article 301 perse
constitutes limitation on the power of the State. Article 301 is binding upon the Union
Legislature and the State Legislatures, and provides for freedom of inter-State as well as
intra-State trade and commerce subject to other provisions ofPart XIII and
correspondingly it imposes a general limitation on the legislative powers, which
limitation is relaxed under the following circumstances:
(a) Limitation is relaxed in favour ofParliament under Article 302, in which case
Parliament can impose restrictions in public interest. Nonetheless, it is
 clarified
S-28 in Article 303(1) that notwithstanding
Constitutional anything2007
Law- I: Supplement contained in Article
302, Parliament is not authorised even in public interest, in the making of any
law, to give preference to one State over another subject to one exception and
that too only in favour of Parliament, where discrimination or preference is
admissible to Parliament in making of laws in case of scarcity. This is
provided in Article 303(2).
(b) As regards the State Legislatures, apart from the limitation imposed by
Article 301, Article 303(1) imposes additional limitation, namely, that it must
not give preference or make discrimination between one State or another in
exercise of its powers relating to trade and commerce under List II or List III.
However, this limitation on the State Legislatures under Articles 301 and
303(1) is lifted in the following cases. Firstly, Article 304(a) authorises a
State Legislature to impose a non-discriminatory tax on goods imported from
sister State(s) or Union Territories, even though it interferes with the freedom
of trade and commerce guaranteed by Article 301. Secondly, under Article
304(b) the ban under Article 303(1) shall stand lifted even if discriminatory
restrictions are imposed by the State Legislature provided they fulfil the
following three conditions, namely, that such restrictions shall be in public
interest; they shall be reasonable; and lastly, they shall be subject to the
procurement of prior sanction of the President before introduction of the Bill.
Article 304(b) confers a power upon the State Legislature similar to that conferred upon
Parliament by Article 302 subject to the following differences:
(1) While the power ofParliament under Article 302 is subject to the prohibition
of preference and discrimination decreed by Article 303(1) unless Parliament
makes the declaration under Article 303(2), the State power contained in
Article 304(b) is made expressly free from the prohibition contained in Article
303(1) because the opening words of Article 304 contain a non obstante
clause both to Article 301 and Article 303.
(2) While Parliament’s power to impose restrictions under Article 302 is not
subject to the requirement of reasonableness, the power of the State to impose
restrictions under Article 304 is subject to the condition that they are
reasonable.
(3) An additional requisite for the exercise of the power under Article 304(b) by
the State Legislature is that previous Presidential sanction is required for such
legislation.
Broadly, the above analysis of the scheme of Articles 301 to 304 shows that Article 304
relates to the State Legislature while Article 302 relates to Parliament in the matter of
lifting of limitation, which flows from the freedom of trade and commerce guaranteed
under Article 301.

[VII] Emergency Provisions

In Sarbananda Sonowal v UOI (AIR 2005 SC 2920), the Supreme Court for the first time
got an opportunity to interpret the word “aggression” used in Art. 355. It held that the
unabated influx of illegal migrants of Bangladesh into Assam leading to perceptible
change in the demographic pattern of the State and contributory factor behind the
 Constitutional Law- /. Supplement 2.007 S-29

outbreak of insurgency in the State having dangerous dimensions of greatly undermin ing
national security is an act of aggression.
The court observed: The word “aggression” is not to be confined only with “war”.
Though war would be included within the ambit and scope of the word “aggression” but
it comprises many other acts which cannot be termed as war. According to the traditional
international law, “war is a contest between two or more States through their armed
forces, for the purpose of overpowering each other and imposing conditions of peace as
the victor pleases”. But with the passage of time, the nature of war has considerably
changed. Modern war may involve not merely the armed forces of belligerent States but
their entire population. The framers of the Constitution have consciously used the word
“aggression” and not “war” in Art. 355.
Application of Art. 356
Special Reference No. 1 of 2002 In Re (Gujarat Assembly Election Matter)
(2002) 8 SCC 237
In this case, the President has referred the important question regarding interpretation of
Art. 174 and Art. 324 to the Supreme Court for its advisory opinion under Art. 143 of the
Constitution.
 Art. 174, the governmentConstitutional
Under S-30 has power Law-
toI: Supplement 2007 State legislative
dissolve the
Assembly from time to time as it thinks fit. However, six months shall not intervene
between its last sitting in one session and the date appointed for its first sitting in the next
session. This means that in normal situation if a legislative assembly is dissolved, election
must be held within that period. In the present case, after tfce Godhra incident, there
occurred widespread communal riots in the State of Gujarat. The Chief Minister
prematurely dissolved the Assembly and recommended for election. The Election
Commission, however, took the decision that condition in the State was not conducive for
holding the elections. The question arose: Can the Election Commission frame a schedule
for elections to an Assembly on the premise that any infraction of the mandate of Art. 174
would be remedied by a resort to Art. 356 by President.
A Five Judge Bench held that Art. 174 (1) does not apply to a ‘dissolved
Assembly’ but to a ‘live Assembly’. Art. 174 (1) neither relates to elections nor does it
provide any outer limit for holding elections for constituting the Assembly. The holding
of elections is the exclusive domain of the Election Commission under Art 324. It has
exclusive power of framing ofschedule for holding election for constituting Legislative
Assembly or Lok Sabha. Parliament is empowered to frame law as regards conduct of
elections but conducting elections is the sole responsibility of the Election Commission.
The apex court held: Merely because the time schedule fixed under Art. 174 cannot
be adhered to, that per se cannot be a ground for bringing into operation Art. 356. Since
Art. 174(1) dose not apply to dissolved Legislative Assembly and as such there being no
infraction of Art. 174(1) in preparing schedule for election by the Commission, the
question of applicability of Art. 356 does not arise. The question of declaration of State
emergency under Art. 356 have no relevance to fixation of election schedule.

Rameshwar Prasad v Union of India

(“Bihar Assembly Dissolution Case”)
(AIR 2006 SC 980)
In this case, the constitutional validity of Notification dated 23 May, 2005 ordering
dissolution of Legislative Assembly of the State of Bihar was in issue. In a unique case of
its kind, even before the first meeting of the Legislative Assembly, its dissolution had
been ordered on the ground that attempts were being made to cobble a majority by illegal
means and lay claim to form the government in State and i fattempts continued, it would
amount to tampering with constitutional provisions. Earlier cases that came up before the
court were those where the dissolution of Assemblies were ordered on the ground that the
parties in power had lost the confidence of the House. It was claimed by the Governor
that he recommended dissolution on the ground that in view of media report apolitical
party was trying to gain majority by engineering defections and this was a serious threat
to democracy.
A 5-judge Bench, by 3-2 majority, held that the Presidential proclamation
dissolving State Assembly was unconstitutional and based on extraneous and irrelevant
grounds. The court said that the State Governor misled the Centre in recommending the
dissolution of State Assembly and the Union Council of Ministers should’ve verified
before accepting it as gospel truth. The Governor acted in “undue haste” in sending his
report and his ftillmotive was to prevent JD (U) from staking claim to form a Government
after a fractured Assembly polls verdict. The Governor’s report contained “fanciful
 Constitutional Law- /. Supplement 2.007 S-31

assumptions” which could be “destructive to democracy”.

The court held:
(i) It was open to the Court, in exercise of its power of judicial review, to examine
whether the Governor’s report based on which the President was to exercise
power under Art. 356 were: (1) based upon relevant material; (2) made bom
fide; and (3) whether the facts had been duly verified or not. The contention
that the report of the Governor itself was the material on which the President
alone had to, and it was impermissible for the Court to go into questions (1)
and (3), was rejected.
(i.i) The drastic and extreme action under Art. 356 could not be justified on the
mere ipse dixit, suspicion, whims and fancies of Governor, and the Supreme
Court could not remain a silent spectator watching the subversion of the
Constitution, the Supreme Court being the sentinel on the qui vive.
(iii) Arijit Pasayat, J. observed that the Governor should,truthfully and with a high
degree of constitutional responsibility, in terms of his oath, inform the
President that the government of the State could not be carried on in
accordance with the Constitution, with necessarily a detailed factual
foundation.
(iv) There may be human errors, therefore, the Governor concerned has to act
carefully with care and caution and draw his inference from tested and
unimpeachable material. Constitutionalism and constitutional system of
governance abhors absolutism. It is premised on the rule of law in which
subjective satisfaction is substituted by objectivity provided for by the
provisions of the Constitution itself.
(v) In recommending the dissolution of a freshly elected Assembly or invoking
the power under Art. 356, the Governor or President , respectively, could not
act on the ground of immorality. Given the changeability in the concept of
morality, it could be difficult to leave such aspects to be determined by high
constitutional functionaries on a case-to-case basis, depending upon the facts
of each case, and personal mould of constitutional functionaries. With all
these imponderables, the Constitution do not contemplate the dissolution
of Assembly based on assumption of such immoralities for formation of
the satisfaction that situation has arisen in which government cannot be
carried on in accordance with the provisions of the Constitution.
(vi) The recommendation for the dissolution of a freshly elected Assembly or
invocation of the power under Art. 356 was not permissible on the ground
of maladministration by or corruption on the part of a State Government
enjoying the majority support of the Assembly. The remedy for corruption
or similar ills and evils lay elsewhere, and not in Art. 356. The
extraordinary emergency power of recommending dissolution of a
legislative assembly was not to be resorted to as a matter of course for
good governance or cleansing of the politics, without any authentic
material. These were matters better left to the wisdom of others, including
the opposition and the electorate.
 S-32 Constitutional Law- I: Supplement 2007
The court held that on a proclamation under Art. 356 dissolving the legislative
assembly of a State being found unconstitutional, the Court had the power to restore
the status quo ante as prevailing before dissolution of the Assembly. However, in facts
and circumstances of the case, such relief was declined.
Comments - Regarding the claim of the petitioner for the revival of dissolved
Assembly, the court held that in view of the fact that the election process was set in
motion and was at an advanced stage, in the larger interest, it would not be proper to
order revival of State Assembly. It is submitted that the court. avoided any
confrontation between the legislature and judiciary by not ordering the revival of
Assembly. Further, the court rightly left the matter to be decided by the electorate
which was the ultimate source of power.
 INTRODUCTION
Constitution and Constitutionalism
A “Constitution” means a document having a special legal sanctity which sets out
the frame-work and the principal functions of organs of government of a State and
declares the principles governing the operation of those organs. The ‘Constitutional Law’
1
refers to the rules which regulate structure, functions and interrelations of governmental
organs. The rules are legal as well as includes conventions, etc.
A country' may have a Constitution, but not necessarily ‘Constitutionalism’ e.g. a
country where dictator's word is law, can be said to have a Constitution, but not
Constitutionalism. A Constitution ought not merely to confer powers on various organs of
government, but also seek to restrain those pow'ers. Constitutionalism recognises the need
for government but insists upon limitations being placed upon government powers ... it
envisages checks and balances and put powers of legislature and executive under some
restrain, otherwise it would jeopardise freedom of people and lead to an authoritarian,
oppressive government. Therefore, to preserve basic freedoms of individual and to
maintain his dignity and personality, a Constitution should be permeated with
Constitutionalism, it should've in-built restrictions on powers.
The Constitutionalism connotes in essence the ‘limited government’. It is the
antithesis of arbitrary power. Only when Constitution of a country' seek to decentralise
power and also impose other restrains, does a country have both- Constitution and
Constitutionalism.
According to Schwartz,
‘'Constitutions spring from a belief in limited government. Constitution means a
written orgamc instrument, under which government powers are conferred and
circumscribed. This stress upon grant and limitation of authority is
fundamental.”
According to Prof. Vile,
"Western institutional theorists have concerned themselves with problem of
ensuring that existence of government power, which is essential to realisation
of values of their societies, should be controlled in order that it shouldn't itself
be destructive of values it was intended to promote.”
Following are the principles and norms which promote Constitutionalism in a
country -
a written Constitution, federalism, free elections, independent judiciary
with judicial review, fundamental rights, doctrine of rule of law and
separation of powers (Rule of Law implies the absence of arbitrary power,
equality before law, and individual liberties).
Constitution : The Fundamental Law
The Constitution is the supreme law of land, and all governmental organs,
which owe their origin to the Constitution and derive their powers from its
provisions, must function within the framework of Constitution, and must not do
anything which is inconsistent with provisions of Constitution.
 2 CONSTITUTIONAL LAW (Part-1)
Source of Constitution : The Preamble
The Preamble indicates the source from which the Constitution comes viz. the
people of India. It is ordained by the people of India through their representatives
assembled in a sovereign Constituent Assembly. The preamble declares clearly that
it is the people of India who have adopted, enacted and given to themselves the
Constitution.
The preamble sets out the aims and aspirations of people, and these have been
translated into various provisions of Constitution. The people will continued to be
governed under the Constitution so long as it is acceptable to them and its provisions
promote their aims and aspirations. Following the course of Indian history and
pattern of Indian politics, it may be said that, unlike the western society, it is the elite
of Indian society rather than people themselves who have set the tone for
reformation of society. For example, in field of legislative activity, enactment of a
law is not brought about as a culmination of urges of people reflecting changes in
socio-economic order, but a measure which was enacted and adopted by Constituent
Assembly which took the lead in projecting a system to be identified with aims and
aspirations of people. (Though Constituent Assembly was not directly elected by
people, it doesn't necessarily mean that it didn't project the feeling of people). The
Constitution though not ratified by people, came into force in 1949.
Besides the tact that the preamble provides it is the people of India who have
enacted and given to themselves the Constitution, the successful working of the
Constitution and its continued acceptance by people over the years, leads to no other
conclusion that the binding force of Constitution is the sovereign will of people of
India. If at any stage of history, the people find that Constitution is not serving the
needs of society, they may set in motion a machinery which provides for a system
suited to aims and aspirations of people. It may, therefore, be rightly observed that
the sovereignty lies with the people of India — Preamble declares that source of
authority under the Constitution is the People of India
INTRODUCTION 3

(Sovereignty, is not located in Parliament, as it is bound by Constitution.... which in

a sense may appear to be sovereign as it is Supreme Law. However, it is the people
who have given ................................... Constitution).
Utility of Preamble
(i) It indicates the source of Constitution.
(ii) A statement of its objectives (They-Note1) - which the legislation is intended
to achieve (e.g. implementation of Directive Principles).
(iii) It serves as a challenge to the people to adhere to the ideals enshrined in it
('Justice, Liberty, Equality, Fraternity, etc.).
(iv) It is a sort of introduction to the statute and many a times very helpful to
understand the policy and legislative intent.
(v) Several decisions of the Supreme Court pointed out the importance and
utility of it By itself, it is not enforceable in a'Court of Law, yet it states
 objects and aids legal interpretation of the Constitution, where
language is ambiguous ...... construction which fits the preamble may
be preferred (However, the preamble can't override the express provisions
of an Act).
Amendment of Preamble
In Berubaris' case (AIR 1960 SC 858), the Supreme Court held that Preamble is
not a part of Constitution and thus not a source of any substantive powers and
doesn't import any limitations. However, in Keshavanand's case (AIR 1973 SC 1467)
the Court held that preamble is part of Constitution and it is of extreme importance;
and Constitution should be read and interpreted in the light of grar»d and noble
vision expressed in preamble. In fact the Preamble was relied on in imposing implied
limitations on amendment under the Art. 368. Held that since preamble is part of
Constitution, it can be amended, but 'basic features' m it can't be amended. As
edifice of our Constitution is based up6n these features and if they removed, it will
not be the 'same' Constitution. Amending power can't change the Constitution in
such a way that it ceases to be a 'Sovereign Democratic Republic'.
The value of preamble to the present Constitution is as mentioned in
points (iv) and (v) above.
★★★★★★★
 UNION AND ITS TERRITORIES
(Articles 1-4}
Part I of the Constitution comprising Arts. 1 to 4, provides a self-contained
mechanism for effecting changes in the constitution of States or Union Territories of 2
the Union of India.
Article 1 : India - a Union of States, its Territory
Art. 1(1) declares that “India, that is Bharat, shall be a Union of States". The
expression “Union” indicates that the Indian federation is not the result of an
agreement between the units it constituted of and that the component units have no
freedom to secede from the union so created.
Art. 1(3) mentions that the “ten itory of India" comprises of the (a) State
territories, (b) Union territories, and (o') such other territories as may be acquired
by the Government of India at any tune.
There are at present 25 States and 7 Union Territories in the Union of India.
Art. l(3)(c) does not expressly confer power on the Government of India to acquire
new territories, but it is the inherent right of a sovereign State to acquire a foreign
territory and no Parliamentary legislation is required for this purpose. It is to be
noted that only ‘States' are the members of the Union of India [by virtue of Art. 1(1)].
Article 2 : Admission or Establishment of New States
Art. 2 provides : “Parliament may by law admit into the Union, or establish,
new States, on such terms and conditions as it thinks fit”.
The expression “admit” refers to the admission of a State already in existence
as a ‘State’ i.e. duly organized political community. The term “establish” refers to
the creation of a State where none existed before (In Re Berubari case AIR 1960 SC
845).
A new State may be admitted into the Union in any of the following ways - (i)
an inferior category such as a Union Territory, may be raised to the status of full
State, (ii) a foreign territory acquired by India may be made a State and admitted
into the Union, (iii) a territory separated from an existing State reorganised into a
full State. However, Art. 2 deals with admission, etc. of new States, which may be
formed of the foreign territories... Art. 2 does not refer to the territories forming
part of the existing States (Art. 3 provides for that)
5
Art. 2 confers full discretion on the Parliament as to what terms should be
imposed on the new States so admitted into the Union. The expression "by law”
indicates that a legislative action on the part of the Parliament is required for the
admission of a new State. Therefore, the acquisition of a foreign territory by India
automatically makes the said territory a part of the Indian territory under Art.
l(3)(c), but the said territory can be admitted as a State, into the Union, by the
process of law, enacted by Parliament under Art 2.
UNION AND ITS TERRITORIES
Article 3(a) : Formation of New States
Art 3(a) empowers the Parliament to form new States, by law. It may do so by
any of the following modes -
(i) by separation of territory from any State,
(ii) by uniting two or more States,
(iii) by uniting parts of States,
(iv) by uniting any territory to a part of any State.
The Constitution of India does not guarantee the territorial integrity of any
State of the Union (In Re Berubari case). Parliament may even cut away the entire
area of the State to form a new State. When a new State is formed by uniting two or
more States, the States cannot unite in some matters and not to unite in respect of
other matters.
Art3(b) to (e) : Alteration of areas, boundaries or names of States
The Parliament may, by law, (b) increase the area of any State, (c) diminish the
area of any State, (d) alter the boundaries of any State, and (e) alter the name of any
State. The Parliamentary legislation is subject to the condition laid down in Proviso
to Art. 3.
Proviso to Art. 3 - “No Bill for (his purpose shall be introduced in either House of
Parliament except on the recommendation of the President, and such a Bill has to be
referred by the President to the Legislature of that State for expressing its views
thereon”
The State Legislature is required to express its view within a specified time
period. The Parliament is not bound to accept these views. Once the Bill has been
referred to the concerned State Legislatures, and thereafter duly introduced in
Parliament, subsequent amendments seeking to make provisions different from those
contained in the original Bill at the time of its introduction, are not required to be
referred again to the State Legislatures. Also, no fresh recommendation of the
President is necessary for the consideration of the proposed amendment to the Bill
(Babulal Parate v State of Bombay AIR 1960 SC 51).
Explanation I to Art. 3 - The term “State” in clauses (a) to (e) of Art.3 includes a “Union
Territory”. But the term “State” used in Proviso to Art.3 does not
 6 CONSTmrnONAL LAW (Part-I)
include a Union Territory (the reason being that the Union Territories are under the
administration of the President himself).
Explanation II to Art. 3 - The power conferred on Parliament by clause (a) of Art. 3,
to form a new State, includes the power to form a new Union Territory also.
Article 4 : Supplemental Matter*
Axt.4(l) directs the Parliament, in case it makes a law under Art.2 or 3, to
include therein necessary provisions (supplement, incidental and consequential) for
the amendment of First and Fourth Schedules which specifies States and their
territories. Art.4(2) said that laws rela table to Art.2 or 3 do not amount to
constitutional amendments for the purposes of Art.368. Thus, such laws may be
passed by the Parliament by simple majority procedure and without going through
the special majority procedure prescribed by Art.368.

In Re Berubari Union and Exchange of Enclaves

(AIR 1960 SC 858)
In this case, the question was that does the power ofParliament to diminish
area of any State under Art 3 include also the power to cede Indian territory to a
foreign State ? This question came up for consideration before the Supreme Court,
in a reference made by President u/Art. 143. Indo-Pak agreement for resolving
certain border disputes, provided for transfer of one-half of area of Berubari Union
by TnHi« to Pakistan, and for the exchange of Cooch-Bihar enclaves. Berubari
Union was in West Bengal, so a political agitation started against the proposed
transfer of territory to Pakistan.
The questions referred to the Supreme Court were -
(a) Is any legislative action necessary for implementation of agreement
relating to Berubari Union?
(b) If so, is law of Parliament u/Art. 3 sufficient or is an amendment of
Constitution u/Art. 368 necessary, or both ?
On behalf of the Union government it was contended that agreement did
nothing more than to ascertain the true boundary of India and there was no
handing over of any Indian territory and this could be done under Executive power
of Union. The Supreme Court rejected this contention and observed that the
agreement involved cession of territory, and it \vas outside the scope of parliament
legislation.. Parliament had no such power under Art. 3(c) of the Constitution.
Construing the schemes of Arts. 2 and 3, the court held that Art. 3 deals with
internal re-adjustment inter se of territories of States. Area diminished under Art.
3(c) continues to be a part of territoiy of India. Though there is no guarantee in
Constitution about the territorial integrity of States, yet ceding
UNION AND ITS TERRITORIES
7
Indian territory to a foreign State is outside the scope of Art. 3(c) and for this an
amendment of Constitution is necessary.
The Court observed : This does not mean that there is no power to
acquire or cede territory.... Such power is an attribute of sovereignty and India
has such power both under the International law and according to the Preamble
of Constitution. If the power to acquire foreign territory, which is an attribute
of sovereignty, is not expressly conferred by the Constitution {Art. 1 does not
confer power on India to acquire territory, it merely provides for automatic
absorption of acquired territory' into the Indian territory. After such territory
is factually made a part of Indian territory, the process of law may assimilate it
either under Art. 2 or under Art. 3(a) or (b)} ...there is no reason why power to
cede territory should have been provided for by the Constitution.
Article 4(1) directs the Parliament, in case it makes a law under Art. 2 or
3, to include therein necessary provisions for amendment of First and Fourth
Schedules which specifies States and their territories. Art. 4(2) said that no such
law shall be deemed to be an amendment for the purpose of Art. 368. Thus, if
legislation is competent under Art. 3 in respect of agreement, it would .be
unnecessary to invoke Art. 368; if legislation is not competent, then Art. 368
apply. In the present case, law under the Art. 368 alone is sufficient. However, if
Parliament chooses to pass a law amending Art. 3 so as to cover the cases of
ceding to foreign States, then both Art. 368 and Art. 3 would be necessaiy. As in
that case, Parliament have to pass a law amending the Art. 3 by the use of Art.
368 and then pass a law under Art. 3 (amended) to implement the agreement.]
In Maganbhai v Union oflndia (AIR 1969 SC 783), a dispute regarding the
adjustment of boundary line between India and Pakistan was referred to a
Tribunal. The Government of India wanted to implement the award without
any Parliamentary legislation. The Court held that an agreement to refer the
dispute to a Tribunal does not amount to cession of territory and hence an
amendment of Constitution is not necessary. It only seeks to reproduce a line, a
suitable boundary, and it is so fixed. The case is one in which each State ex facie
is uncertain of its own right and, therefore, consent? to the appointment of an
arbitral machinery. It could be implemented by Government under its executive
power, and thus an amendment of Constitution is unnecessary.

FURTHER QUESTIONS
Q.l Discuss the constitutional procedure (legislative or executive) that should be adopted in
the following situations
(a) Under an agreement with a neighbouring country, to surrender 100 sq.km. > of
territory which clearly and undisputedly belongs to India/State of Gujarat.
8

(b) To hand over 50 sq.km. of disputed territory to Pakistan in pursuance of an award of

an International Tribunal.
 CONSTITUTIONAL LAW (Part-I)
(c) For implementing a treaty between India and Pakistan to convert the Line of Actual
Control, in the State of J & K, dividing the Pak-occupied Kashmir and the rest of
Kashmir, into the international border between the two countries.
(d) The king of Bhutan enters into an agreement with the Government of India by which
he seeks to transfer a part of the territory of his country to India. [C.L.C.-
92/93/94/95/96/97; L.C.I-93/94/95/97]
A.l Cession of Indian Territory to a Foreign State
The power to acquire or cede territory is not expressly conferred by the
Constitution. Articles 1 to 4 of the Constitution do not confer power on the Union to
acquire or cede a territory [In re Berubari Union and Exchange of Enclaves AIR 1960 SC
845], It may be noted that under Article 1, a territory acquired by the Union automatically
becomes Indian territory, and no Parliamentary sanction is required for that purpose, but
the formal or legal assimilation is brought about only by Parliamentary legislation made
under Art.2 or Art.3.
The power to acquire new territories is an attribute of sovereignty. The usual
modes of acquisition of territoiy by a State are cession, occupation, subjugation,
acquisition, prescription, accretion and conquest.
The power to cede Indian territory to a foreign State is outside the scope of
Parliamentary legislation, and for that a Constitutional amendment under Art.368 is
needed [In re Berubari case]. The cession of territory is to be distinguished from
settlement of a boundary dispute or a bona fide doubt or mistake as to boundaries
between India and a foreign State (Ram Kishore v UOI AIR 1966 SC 644).
In cases where there are boundary disputes and the rights of the countries involved
have yet to be ascertained, then the settlement of boundary dispute may involve transfer
of some areas which de facto are under the control of one country, even though de jure
they belong to another country, in such cases, the Supreme Court has held that there being
no cession of territory, there is no requirement of a Constitutional amendment and a mere
executive act would suffice [Maganbhai Ishwarbhai Patel v UOI AIR 1969 SC 783],
Lease in perpetuity of a part of territory of India
An Indo-Bangladesh Agreement of 1974 provided that India would lease in
perpetuity to Bangladesh the area of TEEN BIGHA to connect Dhaagram and Panbari
Monja of Bangladesh. By the Agreement of 1982, it was clarified that as a result of the
said “lease in perpetuity”, Bangladesh would have
9
undisturbed possession and use of the area leased. Further, sovereignty over the said area
would continue to vest in India; only limited rights were being granted to Bangladesh and
not all or absolute rights over the territory involved The Supreme Court held that the
agreements did not involve cession of Indian territory. It did not amount to lease or
surrender of sovereignty over the said area. The concessions given to Bangladesh over the
said area might amount to servitudes suffered by India in its territory, as known in
International law In view of the facts of the matter, there being no cession of territory nor
a lease in perpetuity, the agreements of 1974 and 1982, could be implemented without
UNION AND ITS TERRITORIES
incorporating any change in the law or in the Constitution {UOI v Sukumar Sengupta AIR
1990 SC 1692).
Decision of the cases in question
(a) It involves a cession of territory, thus, a constitutional amendment under Art.368
is needed.
(b) In view of the decision in Maganbhai case, there being no cession of territory,
an executive act would suffice.
(c) Similarly, in this case, there being no cession of territory, thus, a constitutional
amendment under Art.368 not needed.
(d) The power to acquire new territories is an attribute of sovereignty .and no
Parliamentaiy legislation is required.
Q.2 Advise the Government of India as to the procedure which is to be adopted in
each of the following cases
(a) For creating a new tribal State 'Uttarakhand’ comprising contiguous tribal
areas presently forming parts of State of Bihar, M.P. and Orissa.
(b) Enlarging the Union Territory of Delhi by adding to it the portions of the
territory of U.P. and Haryana when the State of U.P. does not consent to it.
(C) To unite three small States into one single composite one.
(d) A certain area falling within the territory of Pakistan is acquired by India
and this area has to be merged with the State of Punjab.
[C.L.C.-92-97- L.C.I-93-96]
A.2 Articles 1 to 4 demonstrate the flexibility of the Indian Constitution By a simple
majority and by ordinary legislative process, Parliament may form a new State
or alter the boundaries, etc. of existing States and thereby change the political
map of India. In re Berubari case, it was observed that the States are not
sovereign or independent, and the Constitution contemplates change of the
territorial limits of the constituent States and there is no guarantee about their
territorial
 CONSTntlTIONAL
integrity.10 Thus, it is clear that the very existence of a State LAW
depends upon the(Part-I)
sweetwill of the Central Government. Parliament has even power to cut
away the entire area of a State to form a new State.
Even though the admission or establishment of a new State will be on such
terms and conditions as Parliament may think fit, such conditions cannot be
imposed which go against the basic structure of the Constitution (R.C. Poudyal v
UOI, AIR 1993 SC 1804).
Decision of the cases in question
(a) For creating a new tribal State forming parts of three States, a legislation
under Art. 3 is required.
(b) A parliamentary legislation under Art. 3 is required. The consent of the
States is immaterial under Art. 3.
(c) A parliamentary legislation under Art.3 is required.
(d) Foreign territories acquired by India may be admitted into the Union as a
new State under Art. 2 or may be merged into an existing State under Art.
3(a) or 3(b).
*******
CHARACTER OF UNION - STATE RELATIONSHIP :
CONCEPT OF FEDERALISM
Essential Features of Federalism
The existence of co-ordinate authorities (i.e. general and regional
governments) independent of each other is the gist of the federal principle. The
exceptions are permissible provided the federal principle is predominantly
retained in the Constitution (Prof. Wheare). In a unitary Constitution, the
powers of Government are centralised in one Government i.e. Centre.
The American Constitution is universally regarded as an example of
federal Constitution. It establishes dual polity i.e. the Federal and the State
Governments. The powers of both the Central and the State Governments, are
divided and both are independent in their own spheres. A federal Constitution
usually has the following essential characteristics
(i) Distribution of Powers - The basis of distribution of powers between
Central and State Governments is that in matters of national
importance, authority is entrusted in the Union, and matters of local
importance remain with the States.
(ii) Supremacy of Constitution - Every power, executive, legislative or
judicial whether it belongs to the Centre or the State is subordinate to
and controlled by the Constitution.
(iii) A Written Constitution - The Supreme Constitution is essential if
Government is to be federal, and a written Constitution is essential if
federal Government is to work well.
(iv) Rigidity - In a rigid Constitution, the procedure of amendment is very
difficult, and the power of amendment do not remain exclusively with
 3
either Central or State Governments.
(v) Authority of Courts - The judiciary, in a federal polity, has the final
power to interpret the Constitution and guard the entrenched
provisions of Constitution.
Indian Constitution : Federal or Quasi-federal1
The Indian federalism was designed on the basis of the working of the
federalism in U.S.A., Canada and Australia. Yet it deviates from those
federalism in many respects and establishes its own distinctive features. ______
1. “Constitution of India is neither purely federal nor purely unitary but is a
combination of both”. Discuss. [IA.S.-9S]
There is a difference of opinion among scholars about the nature of Indian
Constitution — whether it is federal or not. In the following matters, it is pointed out,
the Indian Constitution modify the strict application of the federal principle
(i) Legislative Relations - Under the Art 249, Parliament is empowered to
make laws with respect to every matter enumerated in the State List, if it is
necessary in the national interest. In case of inconsistency between the
laws made by Parliament and laws made by Legislature of States, the laws
made by Parliament whether passed before or after the State law in matters
enumerated in Concurrent List, to the extent of repugnancy prevail over the
Stats law. In case of an overlapping between the matters of three lists i.e.
Union, State and Concurrent List, predominance has been given to the
Union (Art. 246).
(ii) Administrative or Executive Relations - All planning is at the Union level
(via planning commission), the States only implement the plans formulated
by the Union.
The executive power of every State has to be exercised as to ensure compliance
with the laws made by Parliament, Art. 365 authorises the President to hold thiit a
situation has arisen in which Government of a State cannot be carried on in
accordance with the provisions of Constitution, if the State tails to comply with or
give effect to any directions given in exercise of the executive power of the Union.
(iii) Financial Relations - The States depend largely upon financial assistance
from the Union. Power of taxation (which is exercisable by the States in
comparatively minor fields, the more important such as Income-tax,
wealth-tax, excise-duties other than those on certain specified articles and
customs, being reserved to the Union) conferred by various entries under
list II on the States is also severly restricted.
(iv) Parliament's power to form new States and alter boundaries of existing
States - The very existence of the State thus, under Art. 3, depends upon
the sweet will of Union,
(v) Appointment of Governors - The Governors of States are appointed by
President and answerable to him. There are provisions in Constitution
CONCEPT OF FEDERALISM 13
under which the Governor is required to send certain State laws for the
assent of President.
(vi) Emergency Provisions - Under emergency, the normal distribution of
powers between the Centre and States undergo a vital change.
Thus, in certain circumstances, the Constitution empowers the Centre to
interfere in the State matters and thus places the States in a subordinate position or
converts the Union into a unitary State, which violates the federal principle.
The similar views were expressed in State of W. B. v Union of India case (discussed
later).
In the opinion of Prof Wheare, the Constitution is almost 'quasi-federat .... a
unitan’ State with subsidiary federal features, rather than a federal State with
subsidiary unitary features. Jennings has characterised the Indian Government
system under the Constitution as 'a federation with a strong centralising tendency'.
Austin and A.H. Birch used the term "Cooperative federalism" for Indian
system i.e. it is neither purely federal nor purely unitary, but a combination of both.
To ensure cooperation between Union and States, a strong centre is there but
regional governments are not weak, and there is mutual independence of two
governments. The regional governments are partially dependent upon payments from
Centre, and the Centre by use of conditional grants, frequently promote development
in matters which are constitutionally assigned to th_ regions.
Dicey holds that the extent of federalism in India is largely w atered down by
the needs or progress and development of a country which has to be nationally
integrated, politically and economically co-ordinated, and socially, intellectually and
spiritually uplifted.
Although Dr. Ambedkar thought that our Constitution is federal "in as much
as it establishes a dual polity", he also said in the Constituent Assembly, that our
Constitution makers had avoided the 'tight mould of federalism' in which the
American Constitution was forged. Dr. Ambedkar, one of the principal architects of
our Constitution considered our Constitution to be 'both unitary as well as federal
according to the requirements of time and circumstances.'
"The correct view", observes Dr. V.N. ShukJa "is that emergency provisions
which come into operation only on the happening of the specific contingencies, do
not modify or destroy the federal system. It is rather a merit of the Constitution that
it visualises the contingencies when the strict application of the federal principle
might destroy the basic assumption on which our Constitution is built. The
Constitution by adopting itself to changed circumstances strengthenes the
Government in its endeavour to overcome the crisis. In an emergency the behaviour
of each federal Constitution is very much different from that in peace time.”
Criticism of Wheare's views
The term "quasi-federal" as suggested by Wheare is very vague as it does .lot
denote how powerful the Centre is, how much deviation there is from the pure
'federal model1, etc. It may be that Centre has been assigned a larger role than the
CONCEPT OF FEDERALISM 14
States but that by itself does not detract from the federal mature of Constitution, for
it is not the essence of federalism to say that only so much, and not more power, is to
be given to the Centre.
15 CONSTITUTIONAL LAW (Part-I)
The federalism varies from place to place, and from time to time
depending on factors like - historical, geographical, economical and political.
Indian Constitution is sufficiently federal, and it is no less federal than
American federalism. The framers of Indian Constitution kept in view the
practical needs of country designed on federal structure not on the footing that
it should conform to some theoretical or standard pattern, but on the basis that
it should be able to subserve the need of the vast and diverse country like India.
Conclusions : Indian Federalism is a 'Unique' one
India adopted a federal structure-as the different parts of the country
were at different stages of development and it would have been difficult to
control from one centre; and to ensure minorities their due place.
However, the Indian federalism is unique because of its mode of
formation i.e. from Union to States (creation of autonomous units and then
combining them into a federation), and not vice versa. It is to be noted that term
Union of States' and not 'federation' is used in the Constitution. Also, the units
have no right to secede (as in a confederation).
The Constitution of India is neither purely federal nor purely unitary, but
is a combination of both. It is a union of composite States of a novel type.
Neither the Parliament not the State legislation is 'sovereign' because each being
limited by the Constitutional provisions affecting the distribution of powers.
The Constitution enshrines the principle that in spite of federalism, the national
interest ought to be paramount. Thus, the Indian Constitution is mainly federal
with unique safeguards for enforcing national unity and growth.
The scope of application of federal principle in India is shown by the
scope of state legislatures. However, Indian federation is not defective; the
defect is political because there is a conflict between opposition-party ruled
States and the central Government. Also, federalism is not dead in India, as
evidenced by the fact that new regions are demanding statehood and union has
yielded, thus States like Manipur, Tripura, Goa, etc. have been created.
Moreover, inspite of conflicts, the opposition-party ruled States do exist.

State of West Bengal v Union of India

(AIR 1963 SC1241)
In this case, the validity of the Coal Bearing Areas (Acquisition and
Development) Act passed by the Parliament, which authorised the Union of
India to acquire any land or any right in or over land in any part of India, was
challenged by the State of West Bengal. In exercise of its powers under the Act,
the Union expressed its intention to acquire certain coal bearing lands belonging
to the State.
The plaintiff State contended that the State was sovereign within its
16 CONSTITUTIONAL LAW (Part-I)
allotted field. The contention of Union was that the acquisition of coal bearing
area is necessary for regulation of mines and mineral development and for
increased production of coal in the national or public interest.
The following issues were raised in this case:
(i) Whether Parliament has legislative competence to enact a law for
compulsory acquisition by the Union of land, etc. vested in or owned
by the State ?
(ii) Whether the State of West Bengal is a sovereign authority ?
(iii) Whether assuming that it is a sovereign authority, Parliament is
entitled to enact a law for compulsorily acquisition of its lands ?
(iv) Whether that Act or any of its provision are ultra vires the legislative
competence of Parliament ?
The Supreme Court observed that a truly federal form of Government
envisages an agreement between independent and sovereign units to surrender
partially their authority in the common interest and vesting it in a Union and
retaining the residue of authority' in the constituent units. Ordinarily each
constituent unit has its separate Constitution by which it is governed in all
matters except those surrendered to the Union, and the Constitution of Union
primarily operates upon the administration of the units. Our Constitution was
not result of any such agreement: units, constituting a unitary State, which were
non sovereign were transformed by abdication of power into a Union.
The normal corporate existence of States entitles them to enter into
contracts and invests them with power to carry on trade and business, and the
States have the right to hold property. But, having regard to certain basic
features of Constitution, the restrictions on their powers - executive, legislative
and powers of taxation - and dependence for finances upon the Union, it would
not be correct to maintain that absolute sovereignty remains vested in the
States. What appears to militate against the theory regarding the sovereignty of
States is the wide pow'er with which the Parliament is invested to alter the
boundaries of State or even to extinguish the existence of a State, by Articles 2
and 3 of Constitution.
That being the extent of the power of Parliament, it would be difficult to
held that the Parliament which is competent to destroy a State, is, on account of
some assumptions as to absolute sovereignty of the State, incompetent effectively
to acquire the property owned by the State for governmental purpose. Under
several entries of List I or Union List, it is open to the Parliament to legislate
directly upon property which are situate in States including properties W’hich
are vested in the States, for instance, Railways (Entry 22), Highways (Entry 23),
Major ports (Entry1 27), Airways Aerodromes, etc (Entry 29), Regulation of mines
and minerals development (Entry 54).
The power to effectuate its legislative authority, which is entrusted in absolute
terms being essential for carrying out of the powers, does net depend upon the
 CONCEPT OF FEDERALISM 17
consent of States. The extent of the power was aptly described in Kohl v United
States (1875) 92 U.S. 367: The powers vested by the Constitution in the Central
Government demand for their exercise the acquisition of lands in all the States. They
are needed for forts, armories, for navy yards, post-offices and court-houses and for
other public uses. If the right to acquire property for such uses made a barren right by
the action of a State prohibiting transfer of property to Union, the constitutional
grants of power may become futile and Government will become dependent for its
practical existence upon the will of a State.
The Court held : Therefore, the power of the Union to legislate in respect of
property situated in the States even if the States are regarded qua the Union as
sovereign, remain unrestricted. The nght of the Centre to require the Province to part
with property for the effective performance of central functions cannot be considered
as detracting tiom provincial autonomy.
[Note : In this case, the majority held that Constitution is not truly federal and States
are not sovereign. However, Subba Rao, J. in his dissent treats it basically federal.]
FURTHER QUESTIONS
Q.l What are the main characteristics of a Federal Constitution? In the light of these
characteristics examine whether or not the Indian Constitution can be described as a
federal Constitution? [C.L.C.-94/95 (Dec.y96]
Point out the distinct features of the Constitution of India which show that it is not a
federal Constitution in the real sense but point towards semi-federal Constitution.
Would you suggest retention of those features ?
[L.C.II-96 (stipp.); L.C.1-94/95}
“The Constitution of India does not indeed claim to establish a federal union, but the
federal principle has been introduced into its terms to such an extent that it is
justifiable to describe it as a quasi-federal Constitution. Whether, in its operations, it
will provide another example of federal government remains to be seen.” (K.C.
Wheare, Federal Government). Comment critically. [L.C.1-93]
Critically examine the following statement of the Supreme Court in State of West
Bengal v Union of India (AIR 1963 SC 1241): “The... Constitution of India is not
true to any traditional pattern of federation’-. [C.L.C.-95 (Jan.)/97]
“Federalism-in the Indian Constitution is not a matter of administrative convenience,
but one of the principles - outcome of our own historical process and a recognition of
the ground realities.” Examine critically the above observation in the light of the
decisions of the Supreme Court. \L.C.ll-94/97\
A.l Please read the Chapter 3 in its entirety. Hint to the last part of the question
Indian federalism is unique because of its mode of formation i.e. from union
to States (creation of autonomous units and then combining them into a federation),
and not vice versa.
India adopted a federal structure as the different parts of the country were at
different stages of development and it would have been difficult to control from one
centre; and to ensure minorities their due place. However, framers of Constitution
opted for a ‘strong centre’ in order to coordinate activities of various States in the
 18 CONSTITUTIONAL LAW (Part-I)
interests of uniformity' and to check fissiparous (i.e. antinational) tendencies.
Supreme Court’s views on Federalism
The view of the Supreme Court as to the nature of the Indian Constitution is
not settled. In State ofW.B. v UOI (AIR 1963 SC 1241), it was held that the Indian
Constitution is not truly federal because the States are not coordinate with the Union.
In re under Article 143 (AIR 1965 SC 745), the Supreme Court has characterized the
Indian Constitution as federal. In State of Rajasthan v UOI (AIR 1977 SC 1361), the
Supreme Court has characterized the Indian Constitution more unitary than federal.
In Satpal v State of Punjab (1982) 1 SCC 12, the court has expressed the view
that there is combination of federal structure with unitary feature in the Indian
Constitution. In Pradeep Jain v UOI (AIR 1984 SC 1420), it was held that India is
not a compact of sovereign States which have come together to form a federation by
ceding a part of their sovereignty to the federal State and thus, India cannot be
characterised as a federal State. It has certain federal features but it is still not a
federal State.
RELATIONS BETWEEN UNION AND STATES :
LEGISLATIVE POWERS
{Arts. 245-254)

The main characteristic of a federal Constitution is the distribution of powers

between the Centre and the States. The Indian Constitution provides for a new kind
of federalism to meet India’s peculiar needs. In the matter of distribution of powers,
the Framers followed the pattern of the Government of India Act, 1935. Thus,
predominance has been given to the Union Parliament over the State Legislatures or
Assemblies regarding the distribution of legislative powers.
The legislative powers are subject to the scheme of distribution of powers
between the Union and State Legislatures (as provided in three lists under the
Constitution), fundamental rights (i.e. legislative powers cannot contravene the
fundamental rights) and other provisions of the Constitution.
There are three Lists which provide for distribution of legislative powers
(under 7th Schedule to the Constitution)
(1) Union List (List I) - It contains 97 items and comprises of the subjects
which are of national importance and admit of uniform laws for the whole
of the country. Only the Union Parliament can legislate with respect to
these matters e.g. Defence, Foreign Affairs, Banking, Currency, Union
Taxes, etc.
(2) State List (List II) - It contains 66 items and comprises of subjects of local
or State interest and thus lie within the legislative competence of the State
Legislatures, viz. Public Order and Police, Health, Agriculture, Forests,
etc.
(3) Concurrent List (List III) - It contains 47 items, with respect to which, both
Union Parliament and the State Legislature have concurrent power 4 of
legislation. The Concurrent List (not found in any federal Constitution)
was to serve as a device to avoid excessive rigidity to a two-fold
distribution. It is a ‘twilight zone’, as for not so important matters, the
States can take initiative, while for the important matters, the Parliament
can do so. Besides, the States can make supplementary laws in order to
amplify the laws made by Union Parliament. The
LEGISLATIVE POWERS 19

subjects include general laws and social welfare - civil and criminal
procedure, marriage, contract, planning ^education, etc.
However, inspite of the distribution of legislative powers under the
three Lists, the predominance has been given to the Union Parliament
over the State Legislatures (For an analysis of the distribution of.
legislative powers, refer to the end of this Chapter).
The Constitution makes a two-fold distribution of legislative powers:- (I)
With respect to territory.
(I) With respect to subject matter of legislation, (i.e. three Lists).

[I] TERRITORIAL LEGISLATIVE JURISDICTION

(Art. 245)
Article 245 defines the ambit ox territorial limits of legislative powers. “C7.
(7) : Subject to the Constitutional provisions, Parliament may make laws for
whole or any part of territory of India, and a State Legislature for the territory
of that State. Cl. (2) : No law made by the Parliament would be invalid on the
ground that it would have extra-territorial operation i.e. takes effect outside the
territory of India”.
Theory of Territorial Nexus1
Art 245(1) provides that a State legislature may make laws for the territory
of that State. The State legislature can not make extra territorial laws, except
when there is sufficient connection or nexus between the State and the object i.e.
subject matter of legislation (object may not be physically located within the
territorial limits of State) (A.H. Wadia v C1T AIR 1947 FC 18).
Thus., in Wallace Bros, v CIT, Bombay (AIR 1948 PC 118), a company
which was registered in England was a partner in a firm in India. Indian income
lax authorities sought to tax entire income of the company. The Court upheld it
on the ground that derivation from British India of major part of its income for
a year gave to a company sufficient territorial connection to justify it being
treated as at home in India for all purposes of tax on its income.
In State of Bombay v RM.D.C. (AIR 1957 SC 699), the Bombay State levied
a tax on lotteries and prize competitions in the State. The tax was extended to a
newspaper printed and published in Bangalore, but had wide circulation in
Bombay. The respondent conducted the prize competition through this paper...
for which entries were received from Bombay through agents and depots
established in the State to collect entry forms and fees.
Thus, all activities which the competitor is to undertake took place mostly
in Bombay. The Court held that a sufficient
territorial nexus exist for the State [L.C.I1-94-, L.C..1-93/94/95)

1 Explain and illustrate the nexus theory.

 20 CONSTITUTIONAL LAW (Part-I)

of Bombay to tax the newspapers. If there is a “sufficient nexus" between the person
sought to be charged and the State seeking to tax him, the taxing statute would be upheld.
But. the connection must be real and not illusory (i.e. it should be on the basis of a valid
law) and the liability sought to be imposed must be pertinent to that connection (i.e. law
selects some fact which provide some connection with the State). Whether there is a
sufficient connection, is a question of fact and will be determined by the courts in each
case.

Tata Iron and Steel Co. v State of Bihar

(AIR 1958 SC 452)
In this case, the appellant company had its registered office in Bombay, factory
and works in Bihar and its head sales office in West Bengal. The Bihar Sales Tax Act
imposed a sales tax on the company's goods in the State of Bihar. The company
contended that though goods are manufactured in Bihar, but sold, delivered and
consumed outside the State. In none of these transactions did the property in goods pass
to purchasers in the State of Bihar. The theory of nexus cannot be applied to Sales Tax
legislation because such legislation is concerned with a tax on transaction of sale i.e. a
'completed' sale. The Bihar State legislature could not by giving an extended definition to
the word 'sale', impose a tax on anything which is short of a sale.
The Court observed that in a sale of goods, the goods must of necessity play an
important part, for it is the goods in which as a result of sale, the property will pass. The
presence of goods at the date of agreement for sale in the taxing State or the production
and manufacture in that State of goods, the property wherein eventually passed as a result
of sale. Wherever that might have taken place, it constituted a sufficient nexus between
the taxing State and sale. The producer or manufacturer gets his sales price in respect of
goods which were in Bihar at the date when the important event of agreement for sale
was made, or which were produced or manufactured in Bihar.
The Court observed that the nexus theory does not impose a tax, it only indicates
circumstances in which a tax imposed by a legislature may be enforced in a particular
case. And unless eventually there is a concluded sale in the sense of passing of property
in goods, no tax liability attaches under the Act (i.e. Bihar Sales Tax Act). One or more
of the several ingredients constituting a sale only furnished the connection between the
taxing State and sale.
Thus, facts of goods being in Bihar at the time of contract of sale or
production/manufacturing of goods in Bihar does not by itself constituted a 'sale'. No tax
liability actually accrued until there was a concluded sale in the sense of transfer of title.
There was no enlargement of the meaning of 'sale' but the Act only raised a fiction on the
strength of facts mentioned therein and
deemed the "sale” to have taken place in Bihar State. Those facts were used for locating
the situs of sale in Bihar State. The Court thus upheld the levy of tax ]
In Khyierbari Tea Company v State of Assam (AIR 1964 SC 925), it was held
that the State of Assam could levy tax on goods carried through its territory, although the
goods belonged to and the tax was payable by the people outside the State
In State of Bihar v Charusila Das (AIR 1959 SC 1010), the court held that a State
LEGISLATIVE POWERS 21

legislature has power to legislate with respect to charitable and religious trusts situated
within its territory, even though any part of trust property, small or large may be situated
in another State. The trust being situated in Bihar, the State has legislative power over it
and also over its trustees or their servants and agents who must be in Bihar to administer
the trust.
Thus, the doctrine of nexus is not confined to taxing statutes alone. It is equally
applicable to all kinds of legislations. In State of Bombay v Narayandas Mangilal (AIR
1958 Bom 68), the law was made by the Bombay State Legislature prohibiting bigamous
marriages contracted outside the Bombay State by the persons domiciled within the State
of Bombay. Held that there was no sufficient territorial nexus between the State of
Bombay and the marriages contracted outside the Bombay State and, therefore, the Act
was invalid.
Extra-territorial operation of Parliamentary Law2
Art. 245(2) provides that no law made by the Parliament would be invalid on the
ground that it would have extra-territorial operation i.e. takes effect outside the territory
of India. In other words, Parliamentary law will cover persons and their property
anywhere in world, and the legislation may offend the rules of international law or may
not be recognized by the foreign courts. Thus, if a citizen of India goes to France and
marries a French girl while his first wife is alive, he can be prosecuted in India for
bigamy.
In A.H. Wadia v I.T. Commr., Bombay (AIR 1949 FC 18), the Supreme Court
held : “In the case of a sovereign Legislature question of extra-territoriality of any
enactment can never be raised in the municipal court as a ground for challenging its
validity. The legislation may offend the rules of international law, may not be recognised
by foreign courts, or there may be practical difficulties in enforcing them but these are
questions of policy with which the domestic tribunals are concerned.”
This was recognised in Ashbury v Ellis (1893 AC 339) and Croft v Dunphy (1933
AC 156).
In Electronics Corpn., India v C.I.T. (AIR 1989 SC 1707), the Supreme Court has held
that law having extra-territorial operation can be banned by

2 Explain the theory of 'extra-territorial operation' of Parliamentary legislation.

[L.C.11-96 0Supp.)]
 22 CONSTITUTIONAL LAW (Part-I)

Parliament, but such law must have nexus with something in India. The Court has
observed that it is inconceivable that a law should be made by Parliament in India
which has no relationship with anything in India. Thus, the sovereign power of
Parliament to make laws with extra-territorial operation must respect the
sovereignty of other States also and therefore provocation for the law must be
found within India itself.

[II] DISTRIBUTION OF LEGISLATIVE SUBJECTS

(Art. 246)
Art. 246 provides
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters enumerated in the
List I (Union List).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause
(1), the State legislature also, have power to make laws with respect to
any of the matters enumerated in the List III 0Concurrent List).
(3) Subject to clauses (1) and (2), the State legislature has exclusive power to
make laws for such State with respect to any of the matters enumerated
in List II (State List).
(4) Parliament has power to make laws with respect to any matter for any
part of the territory of India not included in a State, notwithstanding that
such matter is a matter enumerated in the State List.
Thus, Art. 246 provides that the Parliament has exclusive power to make
laws with respect to Union List; the State legislature for the State List; and, the
Parliament and State legislature, both, for the Concurrent List.
[A] Principles of Interpretation of Lists
The distribution of subject-matters cannot be claimed to be scientifically
perfect and there happens to be overlappings between the subjects enumerated in
the three lists. Whether a particular subject falls in the sphere of one or other
government (i.e. Union or State), the Supreme Court has evolved following
principles to determine respective powers of Union and State Legislatures.
(i) Plenary power of legislature
It is an absolute power to enact laws (even if it is contrary to any
understanding or guarantee given by the State), subject only to its legislative
competence and other constitutional limitations. The Parliamentary power of
legislation to acquire property, for example, is unrestricted, as held in State of West
Bengal v Union oflndia (AIR 1963 SC 1241); R. v Burah (1878) 3 AC 889. No
limitation can be read on the ground of legislative practice or legitimate
expectations (Sri Srinivasa Theatre v Govt, of T.N. AIR 1992 SC 999). The
following points are important to understand the nature of plenary power
(1) The power to make a law includes the power to give effect to it
prospectively (i.e. for future acts) as well as retrospectively (i.e. for past
LEGISLATIVE POWERS 23

acts) (Rai Ramkrishna v State of Bihar AIR 1963 SC 1667).

(2) The meaning of a Validation Act is to remove the causes for
ineffectiveness or invalidity of actions or proceedings which are
validated by a legislative measure. A validating law is uphold first by
finding out whether legislature possesses competence over the subject
matter / and, whether by validation the legislature has removed the
defects which the courts have found in the previous law.
(3) Where an impugned Act (i.e. an Act whose validity is questioned)
passed by a State legislature is invalid on the ground that State
legislature did not have legislative competence to deal with the topic
covered by it, then even Parliament cannot validate such Act, because
such validation would give the State legislature power over subjects
outside its jurisdiction.
(4) When the legislature cure the said infirmity and pass a validating law,
it can make the said provisions of earlier law effective from the date
when it was passed. The retrospective application of law thereby
removing the basis of earlier judicial decision (i.e. a decision based on
earlier law) is not an encroachment on the judicial power. But, the
legislature cannot enact a legislation which overrule the decision of
court and not to change the existing law retrospectively.

J.K. Jute Mills v State of U.P.

(AIR 1961 SC 1534)
In this case, by a notification, U.P. Government increased the sales-tax on
jute. This notification was struck down by High Court as unauthorised and
inoperative. Thereafter, the State legislature enacted the Sales Tax (Validation)
Act, 1958. The impugned notification (dated Mar. 31, 1956) was superceded by .
a notification on Aug. 1, 1956. The present dispute relates only to the Sales Tax
effected between Apr. 1, 1956 and July 31, 1956.
It was contended that the Validation Act is itself invalid as being ultra
vires the powers of State legislature. It was further argued that sales-tax is a tax
on occasion of sales, while in the present case, sales took place between April-
July, 1956. Therefore, by the very nature of it there could be no retrospective
legislation in respect of sales-tax. Moreover, sales-tax beipg an indirect tax, the
seller who pays the tax has right to pass it on the consumer, thus imposing sales-
tax long after the sales had taken place deprives the seller of that right.
Held that the words “o« occasion of sale” have reference to the character of
transaction and not when such a tax should be imposed. It was observed in Tata Iron
C.o.' case (AIR 1958 SC 452) that a seller can collect sales-tax as a tax from purchaser,
but primary liability to pay sales-tax is on him Often, sellers by reason of competition,
find it profitable to sell goods without sales- tax. Thus, sales-tax need not be passed on
the purchaser.
The State legislature acting within its own sphere could make laws prospectively
 24 CONSTITUTIONAL LAW (Part-I)
as well as retrospectively. The validation Act is not ultra vires the power of legislature,
for the reason that it operates retrospectively.

Shri Prithvi Cotton Mills v Broach Borough Municipality

(AIR 1970 SC 192)
The Legislature may levy a tax either prospectively or retrospectively. Ordinarily,
a court hold a tax to be invalidly imposed because the power to tax is wanting or the
statute or rules are invalid or do not sufficiently create jurisdiction. Validation of a tax so
declared illegal may be done only if grounds of invalidity are capable of being removed
and in fact removed and tax thus made legal, but the legislature must have power and
competence to do so.
In this case, the Court held that Sec. 3 of Gujarat Imposition of Taxes by
Municipalities (Validation) Act, validating imposition and collection of taxes or rates by
Municipality is valid. Therefore, imposition of rates cannot be questioned on the ground
that imposition was ‘not a rate as properly understood’, but a 'tax on capital value', as
contended by Prithvi Mills.
The Court observed : The legislature had not authorised the “levy of a tax” directly
on lands and buildings as units of taxation but had authorised the “levy of a rate”. The
said Act provided for a “rate on buildings or lands situate within Municipality borough
based on capital value”.
The Court further observed that the word “rate” had acquired a special meaning in
legislative practice. In order to remove illegality, the legislature exercised its power of
redefining “rate” so as to equate it to a tax on capital value and convert the tax purported
to be collected as a “rate” into a tax on land and build'ngs. It gave a new meaning to the
expression “rate”, and while doing so it put out of action the effect of decision of the
courts to the contrary. The legislature does possess the power to levy a tax on lands and
buildings based on capital value thereof and in validating the levy on that basis, the
implication of use of word “rate” could be effectively removed and tax on land and
buildings imposed instead ]
(ii) Liberal and Harmonious Construction
Subject to the predominance of the Union list, the entries in the various lists should be
interpreted broadly. And it is the duty of the courts to ascertain whether the authority to
deai with matters falling within the jurisdiction of each legislature exists, and to define
in the particular case before them the limits of their respective powers. The Entries are
mere legislative heads and are of an enabling character. The language of the Entries
should be given the widest scope and amplitude.
In Calcutta Gas Co. v State of West Bengal (AIR 1962 SC 1044), the question
was whether the 'gas works' fall under the word ‘industry'. Interpreting entries 24 and
25 of list II harmoniously, the Supreme Court held that 'gas works’ being a specific
entry would not fall under the general entry 24. If the word 'industry' in entry 24 were to
include ‘gas and gas works’, then entry' 25 (which includes gas works) would become
redundant i.e. useless On that interpretation, ‘gas industry’ would not fall under entry 52
of list I either, for the term 'industry' in entries 52 and 24 should have a uniform
LEGISLATIVE POWERS 25

interpretation.
The Supreme Court said that ‘widest amplitude’ should be given to the language
of entries, but some of entries in different lists may overlap and may appear to be in
direct conflict with each other. It is then court's duty to reconcile entries and to bring
“harmony” between them. Entries of two lists must be read together and the language of
one interpreted and when necessary modified by that of the other. And this might mean
to construe one entry in a 'restricted' sense (i.e. meaning though less wide, but can
properly be given to it), as a 'widest' meaning (i.e. a meaning it can theoretically
possess) may result,in the overlapping.

Re C.P. and Berar Sales of Motor Spirits Taxation Act, 1939

(AIR 1939 F.C. 1)
In this case, the question was whether a tax imposed by a provincial legislature
on the sale of oil by a person who manufactures it, was bad on the ground that it was in
essence an excise duty. While a sales tax could be imposed a provincial legislature, an
excise duty could be imposed only by Federal (or Union) legislature. The entry ‘Taxes
on sale of goods...’ seem apt to cover such a tax, in provincial (or State) list. While,
Federal Government contended that an excise duty may be imposed on home produced
goods at any stage from Production to the consumption.
The Court observed that the word 'excise', as defined in Oxford Dictionary, rrieails
’a duty charged on home goods, either in the process of their manufacture °r oefore their
sale to home consumers’. The words before their sale....’ do not neccssarily lefer to retail
sales, but might be equally a reference to a sale by Producer or manufacturer to
wholesale for general distribution to consumers.
The Court said that the duties levied on the manufacturer or producer is ' in
respect of manufacture or production of the commodity taxed. The tax on sales 6f
goods is a tax levied on the ’occasion of sales of goods’. Plainly a tax levied on first
sale must in the nature of things be a tax on sale by manufacturer or producer; but it is
levied upon him qua seller and not qua manufacturer or producer.
It would be strange indeed if the Union had exclusive power to tax retail sales
when the province has exclusive power to make laws with respect to trade and
commerce, production and supply, and distribution of goods within the Provincial
boundaries. The power to make laws with respect to excise duties is
to be construed as a power .... upon manufacturer or producer ...........and it extends
no further (in practically all cases, it was so).
Thus, it was a sales-tax and the Act was not ultra vires. There is no overlapping
(or conflict) of two entries, so as to apply non-obstante clause. The Court thus
reconciled the federal power to impose ‘excise duty’ and the States’ power to impose
‘sales tax’ by limiting excise duty to a tax levied on the incidence of sale of goods.

Gujarat University v Shri Krishna

(AIR 1963 SC 703)
In this case, Shrikant, son of Shri Krishna, appeared for the S.S.C. Examination
26 CONSTITUTIONAL LAW (Part-I)
held by the State of Bombay. He took instructions in various subjects through the
medium of Marathi and answered the questions at examination also in Marathi.
Shnkant, after clearing the said examination, joined the St. Xavier's college affiliated
to the University of Gujarat, in the First Year Arts class and admitted in the section in
which instructions were imparted through medium of English. After completing the
First Year course, Shrikant applied for admission to the classes preparing for the
Intermediate Arts examination of University through the medium of English.
The Principal of the college informed Shrikant that in view of the provisions of
Gujarat University Act (Amended), 1961, he could not without the sanction of the
University permit him to attend classes in which instructions were imparted through
medium of English. Shri Krishan, father of Shrikant, then moved the Vice-Chancellor
of University for sanction to permit Shrikan' to attend “English medium class” in
college. The Registrar of university declin to grant the request, but by another letter
Shrikant was. “allowed to keep English as a medium of examination” but not for
instruction. The petitioner challenge the authority of the university to impose Gujarati
or Hindi as the exclusive medium of instruction under the powers conferred by
Gujarat University Act (Amended) 1961.
LEGISLATIVE POWERS 27

Two important questions for determination in this case were : (1) whether under
the Gujarat University Act, it is open to the university to prescribe Gujarati or Hindi or
both as an exclusive medium or media of instruction and examination in affiliated
colleges, and (2) whether legislation authorising the university to impose such media
would infringe Entry 66 of Union List.
By item 11 of List II or State List, State legislature empowered to legislate in
respect of ‘education including Universities’, subject to the items 63-66 of List I or
Union List. By item 66 ofList I, Parliament can legislate to ‘coordination and
determination of standards in institutions of higher education’. The power to legislate in
respect of ‘medium of instruction’ is not a distinct legislative head. However, it resides
with the State legislature in which power under item 11 exists, unless it is taken away by
necessary intendment to the contrary. Also, power to legislate in respect of medium of
instruction, in so far as it has a direct bearing and impact upon the legislative head of
coordination and determination of standards in institutions of higher education, must be
deemed by item 66, List I to be vested in the Union.
The State has power to prescribe the syllabi and courses of study in the
institutions named in Entry 66 (e.g. universities) and as an incident thereof it has the
power to indicate the medium in which instruction should be imparted. But the Union
Parliament lias an overriding legislative power to ensure that the syllabi and courses of
study prescribed, and the medium selected do not impair standard of education. Thus, to
the extent of overlapping, the power conferred by item 66 must prevail over that under
item 11, in so far as medium of instruction is a necessary incident of the power under
item 66.
Counsel for the University submitted that the power conferred by Entry 66 is
merely a power to coordinate and determine standards i.e. it is a power merely to
evaluate and fix standards of education. The court, however, observed that a narrow
interpretation will not be put on the generality of words, and power to legislate on a
subject should normally be held to extend to all ancilliary matters i.e. a liberal
construction should be given. The power to coordinate, therefore, is not merely power to
evaluate, it is a power to harmonise or secure relationship for concerted action. And this
power is not conditioned by existence °f a state of emergency or unequal standards
calling for the exercise of the Power. The power is absolute and unconditional.
How far State legislation relating to medium of instruction has impact upon
coordination of higher education is a matter which is susceptible of a definite or
categorical answer In imparting instructions in certain subjects, medium may have
subordinate importance and little bearing on standards of education, w'hile in others it is
of vital importance. If legislation relating to ■mposition of an exclusive medium of
instruction in regional language or in
Hindi, having regard to the absence of text books and journals, competent teachers and
incapacity of the students to understand subjects, is likely to result in lowering of
standards, that legislation would necessarily fall within item 66 of list I and would be
deemed to be excluded to that extent from the amplitude of power under item 11 of List
 28 CONSTITUTIONAL LAW (Part-I)
II
The Court thus held that the power to legislate with respect to medium of
education is a necessary incidence of coordination and determination of standards; the
State law was thus invalid.

Osmania University Teachers Association v State of Andhra Pradesh

(AIR 1987 SC 2034)
In this case, the Supreme Court struck down the A.P. Commissionerate of Higher
Education Act, 1986 on the ground that it was ultra vires the powers of the State
legislature as in effect the Act provided for 'coordination and determination of standards
in institutions for higher education, etc.' which subject is exclusively within the
competence of Parliament. A full bench of A.P. High Court earlier had upheld the
validity of the Act.
The question in this case is whether the enactment falls within Entry 66
('coordination and determination of standards in institutions of higher education’) of List
I, or Entry 25 ('Education, including technical and medical education, and Universities')
of List III (or Concurrent List). The entry 25 is also subject to the provisions of entries
63-66 of List I.
The said Act was enacted on the basis of recommendations of a committee to
study higher education system in A.P. The Committee said in its report that there is no
proper coordination and planning among various bodies like Universities, Directorate of
Higher Education, UGC, etc. There is no policy prospective in the development of higher
education system. Thus, a corporate body established under the State enactment with
powers supreme in regard to all matters pertaining to higher education. The
Commissionerate is to monitor and evaluate academic programmes. It must coordinate
academic activities of various institutions and Universities. It must oversee the
development and streamline the higher education in the entire State. It also controls the
entire fund meant for the Universities, including grants given by the Central Government
for higher education.
The appellant contended that the Act is just a duplicate of U.G.C. (University
Grants Commission) Act, and State has no legislative power at all to enact it, since, it
squarely falls under Entry 66 of List I. The respondent State, on the other hand,
contended that enactment in pith and substance falls under entry 25, List III, and not
under Entry 66, List I.
The Supreme Court observed that the Commissionerate has practically taken over
academic programs and activities of Universities, which have been rendered irrelevant if
not non-entities. The Act has been drawn by and large in the same terms as that of
U.G.C. Act. Both deal with the same subject matter i.e. coordination and determination
of excellence in standards of teaching and examinations in Universities.
In Prem Chand Jain v R.K. Chhabra (AIR 1984 SC 981), this Court has held that
UGC Act fall under Entry 66, List I. It is then unthinkable as to how the State could pass
a ‘parallel’ enactment under Entiy 25, unless it encroaches Entiy 66 such an
LEGISLATIVE POWERS 29

encroachment is patent and obvious in the present case.

[Note : In T.K.Tope, ‘Constitutional Law of India', it is expressed that the Supreme
Court took a very narrow view in striking down the Act. For, the Court itself has laid
down that exercise of incidental or consequential power is not ultra vires. For,
conferment of general statutory powers carries with it incidental or consequential
power.]
(iii) Artcilliary or Incidental Powers
It is well-settled that the power to legislate on a topic of legislation carries with it
the power to legislate on an ancilliary matter which can be said to be reasonably
included in the power given. Thus, the power to legislate w.r.t. land includes the power
w.r.t. mortgages of land as a subsidiary subject. The power to make laws on a subject
include the power to pass a valid law
retrospectively ..... The power to levy tax would include the power to enact
provisions to check tax evasion.
In R.D. Joshi v Ajit Mills (AIR 1977 SC 2279), the Court held that the punitive
measures for enforcing social legislation are part of the ancilliary powers. The Entries in
lists must be given wide meaning implying all ancilliaiy and incidental powers The
question was whether it was permissible for State legislature to enact that sums collected
by dealers by way of sales tax which was prohibited by State law, would be forfeited to
the State punitively under Entry 54 read with Entry 64 of List II. The Court held that it
was a punitive measure to enforce the Act; penal sanction for enforcing fiscal legislation
for protecting public interest is part of ancilliary powers.
Expressions ‘incidental’ and ‘ancilliary’ powers mean the powers which are
required to be exercised for the proper and effective exercise of legislative powers
expressly conferred. However, the doctrine can be invoked only in aid of the main topic
of legislation. There is a limit to ancilliary powers flowing from the legislative entries.
Therefore, the provision of the Hyderabad General Sales Tax Act that even if the
moneys were collected by the seller “otherwise than as a tax” they should be handed
over to the Government, was void inasmuch as there was no warrant for collection as tax
of that which was not a tax.
Its recovery by State from the dealer is in no way fairly and reasonably connected to the
topic of ‘tax on sale of goods’, nor can the doctrine of ancilliary power be used as a cloak
for extending the power of a legislature so as to include a matter which is specifically
provided in a separate entry. (Abdul Qader v S.T.O., Hyderabad AIR 1964 SC 922;
Kanti Lai v H.C. Patel AIR 1968 SC 445).
Thus, the power w.r.t. betting and gambling in Entry 34 of List II can't include the
power to impose taxes on betting and gambling specifically provided in Entry 62 of list
II. Similarly, it is doubtful if power to levy tax would include power to confiscate goods
as ancilliary thereto.

United Provinces v Atiqa Begum

(AIR 1941 F.C. 16)
In this case, the lessor sued lessee, for certain arrears of rent... while the latter
pleaded that remission of rent had been ordered by Local Government. The plaintiff
 30 CONSTITUTIONAL LAW (Part-I)
contended that these remissions were beyond the power of legislature of United
Province.
The Court held that it is an elementary cardinal rule of interpretation that the
words used in Constitution which confer legislative power must receive the most liberal
construction and if they are words of wide amplitude, they must be interpreted so as to
give effect to that amplitude. A general word used in an entry ...must be construed to
extend to all ancilliary or subsidiaiy matters which can fairly and reasonably be held to
be included in it.
The Court observed : It would be practically impossible to define each item in the
list in such a way as to make it exclusive of every other item in that list; and Parliament
seems to have been content to take a number of comprehensive categories and to -
describe each of them by a word of broad and general import e.g. categories as
‘education’, ‘local government’, ‘land’, etc., explained by a number of examples or
illustrations. Thus, the word ‘collection of rent’ (entry 21 of Provincial List), includes
provisions about abatement or enhancement of rent, to fix the instalments of rent, method
of collection, etc. and also remission of rent. If a Provincial legislature can legislate with
respect to the collection of rents, it must also have power to legislate with respect to any
limitation on the power of a landlord to collect rents, that is to say, with respect to the
remission of rents as well as to their collection. Item 22 of the Provincial List is
“forests”. Thus, could it reasonably be argued that power to legislate w.r.t. ‘forests' didn't
include a power to legislate with respect not only to afforestation but also to
deforestation? Item 24 is ‘fisheries’, could it reasonably be argued that this only included
the regulation of fishing itself and did not include the prohibition of fishing altogether in
particular places or at particular times ?
LEGISLATIVE POWERS 31

Thus, remission of rent is a matter covered by Entry 21, and impugned Act is an
Act with respect to remission of rent and it was within the competence of United
Provinces Legislature to enact it.]
(iv) Pith and Substance Rule3
This doctrine is applied when the legislative competence of a legislature with
regard to a particular enactment is challenged .. .when a law dealing with a subject in one
list touching on a subject in another list. In such a case, what has to be ascertained is the
pith and substance of enactment i.e. true object of legislation (and its scope and effects).
Constitutionality of a law is to be judged by its real subject matter and not by its
incidental effect on another's field. If, on examination, it is found that legislation is in
substance one on a matter assigned to the legislature (within its competence), then it
must be held valid in its entirety' even though it may touch upon matters beyond its
competence. An incidental encroachment is not prohibited. The doctrine requires that in
such a case of encroachment, the law should be read as a whole and not as a collection of
sections or clauses for determining the true nature and character of the law i.e. pith and
substance of the law.
The justification of this rule is that in a federal Constitution, clear-cut distinction
between powers of Union and State legislatures is not possible, there is bound to be
overlapping. In all such cases it is but reasonable to ask what in whole is the object or
purpose of law. The different provisions of enactment may be so closely interwined that
blind adherence to a strictly verbal interpretation would result in a large number of
statutes being declared invalid, because legislature enacting them may appear to have
legislated in a forbidden sphere (i.e. in an area not within its competence) (AS. Krishna v
State of Madras AIR 1957 SC 297). !
Entries to the legislative lists are not sources of the legislative power but are
merely topic or fields of legislation and must receive a liberal construction inspired by a
broad and general spirit and not in a narrow pedantic sense {Ujagar Prints v UOI AIR
1989 SC 516).
When a regulatory legislative measure is enacted by a legislature on a subject
within its competence requiring a person to obtain a licence for doing certain business
concerned with the subject and imposes certain restrictions upon such person to make
him conduct the business concerned for which he is granted the licence, lawfully, it
could be regarded as a legislative provision which is ancilliary to the main subject of the
regulation, when once the subject of regulation is found within the pith and substance of
the concerned legislature’s competence [Kartar Singh v State of Punjab (1994) 3 SCC
569],
In M. Ismail Faruqui v UOI (AIR 1995 SC 605), the constitutional validity of the
Acquisition of Certain Areas at Ayodhya Act, 1993 was challenged. The Act provided

3 What is the rule of pith and substance ? Why is its application necessary in our Constitution ?
“The rule of pith and substance introduces a degree of flexibility into the otherwise rigid
scheme of distribution of legislative power under the Constitution”. Justify this statement
referring to case law.
[C.L.C.-95 (Jan. & Dec.) 1A.S.-93/96]
 32 CONSTITUTIONAL LAW (Part-I)
for the acquisition by the Central Government of about 67 acres of land in the Ram
Janam Bhoomi-Babri Masjid complex to be made available to the two trusts proposed to
be sei up for the construction of a Ram Temple and a Mosque and for planned
development of the area. It was contended that the purpose of acquisition in the case did
not bring the Act within the ambit of Entry 42, List III (‘Acquisition and requisition of
property’) but was referable to Entry 1, List II ('Public Order... in aid of the civil power’)
and therefore, the Union Parliament did not have the competence to enact the impugned
Act. Held that the pith and substance of the legislation was “acquisition of property” and
not related to “public order” and therefore, the Act was valid law.

Prafulla Kumar v Bank of Commerce, Khulna53

(AIR 1947 PC. 60)
The validity of Bengal Money Lenders' Act, which limited the amount and rate of
interest recoverable by a money lender on any loan was challenged on the ground that it
was ultra vires the Bengal legislature in so far as it related to 'Promissory Notes', a
Central subject.
The Court held that the pith and substance of the Act being money- lending, a
State subject, and it was valid even though it txenched incidentally on 'Promissory
Notes'. To take a Promissory Note as security for a loan is the common practice of
money-lenders and if a legislature can't limit the liability of a borrower in respect of a
Promissory Note given by him, it can't in any real sense deal with money-lending.
Following principles are deducible from the decision m this case:-
(i) A clear-cut distinction is not possible between legislative powers of Union and
States. After having ascertained the true nature of law, the court must point out
in which of the three lists, an Act of that nature truly falls.
3a. A law passed by the State X puts restiictions on the rate of interest to be charged by the money
lenders. The law is challenged by a moneylender as being ultra vires the State legislature on
the ground that it affects the transactions of promissory notes and should be enacted
exclusively by Parliament (Union List - Entry 46 ‘Bills of Exchange, Cheques, Promissory
Notes...’). The State argues that the statute relates merely to moneylending and
moneylenders (State List - Entry 30 ‘Moneylending and Moneylenders’) and therefore-is in
Ira vires the State Legislature. Decide the case. [L.C..I-93/95]
(ii) The extent of invasion by a legislature in other list is an important matter, not
for determining validity of law, but for determining the pith and substance of
impugned Act.
(iii) Where three lists are in conflict, List I has priority over List II and III; and III
over II.
The principle of pith and substance finds support from the expression "with
respect to" used in clauses(l) to (4) of Art. 246.

State of Rajasthan v G. Chawla,b

(AIR 1959 SC 544)
In this case, the State legislature made a law restricting the use of sound
amplifiers. The respondent had violated the Act and was prosecuted. The State’s
contention was that law is within its competence since it fell under Entry 6, List II
LEGISLATIVE POWERS 33

'Public health and sanitation'. The respondent contended that the impugned law fell
under List I, Entry 31 - 'P&T, Telephones, Wireless, Broadcasting and like forms of
Communications'.
The court held that the law in its pith and substance fell substantially within the
State list, even though amplifier is an apparatus for communication ..thus incidentally
encroaching upon the Union subject. The power to legislate in relation to public health
includes the power to regulate the use of amplifiers as producers of loud noises when the
right of such user, by the disregard of the comfort and obligation to others, emerges as a
manifest 'nuisance' to them
Further, the court said : The power to make laws w.r.t. a subject matter is a power
to make laws which in reality and substance are laws upon the subject matter. It is not
enough that a law should refer or apply to subject matter : for example, income-tax laws
apply to clergymen and hotel keepers as members of public, but no one would describe
an income tax law as being a law w.r.t. clergymen or hotel-keepers.
In State of Bombay v F.N. Balsara (AIR 1951 SC 318), the Bomba}' Prohibition
Act, which prohibited sale and possession of liquors in State,
3b. “Posts, telegraphs, telephones, wireless, broadcasting and other like forms of
communication” ..... Entry 31, List I.
“Public health and sanitation ' ......... Entry 6, List II.
“Theatres and dramatic performances, cinemas, sports, entertainments and amusements.”
............................Entry 33, List 11.
Keeping in view the above entries in VII Schedule of the Constitution, discuss the validity
of the Public Nuisance Act, 1992, enacted by the State of Haryana, which authorizes thd
District Magistrates to issue orders regulating and even prohibiting the use of sound
amplifiers, loudspeakers and other means of roadside entertainments/amusements if it is so
required in public interest Acting under the above law, the D M, Gurgaon banned the use of
sound amplifiers/ loudspeakers after 10.30 p.m. [C.L.C.-94/97-, L.C.I--94]
challenged on the ground that it has encroached upon 'import and export of liquors
across customs frontier' - a Central subject. It was contended that prohibition on
‘purchase, use, possession and sale of liquor’ (a State subject) will affect the ‘import’ (a
Central subject) The court held that pith and substance fell under State-list, even though
it incidentally encroaches upon the Union-list]
(B) Residuary Powers (Art. 248)
See under the Further Questions section.

(C) Inconsistency or Repugnancy between Union and State Laws

(Article 254)4a
Clause (1) : “If any provision of a law made by State legislature is repugnant to
any provision of a law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to matters enumerated in Concurrent List,
then subject to clause (2) provisions, the Parliamentary law, whether passed before or
after State legislatures’ law, or the existing law, shall prevail and State law shall, to the
extent of repugnancy, be void”.
Art. 254(1) enumerates the rule that in the event of a conflict between a Union and
 34 CONSTITUTIONAL LAW (Part-I)
a State law, the former prevails. The Union law may have been enacted prior to the State
law or subsequent to the State law. The principle behind is that when there is legislation
covering the same ground both by the Centre and by the State, both of them competent to
enact the same, the Central law should prevail over the State law.
The expression 'existing law' refers to laws made before the commencement of
Constitution by any legislature, authority, etc. e.g. criminal law, civil procedure,
evidence, contract, etc.
‘A law made by Parliament which Parliament is competent to enact’ doesn't
include a law with respect to a matter in Union list. As, if there is a repugnancy
between.... State list.... and Union list, State legislation will be ultra vires under the Art.
246. However, a repugnancy may arise .... while legislating within their exclusive
jurisdictions and yet dealing with the same subject matter. For example, in Gujarat
University v. Shri Krishna, the court observed that a repugnancy may arise on a matter
other than in Concurrent List, and in such cases doctrine of pith and substance resorted to
resolve conflict. If Article 254(1) extended to a Union law with respect to a matter in
Union list. .. such construction of Article 254 appears illogical.
Clause (2) : enacts an exception to the rule of clause(l). “Where law made by State
legislature with respect to matters in Concurrent List contains any provision repugnant to
an earlier Parliamentary law or an existing law with respect to that matter, then State law
shall, if reserved for consideration by President and has received his assent, prevail in
that State. Provided that nothing in the clause shall prevent Parliament from enacting at
any time any law with respect to the same matter including a law adding, amending,
varying or repealing State law.”
Art. 254(2) provides for curing of repugnancy which would otherwise invalidate a
State law which is inconsistent with a Union law or an existing law (G.C. Kanungo v
State of Orissa AIR 1995 SC 1655). In order that the State law should prevail in that
State, the following conditions must be satisfied -
(i) there must be in existence a Union Law;
(ii) subsequent to the Union law the State legislature enacts a law with respect to a
matter in the Concurrent List; and
(iii) the State law having been reserved for the President’s consideration, has
received his assent thereto.
However, the proviso to Sec. 254(2) lays down that Parliament may again
supersede State legislation which has been assented to by the President under clause (2)
by making a law on the same matter. It is important that the later (Union) legislation
must deal with the same matter (as of earlier State legislation) and not distinct matter,
though of cognate and allied character. Further, in the case of repugnancy, not the entire
State law becomes void, it becomes void only to the extent it is repugnant to the Central
law [Gauri Shankar Gaur v State of U.P. (1994) 1 SCC 92],
The State law may be amended or repealed by Parliament either directly or by
enacting a law repugnant to it with respect to the same matter. Where it does not
expressly do so, even then, State law will be repealed by necessary' implication. It is
important to note that whether Parliament should enact substantive provisions on the
same subject matter... in lieu... when repealing a State law, is still an open question 411.
LEGISLATIVE POWERS 35

Case Law
The case of Zaverbhai v State of Bombay (AIR 1954 SC 752) illustrates the
application of proviso to Cl. (2), Art. 254. The Parliament enacted an Essential
 36 CONSTITUTIONAL LAW (Part-I)
Supplies Act which provided penalties e.g. imprisonment upto 3 years. The Bombay
legislature later passed an Act enhancing punishment upto 7 years. The Act received
Governor General’s assent and became operative. Subsequent to the Bombay Act,
amendments made in Central Act by Parliament with changes in punishment.
The Supreme Court held that as both occupied the same field, the Bombay Act
was impliedly repealed by Parliamentary Act, because of repugnancy. The Central Act
(amended) was comprehensive Code covering the entire field of punishment for offences
under the Act graded according to the community and character of the offence.

Deep Chand v State of U.P.

(AIR 1959 SC 648)
The case involved the validity of U.P. Transport Services Act, which authorised
State government to frame schemes of 'nationalisation of motor transport'. The law w'as
necessitated because the Central Motor Vehicles Act, 1939, did not contain any
provision for the nationalisation of Motor transport services. Later, Parliament, for
uniformity of law, amended Motor Vehicles Act, 1939, by adding a new chapter, thus,
enabling State governments to frame and execute schemes of nationalisation.
Held that two laws belong to same field and the State law, to the extent of
repugnancy, is therefore void. New chapter in the Act does not indicate that schemes
already finalised should be reopened. The law under U.P. Act subsists to support
schemes framed thereunder and becomes void only in respect of schemes framed under
Central Act.
Thus, what is void is not the entire law, but only the extent of its repugnancy.
When both pith and substpnce and period of operation coincide, repugnancy is complete
and whole Act is void. The operation of Union law may be entirely prospective (i.e.
future law) leaving State law to be effective in regard to a thing already done.
Tests of repugnancy as laid down in this case are as follows
(i) Direct conflict between the two (one say 'do', other 'don't') - State and Union
law. Thus, an inconsistency in the actual terms of the two statutes.
(ii) No apparent conflict, yet repugnancy because both cover the same field. Thus,
in Zaverbhai case, it would be no defence to argue that it is possible to obey
both the laws.
(iii) Parliament intended to lay down an exhaustive code in respect of subject
matter replacing the State Act, or (Conflict with the intentions of dominant law
to cover whole field). Thus, although there may be 110 direct conflict, yet a
State law will be inoperative.]
In Baijnath v State of Bihar (AIR 1970 SC 1436), Parliament passed the Mines
and Minerals (Regulation and Development) Act, 1957 under Entry 54 of the Union List
declaring to take under Union's control the regulation of mines and development of
minerals to the extent provided in the Act. In 1964, the Bihar Legislature enacted the
Bihar Land Reforms (Amendment) Act, 1964 amending the Bihar Land Reforms Act,
1950. The amended Act empowered the State to acquire the land found to be surplus in
the hands of the land owners. The Supreme Court held that the State law was void to the
extent of surplus area containing mines or minerals.
LEGISLATIVE POWERS 37

M. Rarunanidhi v Union of India

(AiR 1979 SC 898)
In this case, the appellant (a former chief minister of the State of T.N.) abused
official position, thus a prosecution launched under I.P.C. and Prevention of Corruption
Act. The State Act relating to Public Men (Criminal Misconduct), was passed after
obtaining President's assent and later repealed. The question arose whether action could
be taken under Central Laws i.e. I.P.C. and the Prevention of Corruption Act.
The appellant contented that even though State Act was repealed, it was repugnant
to Central Acts, thus by virtue of Cl.(2) Art. 254, Central Act provisions stood repealed
(when State Act was passed) and thus couldn't be applied for prosecuting, unless, they
are re-enacted (even after repeal of State Act). The question was whether there was
repugnancy between the State Aci and the Central Acts.
The Supreme Court held that the State Act was not repugnant (although the
definition of criminal misconduct was substantially the same in both the laws, the State
Act had created distinct and separate offences with different ingredients and
punishments; thus, no collision between the two laws) and therefore didn't repeal Central
Acts which continued to be in operation. The State Act was rather a complementary Act
and it itself provides that Central Acts to come to its aid after an investigation is
completed. It provides that public men' will have to be prosecuted under the Central
Acts.
Tests of repugnancy as laid down in this case are as follows -
(i) There is clear and direct inconsistency between State and Union law which is
irreconcilable, so that they can't stand or operate together in the same field.
(ii) There can be no repeal by implication unless inconsistency appears on the face
of two statutes.
(iii) Where two statutes occupy a particular field, but there is possibility of both
operating in same field without colliding then there is no repugnancy.
(iv) No inconsistency, but a statute occupying same field seeks to create distinct
and separate offences, then there is no repugnancy. However, a State law is
repugnant to Union law if it (i.e. Union law) is intended to be a complete
exhaustive code on subject matter. Even if no intention, same subject matter
creates repugnancy.]
In National Engg. Industries Ltd. v Shri Kishan (AIR 1988 SC 329), the Supreme
Court held that the provisions of the Rajasthan Shops and Commercial Establishments
Act, 1958 were not repugnant but supplementary to the provisions of the Industrial
Disputes Act, 1947, insofar as the State law provided safeguards to the workers in
addition to those contained in the Central Act. Similarly, held in A.K. Sabhapathy v State
of Kerala AIR 1992 SC 1310; Vijay Kumar Sharma v State of Karnataka AIR 1990 SC
2072; and, Sukumar Mukherjee v State of W.B. AIR 1993 SC 2335.]

Hoechst Pharmaceuticals Ltd. v State of Bihar

(AIR 1983 SC1019)
The issue in this case was whether there is repugnancy between Drugs (Price
 38 CONSTITUTIONAL LAW (Part-I)

Control) Order made under S.3 of Essential Commodities Act (a Union Act) and the S.5
of Bihar Finance Act (a State Act). While the former Act confers a right on the
manufacturers or producers to pass on the liability for sales tax on the consumers, the
latter Act prohibits such passing. The Union made such law under the Entry 33 of List III
i.e. Concurrent List, while the State made such law under the Entry 54 of List II i.e. State
List. Ihe appellant, Hoechst Ltd., contended that the State law which interdicts that a
dealer liable to surcharge (i.e. tax) shall not be entitled to collect it from the purchaser,
directly trenches upon the Union power to legislate with respect to fixation of price of
essential commodities. It is said that if both are valid, then ex-hypothesi law made by
Parliament must prevail and the State law pro tanto must yield.
The Court observed that the principle of supremacy of Centre laid down in Art.
246, cannot be resorted to unless there is "irreconcilable" conflict between the entries in
Union and State lists. In the case of a seeming conflict, the entries should be read
together without giving a narrow meaning to either of them. It should be considered
whether a fair reconciliation can be achieved by giving to the language of Union List a
meaning which, if less wide than it might in another context bear, is yet one that can
properly be given to it and equally giving to the language of the State list a meaning
which it can properly bear. The non-obstante clause in Art. 246(1) {i.e. notwithstanding
anything contained in clauses (2) and (3)} must operate only if such reconciliation
should prove
 LEGISLATIVE POWERS 39

impossible. Lastly, no question of conflict between two lists will arise if the
impugned legislation, by the application of doctrine of "pith and substance" appears to
fall exclusively under one list, and the encroachment upon another list is only incidental.
The above rules should be applied when resolving conflicts which arise from
overlapping powers in mutually exclusive lists- Prafulla K. Mukherjhee's case (AIR
1947 P.C. 60), State of Bombay v F.N. Balsara (AIR 1951 SC 318), A.S. Krishna v State
of Madras (AIR 1957 SC 297), M. Karunanidhi's case (AIR 1979 SC 898), Union of
India v H.S. Dhillon (AIR 1972 SC 1061).
It was further contended that the two enactments may be inconsistent where one
statute takes away the right conferred by the other, although obedience to each one of
them may be possible without disobeying the other (vide Clyde Engg. Company Ltd. v
Cowbum, an Australian High Court decision).
The Court, however, observed that the argument cannot prevail for two obvious
reasons :
(i) Entry 54 of List II, is a tax entry, and therefore there is no question of
repugnancy, because there is a complete separation of taxing powers of Union
and States under Article 246. In List I, entries 1-81 deal with general subjects
of legislation, entries 82-92-A deal with taxes. In List II, entries 1 -44 deal with
general subjects of legislation, entries 45-63 deal with taxes. In List III, there is
no entry relating to a tax/'Thus, in our Constitution, a conflict of the taxing
power of Union and of the States cannot arise.
(ii) The question of 'repugnancy' can arise only in connection with the subjects
enumerated in "Concurrent List" as regards which both the Union and State
Legislatures have concurrent powers so that the question >of conflict between
laws made by both legislatures relating to the same subject may arise.
Article 254(1) has no application to cases of repugnancy due to overlapping
between List II on one hand and List I and List III on the other. If such overlapping exists
in any particular case, the State law will be ultra vires, because of the non-obstante
clause in Article 246(1) read with the opening words "Subject to" in Article 246(3). In
such a case* tJie State law- wili not fail because of repugnancy to Union law, but due to
want of legislative competence.
It is no doubt true that expression "a law made by Parliament which Parliament is
competent to enact" in Article 254(1) is susceptible of a construction that repugnancy
between a State law and a law made by Parliament may take place outside the concurrent
sphere, because Parliament is competent to enact law with respect to subjects included in
List III as well as List I. But, if Article 254(1) is read as a whole, it will be seen that it is
expressly ma3e subject to clause (2) which makes reference to repugnancy in the field of
Concurrent List
- In other words, if clause (2) is to be the guide in determination of scope of clause (1),
the repugnancy between Union and State law must be taken to refer only to the
concurrent field.
As observed in A.S. Krishna's case (AIR 1957 SC 297), for the Section 254 to
apply, two conditions must be fulfilled, first the provisions of State and Union law
must both be in respect of a matter enumerated in Concurrent List, and second they
 40 CONSTITUTIONAL LAW (Part-I)
must be repugnant to each other.
Decision - The two Acts operate on two separate and distinct fields and both are
capable of being obeyed. There is no question of any clash between the two laws and
the question of repugnancy does not come into play.

P.K. Tripathi, "Article 254 - the Text is Explicit"40 (AIR 1986, J. 17)
The object of this paper is to present a critical examination of interpretation put
on Article 254(1) by the Division Bench of the Supreme Court, in Hoechst
Pharmaceuticals Ltd. v State of Bihar (AIR 1983 SC 1019), and to suggest grounds on
which a Constitution Bench of the Court might, hopefully, review that interpretation.
If the text is explicit, the text is conclusive alike for what it directs and what it
forbids. When the text is ambiguous, as for example when the words establishing two
mutually exclusive jurisdictions are wide enough to bring a particular power within
either, recourse must be had to the context and scheme
of the Act.
The text of Article 254 is explicit, however the Court has made violent
departures from the plain meaning of the text
(I) The Article 254 speaks of "law made by the legislature of a State", but the
court’s interpretation limits the scope of these words only to laws made by a
State on matters enumerated in Concurrent List, thereby - excluding from the
scope of Article 254(1) laws made by a State on matters in List II.
Similarly, the Article 254 speaks of "law made by Parliament which Parliament
is competent to enact", but again the interpretation limits scope of
these words only to laws made by Parliament on matters in Concurrent List, and thus
excludes from the scope of the Article all other laws made by Parliament including those
on matters enumerated in List I.
The Court seems to justify these departures from text .. by referring to clause (2)
of Article 254, as it refers only to laws in respect of Concurrent List and it is an
exception to clause (1), this should control the scope of clause (1). However, the court
failed to consider that the scope of an exception is inevitably narrower than the main
provision.
(II) Restrictive interpretation put on Article 254 in Hoechst's Case
Hoechst opinion is dominated by a blurring of concepts of the overlapping of
legislative fields, on the one hand, and repugnancy between the two valid laws by
different legislatures on the other. It is because of the blurring that the court is unable to
appreciate the phenomenon of overlapping, as also the way the doctrine of pith and
substance has dealt with that phenomenon. The doctrine misunderstood in the sense that
it was held by court in that case that the validity of a law must be judged, in case of an
overlapping, only on basis of this doctrine.
The doctrine of pith and substance mitigates the rigour of the non-obstante clause
and permits a State law on a matter in List II to survive inspite of the fact that it covers
an area which can also be covered (due to overlapping of legislative fields) by a
Parliamentary law. But, the doctrine does not prevent Parliament either from legislating
on the "common overlapping area"; and if Parliament also legislates on that area we
LEGISLATIVE POWERS 41

have two %'alid laws on the same matter which might be repugnant to each other. If that
happens, Article 254 decides which of the two is to survive.
The doctrine of pith and substance deals with a law, all by itself, to examine
whether it is within the competence of the legislature which passed it; the doctnne of
repugnancy examines two valid laws to see whether they are capable of co-existing.
Thus, validity of a law made by the State must be judged at two stages. At the first stage
it must be examined, under Article 246, to ascertain whether it is within the competence
of State legislature to enact the law. It is here that the doctrine of pith and substance is
pressed into se'rvice in case of overlapping of the subject matter of different lists. If the
law is found to be ultra vires the State legislature, there is no question of proceeding to
examine it under Article 254 for repugnancy. Article 254 predicates a “law made by the
State”, and if the law is found to be ultra vires under Article 246, then there is no "law
made by the State". It is only when the law made by the State is a valid law, that the
question °f application of Article 254 can arise.
The Hoechst opinion, on the contrary, concludes that if the State law on a matter
in List II is a valid law, then it is not subject to the scrutiny under
Article 254 not even if subsequently Parliament passes a valid law which is repugnant to
such State law. This indeed would, in effect, exclude Parliament from the area where the
legislative fields overlap. To permit the State to pass money lending legislation directly
seeking to regulate borrowings made through promissory notes is one thing, it is quite
another to say that Parliament cannot, thereafter, effectively annul the effect on
promissory notes of such State law by enacting an inconsistent or repugnant legislation
on the subject of negotiable instruments.
In two recent cases, Kantian Devan Hill Produce Co. Ltd. v State of Kerala (AIR
1972 SC 2301), and Fateh Chand v State of Maharashtra (AIR 1977 SC 1825), the
Supreme Court applied Article 254 (1) to situations in which the validity of State law's
on matters enumerated in List II was challenged under Article 254(1) on the ground of
repugnancy with laws made by Parliament.]

LEGISLATIVE POWERS : PREDOMINANCE OF UNION LAW AND

LIMITATIONS OF STATE LEGISLATURES
(i) In case of an overlapping between the three lists, regarding a matter, the
predominance is given to the Union (Article 246). Thus, entries in State List
have to be interpreted according to those in the Union and Concurrent Lists.
(ii) In the concurrent sphere, in case of a repugnancy or inconsistency between a
Union and State law relating to the same subject - the Union law prevails
(Article 254).
(iii) Extensive nature of Union List - Some subjects normally intended to be in the
jurisdiction of States are in the Union List e.g. Industries, Universities,
Election and Audit, Inter-state trade and rivers, etc.
(iv) Residuary powers - (Article 248) - Power to legislate with respect to any
matter not enumerated in any of the three lists (e.g. imposition of taxes) is
given to the Union.
(v) Expansion of powers of Union legislature under certain circumstances
42 CONSTITUTIONAL LAW (Part-I)
- (Article 249) - In the following situations, Parliament can legislate with
respect to State List subjects :
(a) When State Council declares by a resolution of 2/3rd majority that it is
necessary in national interest,
(b) Under a Proclamation of Emergency,
(c) Failure of Constitutional machinery in a State,
(d) By agreement between the States i.e. with the consent of State
Legislatures,
(e) To implement treaties.
LEGISLATIVE POWERS
43
(vi) Distribution of legislative powers do not apply to Union TeYntories in which
Parliament can legislate with respect to 'any subject' including those in the
State List.
(vii) Certain types of Bill cannot be moved in State legislatures without previous
sanction of President. Also, certain Bills passed by State legislatures cannot
become operative until receive President's assent, after having been reserved
for his consideration by Governor of State.
The rationale for such distribution of legislative powers between Union and
States, is that a strong Centre is necessary to coordinate the activities of various States
in the interest of uniformity and to check fissiparous or antinational tendencies.

FURTHER QUESTIONS
Q.5(a) An Act of Parliament is declared unconstitutional by the Supreme Court. The Parliament
re-enacts that Act after removing the unconstitutionality and makes it retrospectively
applicable from the same date from which the original Act applied. Can the amended
Act be challenged on the ground of its retrospectivity ? [C.L.C.-95 (Jan. &
Dec.)]
(b) An Act of Parliament terminates/abates all judicial proceedings concerning a disputed plot
of land without providing any alternative dispute-resolution mechanism. Can such law
be challenged on the ground of lack of competence ? [C.L.C.-95 (Jan.)]
A.5(a) See ‘Plenary power of legislature’, under the Chapter 4. In the case in question,
the Parliament is competent to pass a validation Act and make it retrospective
in operation.
(b) Legislation declaring earlier judicial decisions invalid is unconstitutional
A Legislature has power to render ineffective the earlier judicial decisions by
removing/altering/neutralising the legal basis in the unamended law on which such
decisions were founded even retrospectively, but it does not have the power to render
ineffective the earlier decisions by making a law- which simply declares the earlier
decision as invalid or not binding for such power if exercised would not be a legislative
power but a judicial power which cannot be encroached upon by a legislature under our
Constitution [In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522;
G.C. Kanungo v State of Orissa (1995) 4 .IT (SC) 589; S.R. Bhagwat v State of Mysore
AIR 1996 SC 188],
Adjudication of the rights of the parties according to law is a judicial function.
On the other hand, it is for the legislature to lay down the law prescribing norms of
conduct and that is legislative Junction. In view of this distinction, the legislature cannot
by a bare declaration, directly overrule or reverse a judicial decision, it may, at any time,
in exercise of plenary powers conferred on it by Article 245 and 246 render a judicial
decision ineffective by enacting a valid law on a topic within its legislative field
fundamentally altering or changing with retrospective, curative or neutralising effect the
conditions on which such decision is based The rendering ineffective of judgements or
orders of courts by changing their basis by legislative enactment is well-known pattern
of all validating Acts Such validating legislation which removes the causes for
ineffectiveness or invalidity of actions or proceedings is not an encroachment on
 44 CONSTITUTIONAL LAW (Part-I)
judicial powers (I. S'. Saxena v State ofM.P. AIR 1976 SC 2250).
In State of Haryana v Karnal Co-opt. Farmer's Society (1993) 2 SCC 363, it was
held that the Punjab Village Common Lands (Regulation) Haiyana Amendment Act,
1981 which merely directs the Assistant Collector to disregard or disobey the earlier civil
court's decrees/orders (i.e. retrospectively) is unconstitutional as being an encroachment
on judicial power.
On similar logic, in the case in question, an Act of Parliament which
terminates/abates all judicial proceedings concerning a disputed plot of land without
providing any alternative dispute-resolution mechanism would be tantamount to the
exercise of judicial power of the State which is ultra vires the power of the legislature.
Q.6 Explain with the help of decided cases the meaning and scope of the rule of Harmonious
construction in interpreting the Constitution of India.
[L.C.1-94/96, C.LC.-92]
(a) In the exercise of its exclusive power to impose “taxes on the sale/purchase of goods”,
the State of U.P. imposes a tax at the rate of ten per cent on all food items sold in that
State whether produced in that State or in any other State in India or abroad. The validity
of tax is challenged by a consumer organisation on the ground that it is an encroachment
on the exclusive power of Parliament to impose “Duties of excise on... goods... produced
in India” and “Duties of customs”. How will you decide this dispute ?
[C.L.C.-95 (Jan.)]
(b) Entry 66, List I reads : "Coordination and determination of standards in institutions of
higher education research and scientific and technical institutions”.
Entry 25, List II reads : “Education, including technical education, medical education and
universities, subject to the provisions of Entries 63, 64. 65 and 66 of List I...”
State of U.P. enacts a law prescribing Hindi as the exclusive medium of instruction in all
the State Universities and medical colleges Discuss the validity of the U.P. law Will your
answer be different if the Union Parliament passes a similar law applicable to all
universities, medical colleges in the country ? [C.L.C.-93/96]
What would be your answer when the State of U.P. with a view to providing socially
relevant and employment-oriented education from primary to university level, passes an
Act providing inter alia for the creation of U.P. Education Commission to supervise
and suggest changes in the education system of the State. [C.LC-95
A.6 Doctrine of Harmonious Construction
The doctrine lays down that “every effort should be made to give effect to all the
provisions of an Act by harmonising any apparent conflict between two or more of its
provisions”. A construction that reduces one of the provisions to a “useless lumber" or
“dead letter” is not harmonious construction To harmonise is not to destroy. To
harmonise does not mean to defeat the purpose of Act. It means striking the balance and
giving effect to meaning of both words. All provisions of a statute have their own
importance so this rule protects the rights/interests of society at large.
The court may harmoniously construe the provisions, by regarding two or more
apparently conflicting provisions as dealing with separate situations or by holding that
one provision merely provides for an exception to the general rule contained in the other.
LEGISLATIVE POWERS 45

The question as to whether separate provisions of the same statute are overlapping or are
mutually exclusive may however, be very difficult to determine. The basis of the
principle of harmonious construction probably is that the legislature must not have
intended to contradict itself.
In KM. Natidvati v State of Bombay (AIR 1961 SC 112), the court held that the
apparently absolute power of Governor under Art 161 of Constitution to grant
pardon/suspend a sentence passed on an accused person is not available during the
period the matter becomes sub judice before the Supreme Court (l e. matter has been
referred to the court), as otherwise it will conflict with the judicial power of that court
provided under Art. 142.
InMSM Sharma v Shri Krishna Sinha (AIR 1959 SC 395), the Supreme Court
resolved the conflict between Arts. 19(1) (a) and 194 (3) of the Constitution and held
that the right of freedom of speech under Art. 19(l)(a) is to be read as subject to powers,
privileges and immunities of a House of the Legislature as declared by Art. 194(3).
In Keshavananda Bharati v State of Kerala (AIR 1973 SC 1461), the Supreme
Court held that the Fundamental Rights and Directive Principles are conscience of the
Constitution and in cases of conflicts the court should endeavour to maintain both of
them by applying the principle of harmonious construction. The court established a fair
balance between the individual interests and the welfare of the society.
The doctrine and the legislative lists
Whenever the entries in different lists are found to overlap or conflict with each
other, the court applies the doctrine of harmonious construction so as to reconcile them
and bring about harmony between them. However, when reconciliation becomes
impossible, then Union List is to prevail (in view of the non-obstcmte clause in Art.
246).
In re C.P. & Berar, Sales of Motor Spirits and Lubricants Taxation Act 1939 (AIR
1939 FC 1), Gwyer, C.J. reconciled the federal power to impose ‘excise duty’ and the
States’ power to impose ‘sales tax’ by limiting excise duty to a tax levied on the
incidence of sale of goods. This was done on the principle of harmonious construction,
wherein Entry 48 of List II was read along with Entry 45 of List I, and each Entry was
modified in the light of the other so that effect could be given to both.
In O N. Mahindra v Bar Council (AIR 1968 SC 888), the issue was whether the
Advocates Act fell under Entries 77 and 78 of the Union List or under Entry 26 of the
Concurrent List. Entry 77 provides for ‘Constitution, organisation, jurisdiction and
powers of the Supreme Court.., persons entitled to practice before the Supreme Court’.
Entry 78 provides similarly for the ‘High Courts’. Entry 26 provides for ‘Legal, medical
and other professions’. The court applied the doctrine of harmonious construction and
held that all the advocates are entitled to practise before the Supreme Court and the High
Courts and therefore, the Advocates Act should be treated as a legislation falling under
Entries 77 and 78 of the Union List. However, the power to legislate with respect to the
other legal practitioners falls under Entry 26 of the Concurrent List.
In State of Bombay v F.N. Balsara (AIR 1951 SC 318), the Bombay Prohibition
Act which prohibited the sale and possession of liquors in the State was challenged. The
 46 CONSTITUTIONAL LAW (Part-I)
possession, production, sale, etc. of intoxicating liquors fall under Entry 8 of the State
List while import of liquors under Entry 41 of Union List. The Supreme Court gave a
narrow meaning to the word “import” and held that it should not be taken to mean that
importer of prohibited liquor in the State of Bombay could possess and sell it. The Act
was held valid. (See more cases in the Chapter 4).
Decision of the cases in question
(a) In view of the decision in re C.P. Berar case, the State law does not encroach
upon the power of the Parliament to impose excise or custom duties.
(b) In Gujarat University v Shri Krishna (AIR 1963 SC 703), it was held that the
power to legislate with respect to medium of education was a necessary
incidence of coordination and determination of standards; the State law was
thus held to be invalid. [For details, see under the text of Chapter 4],
LEGISLATIVE POWERS 86

In Osmania Univ. Teachers Asscn. v State of A.P. (AIR 1987 SC 2034) the Union
set up the University Grants Commission for coordination and determination of standards
under Entry 66, List I. The State of Andhra Pradesh acting under Entry 25, List II set up a
commission similar to U.G.C. to coordinate and determine standards for the State. The
Supreme Court held the State law to be ultra vires as by the principle of harmonious
construction the power to coordinate and determine .standards was excluded from Entry
25, List II
In State ofT.N. v Adhiyaman Ed. & Res. Institute (1995) 4 SCC 104, the Union
acting under Entry 66 (List I) created the All India Council for Technical Education and
gave it power to recognize and de-recognize colleges. The State acting under Entry 25
(List II) laid down even higher standards then that laid down by the Central Council and
assumed the power to recognize and derecognize colleges of technical education. Held
that State law directly impinged upon coordinated and integrated development of
technical education and was thus ultra vires. The word “co-ordination” was held to mean
harmonization with a view to forge a uniform pattern.
In the case in question, power to prescribe medium of instruction in higher
institutions belong to Entry 66, List I. Thus, State of U.P. cannot make a valid law on this
subject, regardless of the existence of a Parliamentary law under Entry 66, List I.
Second part of question - In view of the decision in Osmania University case, settmg up
of U.P. Education Commission by the State of U.P. is ultra vires the Constitution.
Q.7 Write short notes on the following
(a) Distinction between doctrines of ‘harmonious construction’ and ‘pith and substance'.
[C.L.C.-92/96]
(b) Doctrine of colourable legislation. [L.C.1-95]
A.7(a) Distinction between Doctrines of Harmonious Construction and Pith and
Substance
(i) Both, the doctrine of pith and substance and the doctrine of harmonious
construction, are used for the interpretation of entries in the three lists of
the Seventh Schedule of the Constitution. There need not be a law made
by the Parliament under an entry, both the doctrines will apply regardless.
(ii) When a subject is apparently covered in both the Union and State List, the
rule pf harmonious construction is applied. When a law dealing with a
subject in one list touching on a subject in another list, the rule of pith and
substance is applied.
(iii) The purpose of the harmonious construction rule is to prevent or
avoid mconsistency/repugnancy/apparent conflict between two
48 —rtWsmiJTlONAL LAW (Part-I)
— - - . v

lists, and giving effect to meaning of both entries. Entnefs of two lists
must be read together and the language of one interpreted and, when
necessary, modified by that of the other.
The purpose of pith and substance rule is also to avoid apparent conflict
between two lists, but the method adopted by it to do so is different. If the
law is in substance upon a matter assigned to legislature, then
notwithstanding incidental encroachments upon an entry reserved for
another legislature, it is upheld as valid.
 (iv) Both the doctrines though distinct, are similar in action as they prevent
many State laws from being declared invalid, which would have been the
result if the non-obstante clause in Art. 246 was used unmitigated by
these principles. It may be noted that if reconciliation between entries of
Union and State List ?j> not possible, then in view of Art. 246, Union
List is to prevail over
s State List.
(b) Doctrine of Colourable Legislation
The Constitution distributes the legislative powers between the Parliament and the
State Legislature, and, they are required to act within their respective spheres. Often the
question arises as to whether or not the legislature enacting the law has transgressed the
limits of its constitutional powers. Such transgression may be patent, manifest or direct,
but it may also be disguised, covert and indirect The doctrine of colourable legislation is
applied when the transgression is disguised, covert and indirect. The ‘ colourable
legislation” simply means a legislation which, while transgressing Constitutional
Limitation, is made to appear as if it were quite constitutional.
If the law enacted by the legislature is found in substance and in reality beyond
the competence of the legislature enacting it, it will be ultra vires and void, even though
it apparently purports to be within the competence of the legislature enacting it. It is the
substance of the Act that is material and not merely the form or outward appearance.
This doctrine is based on the maxim that 'what one cannot do directly, that cannot be
done indirectly’. The legislature cannot violate the constitutional limitations by
employing indirect methods (K.C.G. Narayan Deo v State of Orissa AIR 1953 SC 375).
‘Colourability ’ is thus bound up with incompetency and not tainted with bad faitli
or evil motive If the legislature has power to make law, motive in making the law is
irrelevant (Nageshwar v A.P.S.R.T. C'orpn. AIR 1959 SC 316). A thing is colourable
which in appearance only and not in reality', what it purports to be. The court will look
into the true nature and character of the legislation and for that its object, purpose or
design to make law on a subject is relevant and not its motive (Jalan Trading v Mill
Mazdoor Sabha AIR 1967 SC 691).
LEGISLATIVE POWERS
49
In State of Bihar v Kameshwar Singh (AIR 1952 SC 252), the court held that the
Bihar Land Reforms Act, 1950 apparently purported to lay down rule for determination
of compensation but in reality it did not lay down such rule and indirectly sought to
deprive the petitioner of his property without an\ compensation and hence it was a
colourable legislation and invalid.
In K. T. Moopil Nair v State of Kerala (AIR 1961 SC 252), the Travancore
Cochin Land Tax Act was held to be invalid on the ground that the Act apparently
purported to be a Taxing Act but in reality it was not so but was confiscatory in
character.
In State ofM.P. vMahalaxmi Fabric Mills Ltd. (AIR 1995 SC 2213), the Central
Government was vested with the power under Sec. 9(3) of the Mines and Minerals
(Regulation and Developent) Act, 1957 to increase the rates of royalty to any higher
amount once during every three years. In 1982, several coal producing States imposed
coat development cess and started receiving revenue for effecting development of their
mining areas. However, the cess was held to be invalid and beyond the legislative
competence of the State Legislatures The State concerned approached the Central
Government The Parliament passed the Cess and other Taxes on Minerals Validating
Ordinance, 1992 for validating the cess paid by the coal consumers. Subsequently, a
notification was issued by the Central Government increasing the royalty rates from 400
per cent to 2000 per cent
It was contended that the Notification was a colourable device and it was issued
not for the development of minerals but for a collateral purpose of compensating the
State Governments. The Supreme Court upheld the validity of the Notification and held
that it could not be said to be a colourable device. Hie minerals belonged to the States,
and and if the Central Govemmant had taken into consideration the fact that State
revenues were required to be re- compensated on account of the loss suffered by them in
their abortive effort to escalate the royalty, it could not be considered to be an irrelevant
consideration.
Q.8 Discuss the scope of Residuary Powers ofParliament particularly with reference to a
subject which had been excluded from Union List but is not included in any other List
also. [C.L.C.-95/97, L.C.Il-94'95 96 (supp.V'97J
Write a short note on Residuary powers ofParliament. [L.C.I-94 95/96]
“Distribution of legislative powers between the Union and the States has been heavily
tilted in favour of the Union by a liberal interpretation of the residuary power clause by
the Supreme Court”. Discuss. [I.A.S.-92]
Entry 82 of List I authorizes Parliament to impose “taxes on income other than
agricultural income”, but there is no entry in List II in respecl of agricultural income.
Can Parliament make a law imposing a tax on agricultural income, even if this power is
expressly excluded from Entry 82, List I . Does it make any difference in vour answer if
the impugned law is a State lavv. \CL.C.-92/93/94/96\
A.8 Residuary Powers (Art. 248)
Article 248 : “Parliament has exclusive power to make any law with respect to any
matter not enumerated in List II or III. Such power shall include the power of making
any law imposing a tax not mentioned in either of those lists” (It is to be noted that
 50 CONSTITUTIONAL LAW (Part-I)
before independence, Governor General had such
powers).
Entry 97 of List I also lays down that Parliament has exclusive power to make
laws with respect to any matter not enumerated in List II or III.
Article 248 and Entry 97, List I, assign residuary powers of legislation exclusively
to the Union Parliament. If no entry in any of the three lists covers a piece of legislation,
it must be regarded as a matter not enumerated in any of the three lists, and belonging
exclusively to Parliament under Entiy 97, List I. By virtue of Art. 248, Parliament has
exclusive power to make any law with respect to any matter not enumerated in List II or
List III, and for this purpose, and to avoid any doubts, Entiy 97 has also been included in
List I. In other words, the scope and extent of Art. 248 is identified with that of Entry 97,
List I (Hari Krishna Bhargava v UOI AIR 1966 SC 619).
However, scope of residuaiy powers is restricted, as the three lists covers all
possible subjects and because of the court's interpretation as to a matter falls under
residuary powers or not. The rationale behind such powers is that it enables Parliament
to legislate on any subject which has escaped the scrutiny of the House, and the subject
which is not recognizable at present. However, the framers of Constitution intended that
recourse to residuaiy powers should be the last resort, and not the first step. Residuaiy
powers is a well-known convention in federal Constitutions. In USA, and Australia, such
powers are vested in States, while in Canada, in the Centre. Nevertheless, residuaiy
powers are criticised, as they promote a ‘strong’ Centre and curb the autonomy of States.
There is no field of legislation which has not been allotted either to Parliament or
to the State Legislature and therefore, if a law made by Parliament is challenged on the
ground that it is beyond its legislative competence, it is enough to inquire, if it is with
respect to any matters enumerated in the State List and if it is not so, no further question
arises (i.e. it would be unnecessaiy to go into the question whether it falls under any
entry in the Union or Concurrent List). Parliament can combine its power under an Entiy'
in the Union List or Concurrent List and the residuary power under Art. 248 [UOI v H.S.
Dhillon’s case; Kartar Singh v State of Punjab (1994) 3 SCC 569],
It may be noted that apart from residuary subjects covered in Art. 248 and Entiy
97 of List I, legislative subjects and powers can be found in other provisions of the
Constitution also such as - Art. 119 (Regulation by law of procedure in
Parliament in relation to financial business), Art. 209 (similarly provides for State
Legislature), and Art. 262 (Parliament’s power to provide for adjudication of water
disputes between States by law). In case of conflict/overlapping between such power and
an entry in any of the three lists, the former would prevail (In the matter of Cauvery
Water Disputes Tribunal AIR 1992 SC 522).
Several Acts have been enacted by Parliament under its residuaiy power. For
example, the Wealth Tax Act (UOI v Dhillon's case), Gift fax Act, Commissions of
Inquiry Act, etc. which have been held valid under the residuary power of Parliament.

Union of India v H.S. Dhilion

(AIR 1972 SC 1061)
In this case, the issue was whether the Parliament had legislative competence to
LEGISLATIVE POWERS
51
pass Wealth-Tax Act imposing wealth tax on the assets of a person in agricultural land.
The Wealth-Tax Act, 1957, was amended by Finance Act, 1969, to include the capital
value of agricultural land for the purpose of computing net wealth. The relevant entries
in this case were : Entry 86 (List I) which includes Taxes on capital value of assets,
exclusive of agricultural land'; Entry 49 (List II) which includes 'Taxes on lands and
buildings'; and Entry 97 (List I).
Two major questions that arose for consideration in this case were: (i) whether the
scope and extent of Article 248 should be identified with Entry 97,
(ii) whether the subject matter of Entry 97, by virtue of the words 'any other matter not
enumerated in List II or III', is inclusive of the subject-matter of entries 1-96.
The High Court held that S.24 of the Finance Act, 1969 in so far as it amended the
relevant provisions of Wealth Tax Act, 1957, was beyond the legislative competence of
Parliament. The case came up for consideration before the Supreme Court.
It was argued on behalf of the Union that the impugned Act is not a law with
respect to any entry (including entry in List II), if this is so, it must necessarily fall within
the legislative competence of Parliament under entry 86, read with entry 97 or entry 97
by itself read with Art. 248 of Constitution. The words "exclusive of agricultural land" in
entry 86 could not cut down the scope of the entry 97 or Art. 248 of Constitution.
The submissions of the respondents, on the other hand, were: It was the scheme of
Constitution to give States exclusive powers to legislate in respect of agricultural land or
income on agricultural land and taxes thereon; in this context the object and effect of
specially excluding agricultural land from the scope of entry 86 was also to take it out of
ambit of entry 97, List I and Art.
248' the High Court was wrong in holding that impugned Act was not a law in respect of
entry 49, List II.
The Supreme Court observed that the Art 246 read with three lists confers positive
powers on Parliament and State legislatures as demarcated in three Lists, but matters
enumerated in three lists do not by themselves enable Parliament or State Legislatures to
make laws. The residuary powers are conferred exclusively on Parliament by the Art.
248. There is a difference between entry 97 of List I and the Art. 248, as the entry 97
indicates only the subject-matter while Art. 248 is an enabling provision and enable
Parliament to make laws.
The observations of the court in this case could be summarised as follows -
(i) Art. 246(1) provides that notwithstanding anything in clauses (2) and
(3) of this Article, Parliament has exclusive pow er to make laws with respect
to List I or Union List. There are 97 subjects or entries in List I.
Reading Art. 248 in the context of Art. 246(1), it is logical to construe that
there is no overlapping between the two, and ambit of Art 248 is distinct
....otherwise, Art. 248 would become superfluous (or unimportant), as entry 97
ofList I could have taken care of the residuary powers.
(ii) The fallacy or mistake lies in reading entry 97, List I, along with Article 248,
and not with Article 246 (1). Parliament is empowered to make law with
 52 CONSTITUTIONAL LAW (Part-I)
respect to matter in entry 97, by virtue of Article 246 (1) and not Article 248.
(iii) Entry 97 is one of the amongst 97 entries enumerated in List I, and should be
treated like other entries in List I. It, therefore, should not be construed to mean
a topic mentioned by w'ay of exclusion of topics mentioned in entries 1-96. The
words "any other matter" in entry 97 really refer to matters contained in each of
entries 1-96 (i.e. matters not enumerated in 1-96), such words have to be used
because entry 97 follows entries 1-96.
(iv) Thus, Article 248 should include within its powers only those matters which are
not enumerated in any of three lists. And, thus, residuary power cannot include
power exclusively given to the Parliament under Article 246 (1).
(v) There is no prohibition for enacting in a single statute, matters which call for
exercise of two or more entries. Assuming Wealth Tax Act is a legislation
under Entry 86, List I, there is nothing in the Constitution to prevent Parliament
from combining its powers under Entry 86 with its powers under Entry 97.
Thus, the impugned Act is valid.
Comments - In Union oflndia v U.S. Dhillon, the Supreme Court refashioned the
legislative relations between Union and States. The Court held that in case of a
central legislation... the proper test was to inquire whether the matter fall in List II or
III. If matter doesn't fall under List II, Parliament will be competent to legislate on it
under its residuary power in Entry 97 of List I . . .in such a case it becomes
immaterial whether it falls under Entries 1-96 of List I. Thus, Entry 97 became
primary entry , while 1 -96 of secondary importance. This construction inevitably
results in giving a restricted meaning to entries 1-96 in List I at the expense of entries
in List II, thereby considerably toning down their importance. Then, the doctrine of
harmonious construction will find less application with fewer cases of overlapping of
jurisdictions.
But, in International Tourism Corp. v State of Haryana (AIR 1981 SC 774),
the Supreme Court held that, where the competing entries are an entry in List II and
entry 97 of List I, the entry in State list must be given a broad and plentiful
interpretation and residuary' power can't be so expansively interpreted as to whittle
down (or destroy) the power of State legislature. Before exclusive legislative
competence can be claimed for Parliament by resorting to residuary power, the
legislative incompetence of State must be clearly established.
(However, Dhillon's decision ... of the larger Bench, is still a binding
law).
Decision of the case in question
The impugned law of Parliament is relatable to Entry 97, List I, and it is
therefore valid. If this power is located in Entry 97 (Union List), by implication • it
does not exist in Lists II or III, therefore a similar State law would be ultra vires.
Q.9 Examine as to whether or not Art. 254 (1) can be invoked for resolving the legislative
conflicts in the following cases
(a) A law made by a State in exercise of its legislative power under entry 30 of
List II comes in conflict with a law made by Parliament in exercise of its
LEGISLATIVE POWERS
53
legislative power under entry 46 of List I.
(b) A law made by a State in exercise of its legislative power under entry 42 of List
III comes in conflict with a law made by Parliament in exercise of its
legislative power under entry 35 of List III [C.L C.-95/96V7]
A.9 Repugnancy (Art. 254)
For details relating to Repugnancy, see the text of this Chapter.
According to Art. 254(1), to constitute repugnancy between the Union law and
the State law, both must be with respect to a matter enumerated in the i'ist III i.e.
Concurrent List and must be repugnant to each other. The repugnancy here means
“irreconcilable inconsistency”. The repugnancy must be clear, direct
and irreconcilable i.e. the provisions of the two Acts are such that they cannot stand
together or operate in the same field. If they can operate in the same field (related to the
same entry in the List III) without coming into conflict with each other, there will be no
repugnancy.
The doctrine of occupied field applies only where Union and State laws are in area
where both can enact laws i.e. Concurrent List. Thus, Art. 254(1) has no application to
cases of repugnancy due to overlapping found to exist between State List (List II) on the
one hand and List I (Union List) and List III on the other. In such ease State law will fail
not because of repugnancy to the Union law but due to the want of legislative
competence [Art. 246 (1)] (Hoechst Pharm. Case). However, Prof. P.K. Tripathi is of the
view' that Art. 254(1) talks about repugnancy between a Parliamentary law in List I or
List III and State law in List II or List III.
The present position of law in India is one as decided in the Hoechst case. Thus in
cases of incidental encroachments resulting in repugnancy between Union and State
laws, Art. 246 will apply and not Art. 254. In fact, the Supreme Court further narrowed
down the scope of Art. 254(1) by holding that the law of the Parliament or an existing
law must be with respect to same matter or entry in the Concurrent List (Vijay Kumar
Sharma v State of Karnataka AIR 1990 SC 2072).
Decision of the cases in question
(a) Repugnancy cannot arise under Art. 254(1) when the Union and State laws are
made on different lists.
(b) Repugnancy under Art. 254(1) arises, as both Union and State laws occupy the
same field i.e. List III or Concurrent List.
Q.10 “The non-obstante clause in Art.246 ought to be regarded as a last resort only in case of
inevitable and irreconcilable conflict between the lists.” Analyse the ambit of non-
obstante clause used in Art.246. [C.L.C.-92]
“The principle of federal supremacy laid down in Art. 246 cannot be resorted to unless
there is an “irreconcilable” conflict between the Entries ir. the Union and the State List.”
[C.L.C.-97]
A.10 Non-obstante clause in Art.246
Art.246(1) provides that ‘notwithstanding anything ill clauses (2) and (3),
Parliament has exclusive power to make laws with respect to List I’. While clause (2)
deals with the Concurrent list, clause (3) deals with the State List. Thus, in case of a
conflict between a Union law' and a State law, the Union law is to prevail. The non-
 54 CONSTITUTIONAL LAW (Part-I)
obstante clause refers to the expression ‘notwithstanding anything in clauses (2) and (3)’.
India adopted a federal Constitution but with a strong Centre in order to coordinate
activities of various States in the interests of uniformity and to check fissiparous (i.e.
anti-national) tendencies. The non-obstante clause gives supremacy to the Union List.
However, as observed by the Supreme Court this clause ought to be regarded as a ‘last
resort’, a witness to the imperfections of human expression and the fallibility of legal
draftsmanship. It is only w'hen the reconciliation between a Union and State List
becomes impossible, then this clause is to be used [Calcutta Gas Co. v State oflV.B. AIR
1962 SC 1044; Prafulla Kumar v Bank of Commerce AIR 1947 PC 60],
In Hoechst Pharm. Ltd v State of Bihar (AIR 1983 Sc 1019), the Supreme Court
observed : “The principle of supremacy of Centre laid down in Art.246, cannot be
resorted to unless there is “irreconcilable” conflict between the entries in Union and State
Lists. In the case of a seeming conflict, the entries should be read together without giving
a narrow meaning to either of them. It should be considered whether a fair reconciliation
can be achieved by giving to the language of Union List a meaning which, if less wide
than it might in another context bear, is yet one that can properly be given to it, and
equally giving to the language of the State List a meaning which it can properly bear.
The non- obstante clause must operate only if such reconciliation should prow
impossible”.
The courts have evolved the-doctrines of ‘harmonious construction’ and ‘pith and
substance’ in order to mitigate the effect or rigour of non-obstante clause. These
doctrines apply to resolve conflicts which arise from overlapping powers in mutually
exclusive lists. Thus, no question of conflict between two lists will arise if the impugned
legislation, by the application of doctrine of pith and substance, appears to fall
exclusively under one list, and the encroachment upon another list is only incidental.
★★★★★★★
UNION AND STATE POWERS : JUDICIAL POWERS
Nature of Judicial Power
In order to maintain the supremacy of Constitution, there must be an independent
and impartial authority to decide disputes between units of federation. The Supreme
Court under our Constitution is such an arbitration. It is the final interpreter and
guardian of Constitution, which keep the democratic structure intact, by preventing the
arbitrary use of governmental authority and safeguarding the rights of citizens. It is the
guardian of fundamental rights.
However, many powers which are strictly judicial have been excluded from
purview of the courts e.g. elections. Adjudication by the administrative bodies has, in
recent times, emerged as an alternative to traditional courts. However, functioning of
such adjudicating bodies is largely determined by the executive.
Though independence of judiciary is secured by our Constitution in several ways
(e.g.^in appointing a Supreme Court judge, President is required to consult chief
justice;, the removal of judges is a difficult and special process; discussion of conduct of
a judge in Parliament is not allowed, etc.), but independence of judiciary is eroded by
Union control over High Courts in the form of 'transfer' of High Court judges. There is a
general atmosphere of distrust, favoritism in appointments and promotions which4led to
development of feeling that if they deliver anti-go vemmept judgements, they would be
transferred. Several %'acancies of judges not filled by the government because search is
not for 'merit' but for 'committed' judges - which tall in with official line.
Judicial Review : Basis and Scope
Philosophy of judicial review is rooted in the principle that Constitution is the
funuamental law, all governmental organs must not do anything which is inconsistent
with the provisions of Constitution; and the theory of limited government. When a
contradiction between the Constitution and enacted law ;xists, it is the duty of judges to
resolve it. Thus, judicial review makes Constitution legalistic. In a federal system, it is a
necessary consequence to have an independent and impartial judiciary to resolve
disputes.
Judicial review means that the judiciary can declare a law or legislation as
unconstitutional if it is beyond the competence of legislature according to the
 JUDICIAL POWERS
57
distribution of powers vunder Article 246), or it is in contravention of
fundamental rights or any of the mandatory provisions of the Constitution (e.g. Article
301 304). Even in the absence of such express constitutional provisions, the court can
invalidate a law which contravenes any right or is ultra vires , for such power of judicial
review follows from the very nature of the Constitutional law. Thus, under Article 132,
the substantial question of law as to the interpretation of Constitution is referred to the
Supreme Court. The 'reasonable restrictions' in case of fundamental rights are subject to
court's supervision. Judicial review is thus the interposition of judicial restraint on the
legislative as well as executive organs of the Government'.
In A.K. Gopalan v State of Madras (AIR 1950 SC 27), the power of judicial
review was firmly established and the limitations for its exercise were clearly
enunciated. In India, the position of the judiciary is somewhere in between the courts in
England and the United States. In England, a law duly made by Parliament cannot be
challenged in any court. The English Courts have to interpret and apply the law; they
have no authority to declare such a law illegal or unconstitutional. In United States, the
Supreme Court is supreme and can declare any law' unconstitutional on the ground of its
not being in "due process of law". Our Constitution, unlike the English Constitution,
recognises the court's supremacy over the legislative authority, but such supremacy is a
very limited one, for it is confined to the field where the legislative power is
circumscribed by limitations put upon it by the Constitution itself. Within this restricted
field the court may, on a scrutiny of law rrfade by the legislature, declare it void if it is
found to have transgressed the Constitutional limitations. Unlike the U.S.A.
Constitution, the courts in India have no authority to question the wisdom or policy of
the law duly made by the legislature.
Limited Supremacy of Courts
Under Article 245(1), the legislative powers conferred under Article 246 are also
made "subject to the provision of Constitution". Article 13(2) provides as follows : "The
State shall not make any law which takes away or abridges the right conferred by this
part and any law made in contravention of this clause shall, to the extent of the
contravention, be void". Thus, this Article protects the fundamental rights.
^cope of Judicial Review
While the basis of judicial review of legislative acts is far more secure under our
Constitution (because of express and implied provisions in Constitution), its
potentialities are much more limited as compared to that in ^ S-A. This is due to the
detailed provisions of Constitution and the easy Method of its amendment - major
portion of Constitution is liable to be amended
 97if the judiciary proves too obtrusive. Also, during emergency, the LAW
CONSTITUTIONAL Legislature
(Part-I)
given supremacy, as it represents the will of the community.
In India, the exercise of power of judicial review is itself made subject to the
limitations, expressly provided in the Constitution e.g. Articles 32, 226, 74, 77, 163,
166, 105, 194, 12, 212. The Supreme Court has also evolved certain self-imposed
limitations on its powers of judicial review, as found in res judicata, laches, standing,
waiver, etc.
Nevertheless, in several cases, it has been held that the Supreme Court can act as
the custodian, defender of rights of people, and democratic system of government only
through the judicial review. In Keshavanand Bharti's case (AIR 1973 SC 1461), it was
held that the judicial review is a 'basic feature' of the Constitution and cannot be
amended.
The scope of judicial review is sufficient in India, to make Supreme Court a
powerful agency to control the activities of Executive and the Legislature. In no way,
judicial review makes the Supreme Court a rival of the Parliament.
Limits of Judicial Review - Scope of Article 32 and Article 226 :
Standing and Public Interest Litigation
Article 32 (7) guarantees the right to move Supreme Court by 'appropriate
proceedings' for the enforcement of fundamental rights (Part III of the Constitution).
Clause (2) - deals with Supreme Court's power to issue order or writs, for the
enforcement of fundamental rights.
Article 32 thus provides an expeditious and inexpensive remedy for the
protection of fundamental rights from legislative and executive interference. However,
a petition under Article 32 may be filed to challenge the validity of a law with reference
to a provision other than those involving fundamental rights, provided it inevitably
causes a restriction on the enjoyment of fundamental rights.
The Supreme Court cannot refuse relief under Article 32 on the ground that the
aggrieved person may have his remedy from other court; the disputed facts have to be
investigated before the relief given; and that petitioner has not asked for proper writ
applicable to his case.
It is necessary that the petitioner is presently affected by the impugned order or
the like i.e. his fundamental rights are either threatened or violated. It is not necessary
for him to wait till the actual threat has taken place, however, his rights should be in
imminent danger of being evaded. The maintainability of a petition will depend on the
facts as they were on the date of the petition and not on subsequent events.
Article 226 enables the High Courts to issue writs for the enforcement of
fundamental rights and also other ordinary legal rights. Thus, Article 32 and 226
provides the right to constitutional remedies.
 JUDICIAL POWERS
59
STANDING AND PUBLIC INTEREST LITIGATION4
The traditional rule of locus standi is that a petition under Article 32 can only be
filed by a person whose fundamental right is infringed. This rule has now been
considerably relaxed by Supreme Court in its recent rulings. The Court now permits
'Social action litigation’ or ‘public interest litigation' (pro bono publico litigation) at the
instance of ‘public-spirited citizens’, for the enforcement of any constitutional 01 legal
right of any person or group of persons who because of their poverty' or socio-economic
disadvantaged position or otherwise (e.g. being in custody) are unable to approach the
court for relief.
The grievance in a public interest action is about the content and conduct of
Government action in relation to the Constitutional or statutory rights of segments of
society and in certain circumstances the conduct of Government policy. The doctrine of
PIL apply to any case of public injury' arising from -
(a) the breach of any public duty, or
(b) the violation of some provision of the Constitution, or
(c) of the law (S.P. Gupta’s case).
The relief to be granted looks to the future and is, generally, corrective rather then
compensatory which, sometimes it also is. Public interest litigation involves
collaboration and cooperation between the Government and its officers, the Bar and the
Bench, for the purpose of making human rights meaningful for the weaker sections of
the community (U. Baxi's case).
The traditional doctrine of standing means that judicial redress is available only
to a person who has suffered (or is likely to suffer) a legal injury by reason of violation
of his legal right or legally protected interest. However, there are a few exceptions to it,
which have been evolved by the courts over the years. Thus, a tax payer of a local
authority is accorded standing to challenge an illegal action of local authority. The
reason for liberalisation of the rule in the case of a tax payer of a municipality is that his
interest in the application of the money of municipality is direct and immediate. The
statute itself may expressly recognise the locus standi of an applicant, even though no
legal right of the applicant has been violated resulting in legal injury to him. For
example, in
J.M. Desai v Roshan Kumar (AIR 1976 SC 518), the court noticed that the Bombay
Cinematograph Act 1918 and the Bombay Cinema Rules, 1954 made under that Act,
recognised a special interest of persons residing, or concerned with any institution such
as a school, temple, etc. located within a distance of 200 yards of the site on which the

4 “Whereas in S.P. Gupta (Judges Transfer Case) case, the Supreme Court laid the
foundation of Public Interest Litigation (PIL), in Bandhua Mukti Morcha and
M.C. Mehta cases, while reiterating what was said in the above case, it embarked
upon enlarging the scope and width of its power under Art.32 of the Constitution
. Discuss. [C.L.C.—92/94/97]
Write a short note on the scope of rule of locus standi in PIL.
[C.L.C.-96]
Discuss : The matters of general public interest can be agitated at the highest judicial
forum by any members of the public. [Z..C7/-96(Supp )l
cinema
60 house is proposed to be constructed and held CONSTITUTIONAL
that as the petitioner,
LAWa(Part-I)
rival
cinema owner, did not fall within the category of such persons having a special interest
in the locality, he had no locus standi to maintain a writ petition.
In Sunil Batra v Delhi Administration (AIR 1980 SC 1579), the court accepted
the habeas corpus petition of a prisoner complaining of a brutal assault by a head
warden on another prisoner. In this case, the Supreme Court broadened the scope of
habeas corpus by holding that this writ can be issued not only for releasing a prisoner
from illegal detention, but also for protecting prisoners from inhuman and barbarious
treatment.
In Dr. Upendra Baxi v State of Uttar Pradesh (1983) 2 SCC 308) the Supreme
Court permitted the petitioner, a law professor, to raise infringement of Article 21 on
behalf of the inmates of the Agra Protective Home, who were living in inhuman and
degrading conditions.
S.P. Gupta v Union of India
(AIR 1984 SC 802)
In this case, also known as 'Judges Transfer Case', the court held that any
member of public having 'sufficient interest' can maintain an action for judicial redress
for 'public injury' in relation to any Constitutional or legal provision, under Article 226
and Article 32, by a letter addressed to the court. Thus, a person having sufficient
interest has to be accorded standing.
In this case, the Supreme Court laid the foundation of Public Interest Litigation
(PIL)
‘Representative proceedings ’ (or PIL)5
The Constitution-makers did not lay down any particular form of proceeding (the
expression appropriate proceeding in clause (1) of Article 32 is with reference to clause
(2) i.e. nature of order or writ), nor did they stipulate that such proceeding should
conform to any rigid pattern or a strait-jacket formula... because they knew that in a
countiy like India with so much of poverty, ignorance and exploitation, any insistence
on rigid formula of proceeding would be self-defeating. The procedure is but a hand-
maid of justice and cause of justice may never be allowed to be wasted by any
procedural technicalities.
The broadening of the rule of locus standi has been largely responsible for the
development of public law, because it is only the availability of judicial remedy for
enforcement which invests law with meaning and purpose, or else the law would remain
merely a teasing illusion and a promise of unreality (Schwart, et al in 'Legal Control of
Government'). This broad rule gives standing to any member of the public who is not a
mere busybody or a meddlesome interloper but who has sufficient interest in the
proceeding Also, it would have to be decided from case to case that whether person has
sufficient interest and has not acted, for personal gains or political motives, or mala
fides. If such a person moves the court, it would amount to abuse of public interest
litigation. Moreover, ihe court may confine this strategic exercise of jurisdiction to cases
where legal injury is caused to a determinate class or group of persons, and not entertain
eases of private or individual wrong or injury' at the instance of a third party, where there
is an effective legal aid organisation which can take care of such cases.
The public interest litigation is absolutely necessary for maintaining the rule of

5 "In the matter of large public interest the requirement of locus standi has been
liberally construed”. Discuss. [I.A.S.-92]
 JUDICIAL POWERS 61'

law, furthering the cause of justice and accelerating the pace of realisation of
Constitutional objectives. There can be no doubt that the risk of legal action against the
State or public authority by any citizen will induce the State or such authority to act
with greater responsibility and thereby improving the administration of justice.
There is also another reason why the rule of locus standi needs to be liberalised
Today we find that the law is being increasingly used as a device of organised social
action for the purpose of bringing about socio-economic change. An enormous
increased developmental activities has created more and more a new category of rights
in favour of large sections of people and imposed a new category of duties on the State
officials w ith a view to reaching the social justice to the common man. Individual
rights and duties are giving place to meta-individual, collective ’diffuse' social rights
and duties of classes or groups of persons.
The conferment of socio-economic rights (under the Directive Principles) and
imposition of public duties on the State authorities for taking positive actions generates
situations in which single human action can be beneficial or prejudicial to a large
number of people, thus making entirely inadequate the traditional scheme of litigation
as merely a two-party affair. For example, the discharge of affluents in a a lake or river
may harm all who want to enjoy its clean water defective or unhealthy packaging may
cause damage to all consumers of goods and so also the illegal raising of railway or bus
fares may affect the entire public which wants to use the railway or bus as a means of
transport. In these cases, the duty which is breached giving rise to the injury is owed by
the State authority not to any specific or determinate class of persons, but to the general
public. In other words, the duty is one which is not correlated to any individual rights;
public injury is one caused to an indeterminate or unspecified class of persons.
In the present case, the Court held that the petitioners-practising lawyers have
sufficient interest or locus standi, against a Circular of Union Law Minister, alleging
danger to the independence of judiciary in the form of transfer of judges The profession
of lawyers is an essentia! and integral part of the judicial system. They assist the court in
dispensing justice and it can hardly be disputed that without their help, it would be
impossible for the court to administer justice. They have, therefore, a special interest in
preserving the integrity and independence of the judicial system, which if threatened,
they would
naturally be concerned about it, because they are equal partners with the judges in the
administration of justice. They cannot be regarded as mere bystanders or meddlesome
interlopers in filing the writ petition. The Circular letter did not cause any specific legal
injury to an individual or to a determinate class or group of individuals, but it caused
public injury by prejudicially affecting the independence of judiciary ]
In Fertiliser Corporation Kamgar (Union) v Union of India (AIR 1981 SC 434),
the court applied the principle laid down in S.P. Gupta's case to uphold the standing of
the Fertiliser Corporation Kamgar Union to challenge the sale of a part of the
undertaking by the Fertiliser Corporation of India. Justice Krishna Iyer pointed out that
if a citizen 'belongs to an organisation which has special interest in the subject- matter, if
he has some concern deeper than that of a busybody, he cannot be told off at the gates
although whether the issue raised by him is justiciable may still remain to be
considered".
62 CONSTITUTIONAL LAW (Part-I)
The question whether a person has locus to file a proceeding, depends mostly
upon whether he possess a legal right and that right is violated. But in appropriate cases,
it may become necessary' to take a broader view of the question of locus standi. For
example, the right to carry on an occupation is same thing as the right to work in a
particular post under a contract of employment. If public property is dissipated, the
representative segments of public (Kamgar Union in this case) or at least a section of
public would have right to complain of the infraction of public duties and obligations.
Public enterprises are owned by the people and those who run them are accountable to
the people. The accountability of the public sector to the Parliament is ineffective. In
such cases the court would be under a duty to interfere.

Bandhua Mukti Morcha v Union of India

(AIR 1984 SC 802)
In this case, an organisation dedicated to the cause of bonded labours informed
the Supreme Court through a letter, about the bonded labourers working in stone
quarries in Faridabad under inhuman and intolerable conditions, contrary
 JUDICIAL POWERS
63
to various social welfare laws. The petition prayed that a writ be issued tor proper
implementation of Constitutional provisions like Article 21 (Right to life and personal
liberty).
Some preliminary objections were raised on behalf of the respondent State, which
are as follows:
(i) It was argued that no fundamental right of the petitioner or of labourers have
been infringed.
However, the court observed that it is the fundamental right of every one in
this country, assured under the interpretation given to Article 21 (in Francis
Corali's case AIR 1980 SC 849) to live with human dignity, free from
exploitation.
(ii) It was argued that the court had no power to appoint an enquiry commission,
and report made by such commission had no evidentiary value as it w as based
only on ex parte statements which had not been tested by cross-examination.
The court, in this case, had treated the letter as a writ-petition and appointed a
commission to make an inquiry. The court held that, instead of raising preliminary
objection, government should welcome an enquiry, so that the situation can be set right
by government.
The court explained the nature and purpose of public interest litigation: It. is a
challenge and an opportunity to government to make basic human rights meaningful to
deprived sections and assure them socio-economic justice. Government must welcome
PIL, because it provides them an accession to examine whether poor are getting their
socio-economic entitlements or not. The court did not want to tilt at executive authority
or usurp it, but to protect poor against violation of their basic human rights, thus court is
merely assisting in the realisation of Constitutional objectives.
The public interest litigation is very much included in the Article 32. Article 32
does not say as to who shall have this right to move the Supreme Court nor does it say
by what pioceedings the court may be so moved. The only requirement is that
proceeding must be 'appropriate' and this requirement of appropriateness must be judged
in the light of the purpose for which the proceeding is to be taken, namely, enforcement
of a fundamental right. In a country like India, where there is so much of poverty,
ignorance, exploitation, etc., any insistence on a rigid formula of a proceeding would
become self- defeating, because it would place enforcement of fundamental rights
beyond the reach of common man.
It is, thus, not at all necessary that an adversarial procedure, where each party
produces his own evidence tested by cross-examination by other side, and the judges
playing a passive role, must be followed in a proceeding under
Article 32. A strict adherence to adversarial procedure may lead to injustice particularly
when the parties are not evenly balanced in social or economic strength.
Article 32 does not merely confer power on the court to issue a writ, but it also
lays a constitutional obligation to protect fundamental rights, and for that purpose the
court has all incidental and ancilliary powers ... to forge new remedies and fashion new
strategies to enforce fundamental rights, to make fundamental rights meaningful for the
large masses of people. The court passed detailed directions for the release and
rehabilitation of the bonded labourers.
 64[In Rural Litigation v State of U.P. AIR 1989 SCCONSTITUTIONAL
594, the SupremeLAW
Court(Part-I)
said
that the court may even refuse to entertain the plea of res judicata in PIL.]

M.C. Mehta v Union of India

(AIR 1987 SC 1087)
In this case, a leakage of chlorine gas from the plant of Shriram Food and
Fertiliser Company, resulted in the death and hardships to workers and the residents of
locality. The matter brought before the court through a public interest litigation by Delhi
Legal Aid Board and Delhi Bar Association. The court allowed the partial reopening of
plant, but directed the company to take all necessary safety measures and pay
compensations to aggrieved persons.
In this case, the Supreme Court further widened the scope of public interest
litigation under Article 32:
(i) Held that a poor can move the court, by writing a letter (even without an
affidavit) to any judge (instead of the entire court), as they might not know the
proper form of address to the court.
(ii) The court has power to grant remedial relief, in the form of compensations,
where violation of fundamental right is "gross and patent" and "affects
persons on a large scale".
(iii) The court can appoint socio-legal commission or device any procedure and
forge any tools, for the enforcement of fundamental rights under Article 32
(vide Bandhua Mukti's case).
The 5-judge bench of the court in this landmark judgement opened the doors of
the highest court of the nation for the oppressed, the exploited and the down-trodden in
villages or urban slums. The court has brought legal aid to the door steps of the teeming
millions of the India which the executive has not been able to do despite that a lot of
money is being spent on the legal aid schemes operating at the Central and State level.
In M.C. Mehta v Union of India, (1988) 1 SCC 471, the court directed Kanpur
Municipality to take necessary actions (e.g. against industries and tanneries) for control
and prevention of pollution in Ganga. The court said that notwithstanding the
comprehensive provisions in Water (Prevention and Control of Pollution) Act and other
Acts, no effective steps have been taken to check pollution by the municipality. The
court held that the petitioner, although not living on the river side, is a person interested
in protecting the lives of people who uses Ganga water. Moreover, such pollution is a
public nuisance.
In M.C. Mehta v. Union of India (1991) 2 SCC 137, it was held that PIL against
pollution in Delhi caused by increasing number of patrol and diesel vehicles is
maintainable. The court directed the Delhi Administration to make the Central Motor
Vehicles Act, 1989 effective from April 1, 1991 and to implement it seriously and
effectively ]
Conclusions : Judicial Activism
By the broad view of locus standi permitting PIL, the Supreme Court has
considerably widened the scope of Article 32. Now, the court has jurisdiction to give
appropriate remedy to aggrieved persons in various situations like - Flesh trade in
Protective Homes (Upendra Baxi's case), Injustice done to children in jails, Protection
 JUDICIAL POWERS 65'

of pavement and slum-dwellers (Olga Tellis' case AIR 1986 SC 180), Abolition of
bonded labour, Protection of environment and ecology, etc. In Lakshmi K. Pandey v
Union of India (1984) 2 SCC 244, a writ-petition was filed on the basis of a letter
complaining of malpractices indulged in by social and voluntary agencies engaged in
the work of offering Indian children in adoption to foreign parents.
In Mohanlal Shamia v State of U.P. (1989) 2 SCC 609, a telegram was sent to
the Court from the petitioner alleging that his son was murdered by police in police
lock-up. The telegram was treated as a writ-petition, and case was directed to be referred
to C.B.I. for a detailed investigation. It may be noted that in petitions against police
excesses, the individual/personal matters are treated as a PIL matter.
Besides providing remedies or reliefs to aggrieved persons, the Supreme Court,
in many PIL cases, have entered into fields traditionally reserved for the executive. The
Court has used its interim directions to influence the quality of administration. Prof.
Baxi (‘Taking suffering seriously : Social Action Litigation in the Supreme Court of
India’) described this gradual judicial takeover of “the direction of administration in a
particular arena from the executive" as "Creeping Jurisdiction". Thus, in Shriram
Fertiliser Gas Leak case the court ordered the plant to be closed, set up a victim
compensation scheme, and then ordered the plant reopening subject tq extensive
directions., In Bonded Labourers case, it appointed a commission of inquiry. In the
Dehradun Quarrying case AIR 1985 SC 652, the Court considered, balanced and
resolved competing policies - including the need for development, environmental
conservation, preserving jobs etc. - in deciding to close a number of limestone quarries
in Mussoorie
Hills and to allow others to continue operating until detailed conditions. The Court
reviewed the highly technical reports of various geological experts.
The Supreme Court, in Sheela Barse v Union of India (1986) 3 SCC 596, directed
that the Children's Acts enacted by various States be must brought into force and their
provisions be implemented vigorously (in connection with children detamed in jails). It
is desirable that Parliament should pass a Central Legislation on the subject. Thus, the
Supreme Court has also shown its willingness to foray into the legislative arena, under
the cover of PIL. In All India Judges Asscn. v U.OJ. (1983) 4 SCC 288, it was held that
the Supreme Court can issue directions to the executive and legislature to perform their
obligatory duties.

FURTHER QUESTIONS
Q.3(a) Can Delhi’s garbage disposal system be scrutinized by the Supreme Court on a
public interest petition filed by a citizen under Art. 32 of the Constitution ?
Discuss. [C.L.C.-95 (Dec.)]
(b) Do you agree with the view that even after a decade’s experience with PIL,
the parameters of judicial action in such cases remain unsettled and
ambiguous ? Give your reasoned opinion. [L.C1I-94]
(C) “Through the strategy of PIL, the Supreme Court has been able to remove all
Constitutional restraints on its powers. The relief to the weaker segments of
the society is only the by-product”. Do you agree? Discuss the evolution of
 66 PIL in the light of the above statement. [C.L.C.-93]
CONSTITUTIONAL LAW (Part-I)
(d) A group of persons are primarily injured as a result of a Government order.
But they accepted it willingly and without protest. Can a member of the
public, who complains of a secondary public injury, maintain an action under
PIL?
A.3(a) Right to a clean and healthy environment has been recognized as an implied
fundamental right by the Supreme Court in a number of recent decisions. In
Ratlam Municipality and Ganga Pollution cases, the Supreme Court observed
that the municipalities and other bodies are under a duty to ensure garbage
disposal. A recent case on the point is Dr. B.L. Wadhera v UOI (1995) (SC).
Thus, the Supreme Court can scrutinise this subject and give appropriate
directions.
(b) PIL - Uncertainty and Guidelines
The grounds on which PIL would lie have been noted by the Supreme Court in
State ofH.P. v Parent of a Student of Medical College (AIR 1985 SC 910) : “Whenever
the court finds that the executive is remiss in discharging its obligations under the
Constitution or the law so that the poor/underprivileged continue to be subjected to
exploitation and injustice; or are deprived of their social and economic entitlements; or
that social legislation enacted for their benefit is not being implemented, they can and
must interfere and compel the executive to carry out its constitutional and legal
obligations”.
The necessary limitation of PIL is that the jurisdiction cannot be allowed to be
abused by a meddlesome interloper or a busybody or a personal action for personal
gains, private profit or with political considerations (See S.P. Gupta's case).
Public interest litigation has been criticised on a number of grounds, viz. that it
can be misused for private motive or political ends, that it would result in the tremendous
increase in the litigation, that it would develop uncertainty as to the admission of the
petition for hearing. It is said that there is no guideline as to the cases which should be
admitted and the cases which should not be admitted. Due to this, the PIL has become
unpredictable. Moreover, the court has no capacity to enforce its orders and in many
cases the conditions have not changed.
In some cases, the affected parties addressed letters directly in the name of the
Judges of the Supreme Court and they used to convert the letters into writ petitions. This
practice has been criticised on the ground that there would be a danger of litigants
choosing a judge and in turn judges choosing their litigants. The suo motu action by
Judges based upon the news reports is criticised as thereby die judge assumes the role of
advocate as well and thus acting against the judicial precept ‘no body should be a judge
in his own case’.
To avoid these defects, the Supreme Court has framed certain guidelines for
entertaining letters/petitions as PIL [Public Interest Litigation - A study by P. Bhaskara
Menon, Published in AIR 1993 Journal Section, P. 17] :
The petition involving individual/personal matter shall not be entertained as a PIL
matter except as indicated hereinafter. Ordinarily the letter/petition under the following
categories should be entertained as PIL - (a) Neglected children (b) Bonded labours
 JUDICIAL POWERS 67'

matters (c) Non-payment of minirqum wages to workers and exploitation of casual

workers and violation of labour laws (except in individual cases) (d) Petition from
Prisons (e) Speedy trial (f) Petitions against atrocities on women (g) Petitions against
Police excesses (h) Petitions against atrocities on SC, STs and OBCs, (i) Petition from
riot victims (j) Petition relating to family pension (k) Petitions pertaining to the
environmental pollution, disturbance of eco-balance, maintenance of forests and wild
life, maintenance of heritage and culture and (1) Other matters of public importance (viz.
maintenance of communal harmony, public health, etc.).
Petition for early hearing of cases pending in courts, petitions relating to service
matters, pension and gratuity, petitions pertaining to the landlord-tenant matters, and,
petitions relating to the admission to the Medical and other educational institutions will
not be entertained as PIL.
In some recent cases, the Supreme Court has laid down some guidelines to check
the abuse of PIL by third persons. In Simranjit Singh Mann v UOI (AIR 1993 SC 280), it
was held that in criminal matters, so far as possible, the court should be approached only
by the accused. A petitioner-third party, who was a total stranger to the prosecution
culminating in the conviction of the accused, had no Tocus standi’ to challenge the
conviction. Even the plea that such a PIL commenced by a leader of a recognised
political party who had a genuine interest in the future of the convicts was held to be
untenable. It was held that unless an aggrieved party is under some disability recognised
by law, it would be unsafe to allow any third party to question the decision against him.
In Karamjeet Singh v UOI (AIR 1993 SC 284), it was held that a mere obsession
based on religious belief or any other personal philosophy cannot be regarded as a legal
disability of the type recognised by the Cr. P.C., 1973 or any other law which would
permit initiation of proceedings by a third party, be he a friend. In Krishna Swami v UOI
(AIR 1993 SC 1407), it was held that a petition, by way of PIL, could not be filed by
any person seeking review of earlier decision of the court in which they were not parties.
At present, the courts have been cautions to act on news reports. They usually
insist on affidavit of the writer or the person having knowledge of the details of the
complaint. Now it is important to specify the fundamental right which has been violated
in case the petition presented under Art. 3 2 and the fundamental right or other legal
right which has been violated in case the petition presented under Art.226. The concept
being based on rule of law and not on the benediction of individual judges, the Supreme
Court has proscribed letters being addressed directly to judges in Sheela Barse case.
Today there is a ‘PEL Cell’ where all such petitions are scrutinised and then posted
before various benches.
(C) It is prima facie difficult to agree with the above statement as the Supreme Court
has merely liberalized the traditional rule of standing but in doing so it has not
transgressed any constitutional limitation. Rather, no such limitation exists
under the Constitution. However, in many PIL cases, the Supreme Court has
entered into fields traditionally reserved for the executive or legislature. The
court has used its interim directions to influence the quality of administration.
In Sheela Barse case, the court said that it is desirable that Parliament should
pass a Central legislation on the subject relating to children detained in jails.
 68Further, relief to the weaker section is not the by-product, rather it isLAW
CONSTITUTIONAL the raison
(Part-I)
d'etre (the most important reason for doing it) for the existence of PIL.
(d) The member of the public cannot maintain an action under PIL, for the effect
of entertaining the action at the instance of such member of
 JUDICIAL POWERS 6g
the public would be to grant a relief on the person... or persons primarily injured
which they do not want (S.P. Gupta's case).
It may be noted that where the petitioner seeks any relief to serve his self-interest,
apart from that of the community, that relief would be refused (Subhash v State of Bihar
AIR 1991 SC 420).
Q.4 Write a critical note on the desirability or otherwise of the application of the
doctrine of res judicata to the proceedings for. the enforcement of
fundamental rights. [L.C.II-94]
Discuss : Every decision of a writ court will not operate as res judicata.
[L C11-96 (supp.Y97]
A.4 Res judicata and Art.32
Res judicata is a rule of public policy that there should be finality to binding
decisions of courts of competent jurisdiction and that parties to the litigation should not
be vexed with the same litigation again [Sec. 11, C.P.C.] Thus, where the matter had
been ‘heard’ and ‘decided’ by the High Court under Art.226, the writ under Art.32 is
barred by the rule of res judicata and could not be entertained. Similarly, if a question
has been once decided by the Supreme Court under Art.32 the same question cannot be
re-opened again under Art.226. However, a petition under Art.32 for habeas corpus is
an. exception to this general rule.
Thus, the Supreme Court cannot be moved more than once on the same facts. It
has been held that in the absence of new circumstances arising since the dismissal of the
petition filed in Supreme Court under Art.32, a fresh petition under Art.32 on the same
matter cannot be filed in the Supreme Court [Lakhanpal v UOI AIR 1967 SC 908], It is
to be noted that a petition filed in the Supreme Court under Art.32 and dismissed by it
on suit by a speaking order will also be operative as res judicata, even though the order
has been made ex parte [Virudhanagar Mills v Govt, of Madras AIR 1968 SC 1198],
If a writ petition is filed for the violation of a fundamental right in the High Court
under Art.226 and it is dismissed by the High Court on the ground that the contravention
of the fundamental rights is constitutionally justified and thereafter, the petitioner files
writ petition (on the same facts and grounds) under Art.32 in the Supreme Court, instead
of filing a regular appeal to the Supreme Court, the decision of the High Court will
operate as res judicata and the writ petition will not be entertained by the Supreme Court
[Trilok Chand Motichand v H.B. Munshi AIR 1970 SC 898; Daryao v State of U.P.
AIR 1961 SC 1457],
However, for this purpose the writ petition under Art.226 must have been
dismissed by the High Court on merit. If it has been dismissed not on merit but some
preliminary grounds viz. on the ground of laches (delay in
 70filing the petition) or on the ground of alternative remedy available
CONSTITUTIONAL LAW to the
(Part-I)
petitioner, it will not operate as res judicata and, thus, will not bar petition under Art.32
[Joseph v State of Kerala AIR 1974 SC 1514].
The principle of res judicata does not apply in the case of petition for habeas
corpus. In Ghulam Sarwar v UOI (AIR 1967 SC 1335), a wnt petition was filed in the
High Court under Art.2.26 challenging die detention of the petitioner but it was
dismissed by the High Court on merit, the petitioner then moved the Supreme Court for
the issue of same writ. The Supreme Court entertained the petition and decided it on
merit, although the petition was dismissed on some other ground. In Sunil Dutt v UOI
(AIR 1982 SC 53), the petitioner’s father was detained under the COFEPOSA Act. A
petition for the writ of habeas corpus was dismissed by the Supreme Court in limine
(summarily, at the initial stage). After sometime a petition was filed in the Supreme
Court seeking release of the detenu. The Supreme Court entertained it and observed that
the earlier petition would not be operative as res judicata.
Desirability of res judicata
The right given to the citizen to move the Supreme Court by a petition under
Art.32 and claim an appropriate writ against the unconstitutional infringement of his
fundamental rights itself is a matter of fundamental right. However, the rule of res
judicata itself embodies a principle of public policy which in turn is an essential part of
the rule of law, thus, the objection that the rule cannot be invoked where fundamental
rights are in question may lose much of its validity. The doctrine of res judicata is not a
technical doctrine applicable only to records; it is a fundamental doctrine of all courts
that there must be an end of litigation. Thus, the general rule of res judicata cannot be
treated as irrelevant or inadmissible even in dealing with fundamental rights in petition
filed under Art.32 fDaryao v State of U.P AIR 1961 SC'1457],
Q.5 “It is necessary to eliminate political influence at the stage of initial
appointment of judges as provisions for securing independence after the
appointment are not adequate to safeguard independence of judges”. [C.L.C.-
95 (Dec.)]
(a) Examine whether the opinion of the Chief Justice of India in regard to the
appointment of Judges to the Supreme Court and High Courts is entitled to
primacy ? Can the President disregard the said opinion when it is in conflict
with the advice tendered by the Council of Ministers ? Refer to the
constitutional issues and the case-law on the point. [I.A.S.-96]
(b) Can the appointment of the judge of a High Court challenged on the ground
that the Chief Justice of India did not recommend the name of the judge when
the President consulted him ? [I.A.S.-94]
(c) D, a judge of the High Court was transferred by the Presidential order to
another High Court. D challenges the transfer on the ground that the order was
issued without his consent and without the concurrence of t>e Chief Justices
of the two State High Courts concerned and of the Chief Justice of India.
Examine the legal issues involved. [7^4 5-9j]
A.5 Independence of Judiciary
The independence and impartiality of the judiciary is one of the hallmarks of the
democratic set-up of Government. It is the first condition of liberty and rule of law in a
 JUDICIAL POWERS
71
democracy. Indeed, an independent judiciary is part of the ‘basic structure’ of the
Constitution. The Constitution has made several provisions to ensure independence of
judiciary
(1) Appointment - Appointment of judges to the High Courts and Supreme Court
is done by President only after consultation with the Chief Justice of India
[Art. 124 (2) and 217(1)].
(2) Transfer - In the matter of transfer of High Court judges, Chief Justice of
India must be consulted by President. [Art.222(l)].
(3) Security of tenure - A judge can only be removed for proved misbehaviour or
incapacity, and even so, a difficult procedure of impeachment is necessary
(Arts. 124 and 218).
(4) Conditions of service - The salary, privileges, rights and allowances of judges
cannot be altered to their disadvantage once they are appointed. They are not
subject to vote of legislature (Art. 125 and 221). Further, no discussion in
legislature can take place on the conduct of the judges (Art. 121).
(5) Administrative powers - Art. 146 and Art. 229 place the administration and
recruitment of staff in the hands of Supreme Court and the High Courts.
Art.235 gives High Courts the power of administration over subordinate
courts.
(6) Power to punish for its contempt - The Supreme Court and the High Courts
have the power to punish any person for its contempt (Arts. 129 and 215).
This power is very essential for maintaining the independence
of judiciary.
■X

(7) Parliament can extend, but cannot curtail the jurisdiction and pfowers of the
Supreme Court (Art. 138).
(8) Separation of judiciary from executive - Art. 50 directs the State to take steps
to separate the judiciary from the executive in the public services of the State.
(9) Prohibition on practice after retirement - Art. 124(7) prohibits a retired judge
of the Supreme Court to appear and plead in any court or before any authority
within the territory of India.
Appointment, transfer and promotion of judges
Articles 124(2), 217(1) (appointment of judges), Article 222(1) (transfer of
judges) and Article 216 (Number of judges to be determined by President) leave scope
for executive interference. If such crucial areas are left to ‘executive discretion'
(President acting on the advice of Council of Ministers), the independence of judiciary
cannot be secured, notwithstanding the guaranteed tenure of office, rights, privileges,
safeguards and immunities provided by the Constitution. Thus, only ‘favourite’ or
‘committed’ judges got appointed or promoted, while ‘inconvenient’ judges punitively
treated by way of transfer.
In India, today, the executive is the biggest litigant before the courts and allowing
it such powers can be but inimical to the independence of judiciary as also to the very
survival of democracy. This fear is not hypothetical, the executive actions qua judiciary
during emergency are too infamous to bear repetition.
Consultation
72 in appointment : Primacy to judiciary or executive ? LAW (Part-I)
CONSTITUTIONAL
The requirement of consultation, by the President of the Chief Justice of India, is
a mandatory requirement and any appointment/transfer made without consultation
would be unconstitutional. ‘Consultation’ does not mean concurrence, but it certainly
means that there must be due deliberation between the Chief Justice of India and the
President on full and identical facts. However, the Central Government is not bound by
the opinion of Chief Justice of India, though hi§ opinion is entitled to great weight, as
the opinion of the head of the judiciary [UOI v Sankalchand Sheth AIR 1977 SC 2328],
In S.P. Gupta v UOI (Judges Transfer Case) (AIR 1982 SC 149) (Majority
opinion), it was held that no primacy need be given to the opinion of the Chief Justice
of India; it is the executive which has primacy. Thus, the Central Government can
override the opinion given to it and arrive at its own decision with regard to
appointment of a judge, so long as the decision is based on relevant considerations and
is not otherwise mala fide.
The court, however, suggested for the appointment of a Judicial Committee
(consisting of the Attorney-General, Law Minister, President of tHe Bar Council of
India, President of the Supreme Court Bar Association, and the Retiring Chief Justice
of India) for the appointment of judges.
The said decision was very much criticised. Thus, in Subhash Sharma v UOI
(AIR 1991 SC 631), the Supreme Court felt that the appointment or transfer of judges is
not an executive act but the result of constitutional process which must be observed in
word and spirit. They directed that the S.P. Gupta’s case be reviewed by a nine-judges
bench. A 9-judges bench reviewed the judgment and established the “judicial
supremacy” in the below-mentioned case :

Supreme Court Advocates-on-Record Asscn. v Union of India

(AIR 1994 SC 268)
hi this historic judgment, the Supreme Court by a 7-2 majority overruled the S.P.
Gupta’s case and held that in the matter of appointment of judges of
 JUDICIAL POWERS ?3
the Supreme Court and the High Courts the President is bound to act in
accordance with the opinion of the Chief Justice of India who would tender his opinion
on the matter after consulting his colleagues. It, thus, reduces to the minimum
individual discretion conferred upon the President and the Chief Justice of India so as to
ensure that neither political bias nor personal favouritism nor animosity play any part in
the appointment of judges. The court said that the opinion of the Chief Justice should
have the greatest weight in the selection of candidates. The selection should be made as
a result of a 'participatory consultative process' in which the executive should have
power to act as a mere check on exercise of power by the Chief Justice.
The court observed : “Thus, the executive element in the appointment of judges
has been reduced to minimum and political influence is eliminated. It is for this reason
that the word 'consultation' instead of ‘concurrence’ was used in the Constitution but
that was done merely to indicate that absolute discretion was not given to any one, not
even to the Chief Justice of India as an individual, much less to the executive”.
The Court laid down the following important guidelines :
(1) The S.P. Gupta’s case had taken a literal interpretation. The correct
interpretation must keep in view the constitutional purpose of selecting the
best available, to secure independence of judiciary and to preserve democracy.
Any other construction would be opposed to the spirit of the Constitution.
(2) The word ‘consultation’ must be read keeping in view the question of who is
best equipped and likely to be more correct. As such, the Chief Justice of
India is best equipped to assess the worth of the candidate and his suitability
for appointment. Therefore, in the event of conflict of opinion, the opinion of
the Chief Justice (formed after due consultation with two senior-most judges-
of the Supreme Court) has primacy.
(3) In exceptional cases, where the facts justify, a recommendee of the Chief
Justice of India, if considered unsuitable on the basis of positive material
available or record placed before the Chief Justice, may not be appointed.
Primacy is in making an appointment and not when the appointment is not
made.
The Court gave certain instances when non-appointment is permitted viz. "'hen
the opinion of the Chief Justice is contrary to that of the senior judges c°nsulted by him
and the senior judges views regarding unsuitability of reconimendee are accepted by the
President; the opinion of Chief Justice of ^igh Court conflicts with that of the Chief
Justice of India when the recornrnendation is for appointment to High Court; non-
appointment for reasons doubtful antecedents relating to personal character and conduct,
health, etc.
 74 Even if the stated reasons regarding unsuitability of recommendee LAW
CONSTITUTIONAL are not
(Part-I)
- accepted by the Chief Justice of India, the appointment should be made as a healthy
convention.
(4) Initiation of the proposal for appointment of the judges of the Supreme
Court must be by the Chief Justice of India, and in the case of a High
Court by the Chief Justice of that High Court.
(5) In the matter of appointment to the post of the Chief Justice of India, the
rule of seniority must be followed.
Thus, the senior-most judge of the Supreme Court, considered suitable to
hold the office, be appointed as the Chief Justice of India. The proposal in this
respect should be initiated by the outgoing Chief Justice. The “other judges” may be
consulted only if there be any doubt about the fitness of the senior-most judge.
(6) The opinion of the Chief Justice of India does not have mere primacy, but
is determinative in the matter of transfer of judges. Moreover, the consent
of judges being transferred is not required.
(7) While transfer of judges in High Courts is not justiciable, fixation of the
strength in High Courts is justiciable. Speedy trial being a fundamental
right under Art.21, President must make the necessary appointments to the
High Courts. The failure to perform this obligation, resulting in negation
of rule of law by law’s delay, is justiciable, to compel performance of that
duty.
(8) The appointment of judges is not justiciable, except on the ground of want
of consultation with the named constitutional functionaries or lack of any
condition of eligibility. The primacy of judiciary in the matter of
appointment is itself a sufficient justification for the absence of the need
for further judicial review of those decisions which is ordinarily needed as
a check against possible executive excess or arbitrariness. Plurality of the
judges in the formation of the opinion of the Chief Justice of India is
another in-built safeguard against the likelihood of arbitranness or bias,
even sub-consciously, of any individual.
In UOI v Pratibha Bannerjea (AIR 1996 SC 693), it was emphasized that the
judiciary belongs to the ‘third organ’ of State and is not subordinate to the other two
wings viz. legislature and executive. There can never be a ‘master and servant’
relationship between a judge and the Government. Independent, impartial and
fearless judiciary is our constitutional creed and part of the basic structure of the
Constitution.
(a) The President cannot disregard the opinion of the Chief Justice of India,
even if it is in conflict with the advise tendered by the Council of
Ministers.
(b) Art. 217(1) provides tiiat every judge of a High Court shall be appointed by the
President after consultation with the Chief Justice of India, the State Governor,
and the Chief Justice of the High Court.
In SC Advocates-on-Record Assn. case, the Supreme Court held that in the matter
of appointment of judges in a High Court, greatest significance should be attached
to the view of the Chief Justice of India. The Chief Justice of India may also
 JUDICIAL POWERS 75'

ascertain the views of one or more senior judges of the High Court, besides
consulting with his colleagues in the Supreme Court and the Chief Justice of the
High Court.
(c) It has been held in SC Advocates-on-Record Assn. case, that in matters of transfer
of judges of High Courts, the opinion of the Chief Justice of India was not only
having primacy, but was “determinative in nature”. Any transfer made in
accordance with the recommendations of the Chief Justice of India could not be
treated as punitive or an erosion of the independence of judiciary; such transfer
would not be justiciable on any ground. The consent of a judge or Chief Justice
(where Chief Justice is transferred from one High Court to another) is not
required. The Court, however, said that the power of transfer could be exercised
only in “public interest” i.e. for promoting better administration of justice
throughout the country.
t-jU- ' - 'if -' ■ -Jt~‘ ‘ '
w J**w

UNION AND STATE POWERS EXECUTIVE POWERS

Nature and Extent of Executive Power6
The Union Executive consists of the President, the Vice-President, the Council
of Ministers and the Attorney General. Article 52 provides that there shall be a
President of India. The executive power of the Union shall be vested in the President
(Head of the State) (Article 53) . All executive functions are executed in the name of
President, authenticated in such manner as may be prescribed by rules to be made by
President (Article 77). The President has wide administrative powers (to appoint and
dismiss officers, ministers, etc.), military powers, diplomatic and legislative powers.
Article 73 provides that executive power of Union shall extend to the matters
with respect to which Parliament has power to make laws and includes the exercise of
such rights, authority and jurisdiction as are exercisable by the Government of India
by virtue of any treaty or agreement Thus, executive power is co-extensive with
legislative powers of Union.
In Ram Jaw ay a Kapur v State of Punjab (AIR 1955 SC 549), it was observed,
'ordinarily the executive power connotes the residue of governmental functions that
remain after legislative and judicial functions are taken away. It is neither necessary
nor possible to give an exhaustive enumeration of kinds and categories of executive
functions. Executive power is not confined to administration of laws already enacted
but it includes determination of governmental policy, initiation of legislation,
maintenance of law and order, promotion of social and economic welfare, foreign
policy, etc.; in short, carrying on the general administration of State.
In this case, in pursuance of its policy of nationalising text books used in

6 “The Central Executive ...exercises not only executive functions but also, in a
limited way, judicial and legislative functions." Comment on the various
powers of the Executive at the Centre. [I.A.S.-95\
[Note : Also see the headings ‘Legislative and Judicial Powers of the Executive’
infra ]
schools in State, Punjab government issued an executive order acquiring the
4
copyright in selected books from authors and undertaking itself printing, publishing
and sale of books. Private publishing houses thus ousted from textbook business. This
order was challenged on the ground that executive power
EXECUTIVE POWERS 7?

of State did not extend to undertaking trading activities without a legislative

sanction. Held that executive power is not confined to matters on which legislation
had been passed. If executive formulates a policy to start a trade or business, it is not
always necessary to have legislative sanction, unless it requires expenditure of funds.
In this case, provision for funds in Appropriation Act was already made and there was
no need of a specific legislation. Specific legislation may be necessary, if
Government requires certain powers in addition to what it possess under ordinary law,
and such additional powers are not required in the present case.
In Moti Lai v U.P. Government (AIR 1951 SC 257), the court observed that
executive power must include all powers that may be needed to carry into effect the
aims and objects of the Constitution. An act would be within the executive power of
State if it is not an act which has been assigned by Constitution to other authorities,
and is not contrary to any provision of law and does not encroach upon the legal
rights of public.

POSITION OF PRESIDENT : RELATION BETWEEN PRESIDENT

AND COUNCIL OF MINISTERS7
The President must exercise powers according to the Constitution. Art. 53(1)
which vests the executive power of the Union in the President provides that the
power may be exercised by the President either directly or through officers
subordinate to him. For this purpose, Ministers are deemed to be officers subordinate
to him.
Article 74(1) provides that there shall be a Council of Ministers with Prime
Minister at the head, to aid and advise President in exercise of his functions. Article
74(2) lays that question whether any, and if so, what advice was tendered by minister
to the President shall not be inquired into in any court. Thus, relation between
President and Council of Ministers are confidential.

7 "India has a President but not a presidential form of Government”. Critically

examine the above statement. [C.L.C.-94]
"Though the parliamentary form of government envisaged under the
Constitution of India vests the real executive powers in the Council of
Ministers, the President is not a mere figure-head denuded of all powers. He
can and should exercise some vital powers without any aid and advice of the
Council of Ministers”. Critically examine this statement. [L.C.II-94/95/97]
Discuss the Constitutional position of President of India. On the eve of
general elections to the Lok Sabha and just after the last session of
Parliament, the government sends an Ordinance to the President extending the
benefit of job reservations to Dalit Christians. The President returns the
Ordinance and asks the cabinet to reconsider its advice. Is the action of
President sustainable under the Constitution ? Discuss. [1.A.S.-96]
78 CONSTITUTIONAL LAW (Part-I)
Article 75(1) says that Prime Minister shall he appointed by President and other
Ministers shall be appointed by President on the advice of Prime Minister. Article
75(2) I .ays that Minister shall hold office during the pleasure of President. Article
75(3) lays that Council of Mimsters shall be collectively responsible to the Lok Sabha
Prior to the 42nd Amendment, there was no clear provision in the Constitution
that President was bound by ministerial advice. This amendment amended Article 74
which makes it clear that President shall be bound by the advice of Council of
Ministers. However, by 44th Amendment, President has been given one chance to
send back advice to the Council of Ministers for reconsideration. However, President
shall act in accordance with advice tendered after such reconsideration.
According to Dr. Ambedkar, “Under the Draft Constitution, the President
occupies the same position as the King under the English Constitution. He is the head
of State but not of the executive. He represents nation but does not rule the nation. His
place in the administration is that of a ceremonial device on a seal by which the
nation's decisions are made known. He can do nothing contrary to the advice of
Council of Ministers nor can do anything without their advice”.
President’s discretion : A limited one
Alladi Krishna Ayyar, a member of the Drafting Committee of the Constituent
Assembly, observed that the word “President” used in the Constitution “merely stands
for the fabric responsible to the Legislature”. What he means by the term ‘President"
is the Union Council of Ministers which is declared to be collectively responsible to
the House of People i.e. Lok Sabha.
The role of the President as a figurehead is reflected in his indirect election. It
may also be noted that the Constitution nowhere uses the terms like “discretion” and
“individual judgement” for the President which were used for the Governor- General
under the Government of India Act, 1935.
Except in certain marginal cases, President shall have no power to act in his
discretion in any case:-
(i) Council of Ministers is responsible to Lok Sabha If the President ignores
the advice of Ministers enjoying the confidence in Lok Sabha, it may resign
and thus create a constitutional crisis. It is obligatory on the President to
have always a Council of Ministers.
(ii) If he dismiss any Ministry having support of Lok Sabha, they may bring
impeachment proceeding against him... this serves as a deterrent against the
President assuming real powers.
(iii) Appointment of Prime Minister - President's discretion is limited. Thus
when a single party gains an absolute majority and has an accepted leader,
President’s choice of selecting Prime Minister is a
Critical discussion
PRESIDENT’S ROLE : APPOINTMENT OF PRIME MINISTER IN HUNG
PARLIAMENT8*

8a. “The power of the President to appoint any person as Prime Minister is
uncontrolled. He may appoint a person representing a political party with
largest number of members of Lok Sabha short of bare majority even though he
had no written consent of any other member to support him Likewise, he can
EXECUTIVE POWERS 79

Art.75(l) casts the burden of appointing the Prime Minister (PM) and other
Ministers on the President. The Prime Minister has been described as “the keystone
of the cabinet arch, who is central to its formation, central to its life, and central to its
death”. Therefore, he must be a person who can secure colleagues and with his
colleagues he must be sure of the support of the popular House of Parliament, the
Lok Sabha. The system of Parliamentary Government requires that the PM along
with his colleagues, not only be responsible to the lower House, but that he shall be
able to justify his policy in Parliament (Laski, Parliamentary Government in
England, 228). Art.75 (3) of the Indian Constitution lays down that the Council of
Ministers shall be collectively responsible to the Lok Sabha.
Thus, under normal circumstances, when a political party has attained absolute
majority in the Lok Sabha, the President has no choice or discretion but to invite the
recognised leader of that part)' and appoint him the Prime Minister. However, if no
single party gains absolute or workable majority and a “coalition government’’ is to
be formed, the President can exercise a little discretion and select the leader of any
party who, in his opinion, can command the support of the majority in the Lok Sabha
and form a stable government.
However, even in such a situation (i.e. the case of “hung parliament "), the
President’s action is guided by certain conventions. In view of the fact that the
framers of the Constitution of India have adopted the British cabinet system, the
conventions operating under the English Constitution are relevant in this regard :
(a) First, in the case of defeat of ruling party in the lower House by a no-
confidence motion, the President should invite the leader of the opposition
to explore the possibility of forming a stable ministry. It was done by the
President, Shri N. Sanjeeva Reddy, by inviting Y.B. C ha van, the leader of
the opposition, to form the Government after Morarji Desai tendered his
resignation in 1979. However, after four days of hectic activities, Y.B.
Chavan informed the President his inability to form the Government.
(b) Secondly, where none of the parties has attained absolute majority in the Lok
Sabha, the President may invite the leader of" the “single largest party” to
form the government. In 1991, the President invited Mr.
Critical discussion contd...
Narasimha Rao, the leader of the Congress party, which was the single
largest party, to form the government. Similarly, after the sixth general
elections, the President appointed Mr. Vajpayee, the leader of the BJP,
which was the single largest party. The President asked Mr. Vajpayee to
prove the majority in the Lok Sabha within 13 days, which he was unable
to prove. In the recent seventh general elections (1998), the President
again appointed Mr. Vajpayee, the leader of the single largest party. This
time, however, the BJP government was able to prove its majority in the
Lok Sabha.
(c) Thirdly, if two or more parties form a coalition before the election and

also appoint a person even though he is not a member of Lok Sabha or even of
Rajya Sabha. His power to dismiss a defeated Prime Minister is likewise
uncontrolled’.
Discuss the above statement indicating the best possible option which the
President must follow if he wants to remain above controversy.[1C.11-95/96}
80 secure absolute majority in the election,CONSTITUTIONAL
the acknowledgedLAW leader of such
(Part-I)
a coalition should be invited to form the government. In 1977, Mr.
Morarji Desai, the leader of the Janta Party, a coalition of several parties
who fought election on the common platform, formed the government.
Similarly, in 1989, Mr. V.P. Singh, the leader of the Janta Dal (a National
Front, consisting of several local and national parties) was invited to form
the government.
(d) Fourthly, the President should invite the leader of the coalition or alliance
formed after the election, to form the government. Recently, in 1996,
after the sixth genera! elections, Mr. Deve Gowda, who was elected the
leader of the United Front (consisting of 13 parties), formed after the
election, was invited and appointed the Prime Minister by the President.
The United Front secured the requisite majority with the help of ‘outside’
support form the Congress party. It may be noted that the President had
first invited the BJP party, the single largest party in the sixth general
elections, to form the government. On the BJP government’s failure to
prove the majority, the President invited the leader of the United Front, a
post-poll alliance; there was no pre-poll alliance which had secured
absolute majority in the election.
It may be noted that before appointing any leader of a party/alliance as PM
the President on the basis of documentary evidences (i.e. affidavits, signature-list,
etc.) should be reasonably satisfied that the person concerned has the majority
support with him in Lok Sabha. Such ascertainment becomes necessary in view of
the fact that after being swomed in as PM he may use unfair means to garner the
lacking support and the very use of such means to remain in power is anathema to
the spirit of the Constitution.
The President should follow the conventions in the order in which they are
mentioned above. However, many scholars do not favour a distinction between a
pre-poll and post-poll alliance. According to them, such distinction is superficial as
can a minority alliance be given chance just because it is pre-poll and vice versa.
Above all, the “sole test” is the possibility of commanding the majority in
Critical discussion
the Lok Sabha. And this is what the President is required to ascertain; he should not
be concerned about the political manipulations or horse-trading. Under the Indian
system, the gaining of political power through formation of several political parties is
legal, hence a mere attempt to get more political power for a party is not
unconstitutional. Moreover, the President has to remain above the party politics.
But, some scholars are of the view that the ruling party should not be just able
to command the majority in the House, it should be able to justify its policy in the
Parliament. Therefore, the leader of the coalition/alliance formed after the elections
should be given chance in the last, because such a coalition is not formed on any
common principles and policies but solely with the object of getting into power.
More so, when the coalition is formed with the help of the defectors from the ruling
party and other parties join it simply to topple the government.
It is submitted that the “sole test” view appears to be correct. Neither a prepoll
alliance nor a post-poll alliance guarantees a stable government (the failure of
National Front /Janta Dal, on both occasions, is a case in the point). A pre-poll
alliance can create as many problems for the ruling party as a post-poll alliance. In
EXECUTIVE POWERS 81

1998 elections, the BJP got support from the parties like AIADMK (Ms. Jayalalitha)
and Trinmul Congress (Mamta Baneijee) - a pre-poll alliance Now, every second day,
the BJP is involved in negotiating with Ms. Jayalalitha or Ms. Banaijee.
Thus, the President should fust invite the leader of the single largest party and
ask him to prove his party’s majority on the floor of the House. If the single largest
party fails to get the majority support, then, the President should invite the second
largest party to prove its majority on the floor of the House. It does not matter that the
second largest party proves its majority via a pre-poll or post-poll alliance with the
other parties. However, the President may look into certain factors like whether there
is any condition attached to the support given by one party to the other, or whether
the support is unconditional. The ‘unconditional’ support is to be preferred.
Some scholars have suggested that in case of no clear majority in favour of
any party, the President should send a message to the Lok Sabha under Art.86(2) to
select its leader (i.e. PM). It is, however, submitted that such a course is contrary to
the spirit of the Constitution as it is repugnant to the party-based system of
democracy and a leader chosen by the House may never enjoy the majority' support
of it. Here, it may also be noted that the direction given by the Supreme Court to hold
a ‘Composite Floor Test’ in the U.P. Assembly to choose its Chief Minister is open to
question due to similar reasons.
Barring a few exceptions (e.g. In 1979, the President instead of inviting the
leader of the largest single party, the Janta Party headed by Mr. Jagjivan Ram, invited
the leader of the coalition formed after elections, Mr. Charan Singh, the leader of the
Janta (S), to form the government; the President’s action, unjustified

mere formality. Similarly, if on the death or resignation of a Prime

Minister, the ruling party elects a new leader, President has no choice but to
appoint him as Prime Minister
However, if no single party gains majority and a “coalition government” is to
be formed, President can exercise a little discretion and select the leader of any party
who, in his opinion, can form a stable Ministry. However, even in such a situation,
his action should be guided by certain conventions like {See ‘Critical discussion’).
It may be noted that the President may first invite a person and appoint him the
Prime Minister and then ask him to prove his majority or seek a vote of confidence in
the Lok Sabha within a reasonable time. In such a case, the action of the President in
proroguing the Lok Sabha on the advice of the new Council of Ministers and giving
them time to seek a vote of confidence is not only proper but entirely constitutional
(Dinesh Chandra v Chaudhury Charan Singh AIR 1980 Del 114).
(iv) Dismissal of a Minister/or Cabinet - Though Ministers hold office ' during
the pleasure of President, but President is bound to exercise his pleasure in
82 accordance with Prime Minister's advice. Thus, it is a LAW
CONSTITUTIONAL power of Prime
(Part-I)
Minister against his (undesirable) colleagues. (It is, however, necessary to
realise the idea of collective responsibility.)
There is no doubt about the President's power to dismiss ministry that has lost
the confidence of Lok Sabha. But, can President dismiss such ministry', which though
enjoys the confidence of Lok Sabha, but has lost the support of the people
In India, such ministry enjoying the confidence of Legislative Assembly have
been dismissed in various States. The will of the people must in the end prevail and
President will be violating the Constitution if he allows discredited government to
continue only because it has succeeded in managing to keep the members of
legislature in its favour. But the real problem is how to know the will of people (press
views, by-elections results, etc., may be used, however these methods are not free
from difficulties).
(v) Dissolution of Lok Sabha - So long as Prime Miriister and his cabinet
enjoys confidence, the President is bound to dissolve Lok Sabha only
EXECUTIVE POWERS 83

/
when advised by Prime Minister. But, this advice will not be binding on the
President, when Prime Minister loses his majority or unable to prove his
majority or a vote of non-confidence passed against him or when he is not
facing the Parliament, but President has proof that ruling party does not
have a majority.
In the above circumstances, the President must try to find out whether any
alternative ministry can be possible. He should make all possible efforts to avoid a
mid-term poll.
(vi) Communication with Prime Minister - Article 78 provides that it shall be
the duty of Prime Minister to communicate to the President 'all decisions' of
Council of Ministers relating to administration of affairs of Union and
proposals for legislation; to furnish such information relating to
administration as President may call for, and if the President so requires to
submit for the consideration of Council of Ministers any matter on which 'a
decision' has been taken by a Minister but which has not been considered
by the Cabinet.
A controversy regarding the President's position and his relation with Prime
Minister raised during the tenure of President Zail Singh and Prime Minister Rajiv
Gandhi. The controversy mainly arose due to mistrust created by Prime Minister not
meeting the President frequently and keeping him informed about the affairs of
Government particularly 'Bofors gun deal1.
The President has a right to know what his government is doing or proposes to
do. But the question how much information is to be furnished by Prime Minister to
the President is his prerogative. This should be a matter to be resolved by mutual
confidence and cooperation between the two.
(vii) The working of the Constitution since 1950 has established that President is
a nominal or constitutional Head and the real executive power vests in the
Council of Ministers.
The Supreme Court has consistently taken the view that position of President
(and Governors) under the Constitution is similar to the position of Crown under the
British Parliamentary system. It is the essence of Parliamentary Government that the
real executive powers should be exercised by the Council of Ministers responsible to
Lok Sabha. Ram Jaw ay a v State of Punjab (AIR 1955 SC 549), Shamsher Singh v
State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard.
Conclusions
Thus, India has a President but not a Presidential form of Government, as
found in America. The American President is the real Executive Head and is directly
responsible to the people, who elect President. American President is the chief head
of Executive, and administration is vested in him, and he appoint members of cabinet
who are responsible to him While, Indian President is head of the State but not the
84 Executive. He represents the nation but does CONSTITUTIONAL
not rule the nation,
LAWas (Part-I)
India has a
Parliamentary system of Government.
It is submitted that it would have never been the intention of the framers of
Constitution to make the President a puppet or a passive spectator. In view of the oath
which he takes... 'to preserve, protect and defend the Constitution and law, and that
....devote myself to the service of people of India', he is duty bound to advise, to guide
and exert his influence on decisions taken by the Prime Minister'. Thus the President
can exercise a persuasive influence. His role is at best advisory.
Hie 44th Amendment recognised this limited but essential role of the President.
But the weak position of President doesn't mean that his office is superfluous. He is
the symbol of Indian national unity. Being impartial and above the party politics, he
exerts his influence on the decisions of Prime Minister. The influence, however, will
depend on his sterling character, magnetic personality and selfless devotion to the
nation.
Mr. Nehru, the first Prime Minister of the country observed : “We want to
emphasise the ministerial character of the Government and that power really resided
in the Ministry and in the Legislature and not in the President. At the same time, we
did not want to make the President just a mere figurehead ... we did not give him any
real power but we have made his position one of great authority and dignity. He is
also the Commander-in-Chief of the defence forces ”
According to Dr. Jain, “the Constitution envisages not a dictatorial but a
democratic President who uses his judgement to keep the democratic and
representative government functioning and not to thwart or to subvert the same” (Dr.
M.P.Jain, Indian Constitutional Law, 1994 Ed.).
President R. Venkataraman in his autobiography My Presidential Years on
page 446 has expressed the view that advice of the cabinet violative of the
constitutional provisions is not binding on the President. Dealing with
recommendations of Chandra Shekhar’s Cabinet of 30 January, 1991 for dismissal of
Karunanidhi Government and dissolution of Tamil Nadu State Assembly (which was
made much before the Bommai case), Venkataraman writes, “It was my duty to act on
the advice of the Cabinet so long as the proposed action was not violative of the
provisions of the Constitution”. Thus he meant that recommendations of the Cabinet
violative of the provisions of the Constitution could be legally and constitutionally
stalled by the President.
Recently (1998), the President K.R. Narayanan did not accepted the United
Front Cabinet’s advice for the imposition of the President’s rule in the State of U.P.,
as the State Governor’s recommendations was unconstitutional and violative of the
decision in Bommai case. The President thus rescued the Constitution and
parliamentary democracy and put a blanket ban on misuse of Art 356

POSITION OF THE GOVERN OR2b

The executive power of the State is vested in the Governor and the State
Council of Ministers. Art. 153 provides that there shall be a Governor for each State.
Art. 162 says that executive power of State extends to matters with respect to which
legislature of State has power to make laws. Art. 166 says that executive functions
shall be authenticated in manner specified in the rules made by Governor. Clause (3)
EXECUTIVE POWERS
85

of Art. 166 provides that the Governor is authorised to make rules for the more
convenient transaction of the business of government of State and for its allocation
among ministers

Shamsher Singh v State of Punjab

(AIR 1974 SC 2192)
In this case, the appellants were dismissed from the judicial service by the order
of the concerned minister, without any reference to the Governor of the State. The
appellants contended that removal is a personal power of the Governor, and cannot be
delegated to the concerned Minister or Chief Minister of State.
The appellants rely on the decision in Sardari Lai v Union of India (AIR 1971
SC 1547), where it has been held that where the President or Governor, if satisfied,
makes an order under Art. 31 l(2)(c) that in the interest of security of State it is not
expedient to hold an enquiry for dismissal of an officer, the satisfaction of President
or Governor is his personal satisfaction. They contended that power of Governor
under Art. 234 (relating to appointment and removal of subordinate judges) is to be
exercised by him personally for these reasons :
(i) The Governor is by and under the Constitution, required to act in his
discretion in several matters. These functions and powers are not executive
powers of the State, and here aid and advice of Council of Ministers is not
required.
(ii) The aid and advice of Council of Ministers under Art. 163 is different from
the allocation of business of Government by Governor to Ministers under
Article 166(3). In the latter, Governor exercise his executive power by
allocating or delegating his functions. In the former, there
. is a restriction on Governor's powers in the form of aid and advice.
(iii) The powers of appointment and removal of subordinate judges imder
Article 234 have not been allocated to the Ministers under the Rules of
Business of the State of Punjab. _____________
2b. Assess the powers of the Governor as the head of the Government of a State
[I.A.S.-94]
6 The Supreme Court rejected these contentions, overruled Sardari
CONSTITUTIONAL Lc.I's case,
LAW (Part-I)
and observed as follows :
(1) Wherever the Constitution requires the satisfaction of President or
Governor, for example, in Article 123, 213 311 (2)(c), 356, 360, the
satisfaction is not the personal satisfaction, but it is the satisfaction in the
constitutional sense under the cabinet system of government. It is the
satisfaction of Council of Ministers on whose aid and advice the President
or Governor generally exercises all his powers.
(2) In all cases in which the President or Governor exercise his functions with
aid and advice of Council of Ministers, he does so by making rules for
convenient transaction of the business of Government or by allocation
among the Ministers in accordance with Article 77(3) and 166(3).
In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed that
although the executive power-is vested in President or Governor, it is actually carried
on by Ministers. The President or Governor means the President or Governor aided
and advised by Ministers. The allocation of business is the decision of President or
Governor on the aid and advice of Ministers, and allocation is not delegation. The
decision of any Minister or officer under Rules of Business made under Article 77(3)
and 166(3), is the decision of President or Governor.
(3) It is 'a fundamental principle of English constitutional law that Ministers
must accept responsibility for every executive act. The power of the
sovereign (or king) is conditioned by the practical rule that Crown must
find advisers to bear responsibility for his action. This rule of English law
is incorporated in our Constitution also.
Thus, the appointment and removal of persons is an executive action of
President or Governor to be exercised on the aid and advice of Ministers. That is why
any action by any servant of Union or State is brought against the Union or the State
and not against the President or Governor.]
Relation between Governor and Council of Ministers
It is same as that between the President and his Ministers, except that the
Constitution authorises Governor to exercise powers 'in his discretion'. Article 163
(1) says that there shall be a Council of Ministers with Chief Minister at the head to
aid and advise Governor except in cases where Governor can act in his discretion.
Article 163(2) says that if any question arises whether any matter .... as regards
which Governor is to act in his discretion, the decision of Governor 1 shall be final,
and the validity of anything done by Governor shall not be called into question on the
ground that he ought or ought not to have acted in his
EXECUTIVE POWERS 87

discretion. Though, Constitution doesn’t specially mentions discretionary powers,

except special responsibility of governor regarding administration of tribal areas in
Assam, and when governor also appointed administrator of a Union Territory, there
are certain circumstances where the governor will be called upon to exercise his
discretion.
Thus, the Constitution vests the Governor with discretionary powers This
departure from the strict principle of parliamentary system was justified in the
Constituent Assembly on the ground that the Governor is confeired with dual
capacity. He is not merely the head of the State Government but is also an agent of
the Central Government in the State. He is said to serve as the eyes and ears of the
Centre and so far to act in his discretion. In order that the Central Government
performs its duty imposed by the Constitution (Arts.256, 257, 356, 365), it must have
to have its agent in the States, who may act independently, in his discretion, not to be
advised by the State Executive, so far as his duty to watch the interests of his
masters, extends.
The circumstances under which a Governor may exercise his discretion are as
follows
(i) Appointment of Chief Minister (Article 164)(1) - This is a matter where
Governor can exercise his discretion, however, in exercise of their
discretion, Governors haven't followed any uniform practice, and it is a
matter of great controversy. Unless the all parties agree to follow certain
guidelines by way of a convention, the exercise of this function would
continue to be a source of political manipulation.
(ii) Dismissal of a Ministry (Article 164) (2) lays down that Minister shall hold
office during the pleasure of Governor, but this pleasure is exercisable only
on Chief Minister's advice. This follows from clause
(3) which says that Council of Ministers shall be collectively responsible
to Legislative Assembly. This means that so long as a Ministry enjoys the
confidence of majority in legislature, Governor can't dismiss it.
However, the dismissal of Ministry by Governor, on the assumption that it has
lost majority in legislature have aroused great controversy e.g. Ministry dismissed
without testing their majority in Assembly. In West Bengal, in 1967, Governor was
of the view' that he could dismiss.... 'on the basis of any material or information even
extraneous to the proceedings in the Assembly'. This view of Governor w as upheld
by Court in Mahabir Prasad v. Profulla Chandra (AIR 1969 Cal. 189), that the
power of Governor is absolute.
In Kashmir, due to split in ruling party, the National Conference, Mr. Farookh
Abdullah's ministry reduced to minority. 12 MLA's claimed they had Joined the 'real'
National Conference headed by Mr. Shah: In their signed letter, they urged Governor
to form government by inviting Mr. Shah. Governor invited him but at the same time
asked Mr. Shah to prove his strength on the floor of
-g8 CONSTITUTIONAL LAW (Part-fl

House. Hext., governor properly verified that Dr Abdullah had lost majority (through
letters of MLA's and personally meeting them) and asked new government to prove
its strength on the floor of House. Thus, Governor exercised his discretion in a
judicious and democratic manner.
In Andhra Pradesh, however, Governor acted in haste and undemocratic
manner by dismissing the Telgu Desam Ministry headed by NTR Rao, on the
strenuous information that he had been reduced to minority due to split in party.
Governor relied on list of supporters, who defected from party given by leadc; of
detectors, and did not personally verified it. When NTR Rao was willing to prove his
majority in Assembly, Governor didn't allowed him to do so.
The President has appointed a Committee of Governors to study and formulate
norms on the role of Governors, its recommendations are -
(1) The test of confidence in the Ministry should normally be left to a vote in
the Assembly. The Governor should have waited till the Ministiy had been
voted out of the office by House itself. ,
(2) A Governor has right to dismiss a Ministry if Chief Minister shirks his
primary responsibility of facing the Assembly within the shortest time to
test the confidence of legislature in him.
(3) A Chief Minister's refusal to test strength... can well be interpreted as a
prima facie proof of his no longer enjoying the confidence in Assembly.
(4) If an alternative Ministry can be formed which in Governor's view can
command a majority in Assembly, he must dismiss ministry in power and
install alternative ministry. If formation of such alternative Ministiy is not
possible, then President’s rule is to be imposed.
(5) So far as question of majority is concerned, it does not make any difference
whether the coalition partner withdraw support or the majority party'
government is reduced to minority by defections. The loss of majority by
reason of dissolution of coalition should not be equated by Governor with
loss of support of a majority in House. This is a question which was only to
be decided in House.
Even after this Report, which had laid certain norms, the Governors have
continued to exercise their discretionary powers in an arbitrary and partisan manner.
Governor's office (a vestige of colonial power) has been misused and he had been
made hand-maid of Union government [in view of the Governor's responsibility to
the President and latter's power to dismiss him under Art. 156. Art. 156(1) piovides
that the Governor holds office during the pleasure of the President. The expression of
displeasure of the President is not justiciable]. Not omy uie prestige of office has
declined, but politics in States became yet more unstable and unprincipled.
EXECUTIVE POWERS 89

Improvements - Healthy traditions must be created, with Union government playing a

more responsible role. Governors need greater independence vis-a-vis the Centre. He
must be an impartial person, capable of holdmg balance betw een national and
regional interests.
(iii) Dissolution of Legislative Assembly - Where Ministry has lost majority and
no alternative stable Ministry is possible.
(iv) Advising President under Article 356 for the imposition of President's rule
in the State.

LEGISLATIVE POWERS OF THE EXECUTIVE9

(Articles 123, 213)
The most important power of President is his ordinance making power (Article
123).
It is the power to legislate, when both Houses of Parliament are not in session,
thus it is not possible to have a Parliamentary enactment. The Governor possess such
power under Article 213 The ambit of this power is co-extensive with legislative
powers of Parliament i.e. it may relate to any subject (which Parliament can legislate)
and is subject to same constitutional limitations, as the legislation by Parliament.
President can withdraw an ordinance at any time. This power is to be exercised by
President (and Governor) on the advice of Council of Ministers. The ordinance must
be laid before the Parliament when it reassembles and cease to operate at the end of
six weeks from the date on.which Parliament reassembles; if both Houses pass
resolution disapproving of it before the expiry’ of six weeks, the Ordinance ceases to
operate on the day of passing of such resolution.
Validity of Ordinance Making Power - The President cannot promulgate an ordinance
unless he is satisfied that there are circumstances which render it necessary for him to
take immediate action. But, President himself determine whether such a situation has
arisen and a court cannot enquire into it i.e. propriety, expediency, necessity, and
motive (behind) of legislative Act. While an executive act can be struck down on the
ground of non-application of mind or mala fides, an Act or Ordinance cannot. An
Ordinance can be invalidated only on the grounds of contravention of constitutional
limitations.
The validity of ordinance had been challenged at times and the court has
upheld its constitutionality in majority of cases. In R.K. Garg v Union of India (AIR
1981 SC 2138), the court held that Special Bearer Bonds Ordinance 1981 was not
ultra vires of Art. 123. President is competent to issue an ordinance amending or
altering tax laws. Ordinance power is co-extensive with Parliamentary power, and

9 The repromulgation of the Ordinance is an 'abuse of power’ and ‘an aci ui fraud
on the Constitution' if the Government ventures to rule by(.repeated
Ordinances without taking courage to face the elected representatives* of the
people in the House by bringing a Bill displacing the Ordinance. Examine
critically the above statement in the light of judicial pronouncements.
[L.C.I1-94]
Point out the contingencies under which the President may promulgate
Ordinances. Discuss the limitations on this power. [I.A.S.-91]
90 while considering the validity of law the court will have nothingLAW
CONSTITUTIONAL to do with the
(Part-I)
morality of law and an ordinance might well include a situation created by a law,
being declared void by a court of law. Article 123 or 213 cannot be said to be
undemocratic.
An Ordinance stands on the same footing as an Act passed by the Legislature.
It cannot be treated as an executive action or an administrative decision. It is clothed
with all the attributes of an Act of Legislature, carrying with it all its incidents,
immunities and limitations under the Constitution (T Venkata Reddy v State of
Andhra Pradesh AIR 1985 SC 724). An ordinance has been held to be a ‘law’ under
Art. 21 of the Constitution (A.K. Roy’s case). As the Legislature can repeal an
existing enactment or amend it, so also, the President by an ordinance can repeal or
amend an existing legislation (Janan Prosanna Das Gupta v Province of W.B. AIR
1949 Call).
In A.K. Roy v Union of India (AIR 1982 SC 710) the court held that National
Security Ordinance was valid and not violative of Article 14. An ordinance is like a
Parliamentary law. However, it held that ordinance would be subject to the test of
vagueness, arbitrariness, reasonableness, and public interest and that it was passed
only when legislatures were not in session.
Abuse - In no country, except India, the Executive is vested with legislative power. In
R.C. Cooper v Union of India (AIR 1970 SC 564), the Supreme Cour* held that
“under the Constitution, the President being the Constitutional Head, normally acts,
in all matters including the promulgation of an Ordinance, on the advice of his
Council of Ministers”. Such power may be abused by a minority government to enact
a measure for a temporary period as not being sure of support in Parliament; by a
majority government in order to avoid debate in Parliament and possible amendment,
and advising the President to prorogue Parliament at any time having this specific
object in mind (mala fides) (By 44th Amendment, judicial interference in the case of
mala fides has been established).
The case of D.C. Wadhawa v State of Bihar (AIR 1987 SC 579) furnishes a
glaring example of abuse of ordinance power. 256 ordinances promulgated in the
State, and all of these kept alive by re-promulgation without being brought before the
Legislature, between 1976-81. The court called it a 'subversion of democratic
process' and 'colourable exercise of powers' and held that this amounted to a fraud on
the Constitution. The Executive cannot usurp the function assigned to the legislature
under the Constitution.
Parliamentary safeguards - Besides passing resolutions disapproving of ordinance,
Parliament gets a chance to review the measure if government seeks to replace an
ordinance by a Bill; and when government seek so, a statement explaining
circumstances which necessitated immediate action by ordinance must accompany
such Bill. However, no debate on above statement is allowed.
Peculiarity of Governor's power - In comparison to President's power, the Governor
can't make ordinance without 'instructions' from the President if -
(i) Ordinance contains provisions which would require sanction of the
President for introduction in State legislature.
(ii) Governor would have deemed it necessary to reserve a Bill containing the
same provision for consideration of President.
EXECUTIVE POWERS 91

(iii) An Act of State legislature containing the same provision would be invalid
without assent of President (when Bill reserved for President's
consideration^.

JUDICIAL POWERS OF THE EXECUTIVE

(.Articles 72, 161)
Under Article 72, the President has power to grant pardons, reprieves, respites
or remission of punisliment or to suspend, remit or commute the sentence to any
person convicted of an offence (i) in cases where the punishment is by Court Martial,
(ii) for offences against laws made under Union and Concurrent Lists - matters to
which executive power of Union extends, (iii) for death sentences.
Art. 72 further lays down that the power conferred on the President, however,
does not affect the power conferred by any law on any officer of the Armed Forces to
suspend, remit, or commute a sentence passed by Court Martial, and also the power
exercisable by the Governor of State under any law to suspend, remit, or commute a
death sentence. It may be noted that the British King and the U.S. President also
possess such judicial powers.
Under Article 161, the Governor has such power only for offences relating to
matters to which executive power of State extends; he cannot pardon for (i) and (iii)
above. In respect of suspension, remit or to commute death sentence, both President
and Governor have concurrent power.
The object of conferring this judicial power ("mercy jurisdiction")... is to
correct possible judicial errors, for no human system of judicial administration can be
perfect. “While exercising his pardoning powers, the President can scrutinise the
findings/witnesses on the record and come to a different conclusion both on the guilt
of the accused and the sentence imposed on him. In doing so, the President did not
amend/modify/supersede the judicial record which remained intact” (Kehar Singh’s
case).
A Pardon - rescinds both the sentence and conviction, and
absolves offender from all punishments. Commutation - from
harder to lighter punishments e.g. from death to rigorous
imprisonment. Remission - reduction of amount of sentence
without changing its character e.g. from 1 year to 6 months.
Respite - awarding a lesser punishment on special grounds
e.g. pregnancy. Reprieve - a stay or suspension of execution
of death sentence e.g. pending a proceeding for pardon or
commutation.
The pardoning power can be exercised before, after or dunng the trial. The
power is exercised, on the advice of Council of Ministers. The power cannot be
exercised when the matter is sub judice in the Supreme Court. Once the appeal is
filed in Supreme Court, Governor can't exercise his power of suspension of sentence
till judicial process is over as it would be invalid being in conflict with Supreme
Court rules (KM. Nanavati v State of Bihar AIR 1961 SCI 12). Also, President
should dispose such petition quickly (Sher Singh v State of Punjab AIR 1983 SC
361).
In Kuljeet Singh v Lt. Governor of Delhi (AIR 1982 SC 774), the petitioners
92 (Ranga and Billa) were found guilty of murdering two innocent children
CONSTITUTIONAL and they
LAW (Part-I)
were awarded death sentence. They presented a mercy petition to the President for
grant of pardon, which was rejected by President without assigning any reasons. The
petitioners contended that power of pardon is a power coupled with duty that must be
exercised fairly and reasonably.
Declaring that the exercise of President's power would have to be examined
from case to case, the court held that even the most liberal use of this power couldn't
have persuaded President to impose anything less than a death sentence in the present
case. However, it is submitted that to examine case to case implies court's judicial
review' on a matter which has been vested by Constitution solely in the executive.
This would make exercise of pardoning power, a matter for further litigation. The
question of standards and guidelines for the exercise of the power by the President
under Art. 72 however, was left open by the Court.
In Kehar Singh v UOI (AIR 1989 SC 653), regarding the assassination of
Prime Minister Indira Gandhi, the President rejected the petition on advice of Union
government without going into the merits of Supreme Court’s decision of death
sentence. The court held that a pardon is an act of grace and therefore it can't be
demanded as a matter of right. Kehar Singh had no right to be heard by the President.
The manner of consideration of petition lies entirely within the discretion of
President. The Court need not spell out specific guidelines for the exercise of
power... because this power is of the 'widest amplitude' and can contemplate a
myriad kinds of cases with varying facts.
The Court said that the President can’t be asked to give reasons foi his order.
The power of pardon is a part of constitutional scheme. The order of President cannot
be subjected to judicial review on its merits. In Jumma Khan v State of U.P. (1991) 1
SCC 752, it was argued that the petition rejected by the President require
reconsideration. Held, after examining the case, the court found no ground for
interference.
Privileges of President (Article 361)
(Legal Immunities or Protection)
(i) President shall not be answerable to any court for the exercise of power and
duties of his office, except when the President has been placed under
impeachment proceedings Immunity attached to the President will not
restrict the right of any person to bring suit against the Government of
India.
(ii) No criminal proceeding whatsoever can be mstituted against the President,
during the term of his office.
(iii) No process for the arrest or imprisonment of President shall be issued from
any court, during the term of his office.
(iv) No civil proceeding can be instituted in which relief is claimed against the
President during the term of his office, in respect of any act done by him,
until
(a) a notice given to the President,
(b) 2 months liave passed after the notice, and,
(c) notice states the nature of proceeding, cause of action, description of
EXECUTIVE POWERS 93

party, etc.

UNION EXECUTIVE POWER IN RELATION TO STATES

(Article 256-258 A. 352-356, 365) (a)Union control over States, in
normal times
Directions by Centre to States - Article 256 provides that the executive power of
State shall be so exercised as to ensure compliance with Parliamentary' laws, and the
executive power of Union shall also extend to the giving of such directions to a State
as it may deem essential for the purpose.
Such power given to the Centre is necessary for the proper execution of
Parliament laws e.g. untouchability law (uniform application of laws in all the
States).
Article 257 - States must exercise their executive power in such a way so as not to
impede or prejudice the exercise of executive power of Union in the State. For this,
Union can give directions to a State, also in two specific matters
(i) construction and maintenance of means of communication of national or
military importance, (ii) measures to be taken for the protection of railways within the
States. The Constitution prescribes a coercive sanction for the enforcement of its
directions through Article 356.
Delegation of Union's functions to States (.Article 258) - Parliament may with the
consent of State government entrust functions relating to any matter falling within the
executive power of the Union Under Cl.(2), Parliament can also use State machinery
for the enforcement of Union laws and for this purpose may confer power or impose
duties upon the State or its officers. No consent of State is necessary under Cl (2).
This constitutes a great encroachment on the autonomy of States. Article 258-A -
States may entrust functions to the Union government with the latter's consent.
Thus, where it is not inconvenient for either government to directly carry out its
administrative functions, it may get those function^ executed through the other
government. v '•
(b) Emergency provisions
Article 352 - 'National Emergency' is imposed due to war, external aggression or
armed rebellion i.e. when there is a threat to the security of the country. Though the
State legislature and government are not suspended, the executive, legislative and
financial powers rests in the Centre. Fundamental rights are suspended (except
Articles 20 and 21). Proclamation may be continued indefinitely if Parliament so
approves (within 1 month of making of proclamation), a period of 6 months extended
by each resolution. Proclamation can be made by the President only when the Union
cabinet recommends.
Article 356 - 'Failure of Constitutional Machinery in State' - If the President on
Governor's report, or otherwise is satisfied that a situation has arisen in which
government of a State can't be carried on in accordance with the Constitutional
provisions, he may issue a proclamation to that effect [Cl. (1)].
The following consequences ensue on the issuance of a proclamation under Art.
356(1)
(i) President may assume powers vested in Governor.
(ii) President may declare that powers of legislature of State shall be exercisable
94 by Parliament. CONSTITUTIONAL LAW (Part-I)
(iii) The President may make such incidental and consequential provisions as
may appear to him to be necessary or desirable for giving effect to the
object of proclamation. The President cannot, however, assume to himself,
any of the powers vested in High Court.
EXECUTIVE POWERS 95

When a proclamation is made under Art 356(1), the powers of the State
legislature are to be exercised by Parliament. Parliament can confer on the President
the power to make laws for the States. Parliament may also authorise tlie President to
delegate such powers to any other authority as specified by himself (Art. 357). It may
be noted that in comparison to Art. 352, under Art. 356, the State legislature remains
suspended and dissolved; however, fundamental rights remain unaffected.
The proclamation issued under Art. 356(1) may be revoked or varied by the
President on a subsequent proclamation. It is to bs noted that under Art. 356 the
President acts on a report of the Governor or otherwise. This means that the President
can act even without the Governor's report. This is justified in view of the obligation
of the Centre imposed by Art. 355 to ensure that the State government is carried on in
accordance with the constitutional provisions. In view of the Centre’s ultimate
responsibility to protect the constitutional machinery of the States, the framers
thought it proper not to restrict the Centre's action merely on the Governor’s report.
The Governor might not sometimes make a report.
Art. 365 also provides that where any State failed to comply with or to give
effect to Union directives, it shall be lawful for the President to hold that such a
situation has arisen in which the State government cannot be carried on in accrodance
with the constitutional provisions.
Duration of Proclamation under Art. 356
Art. 356(3) provides that a proclamation relating to State emergency shall be
laid before each House of Parliament and unless both Houses approve it by a
resolution, it shall cease to have effect at the expiration of two months.
However, proviso to clause (3) provides that if any such proclamation is issued
at the time when Lok Sabha is dissolved or the dissolution takes place during the
period of two months and the proclamation is passed by the Rajya Sabha but not by
the Lok Sabha, it shall cease to operate at the expiry of 30 days from the date on
which the new Lok Sabha meets, unless before the expiry of 30 days it has also been
passed by the Lok Sabha.
Art. 356(4) provides that the duration of proclamation can be extended by 6
months each time by both Houses ofParliament passing resolutions approving its
continuance. The proviso to clause (4) lays down that the maximum period for which
a proclamation can remain in operation is 3 years from the date it is issued under Art.
356(1).
Art. 356(5), however, lays down that beyond 1 year a proclamation can be
continued only if emergency under Art. 352 is in operation in the whole of India or in
the whole or any part of the State, and the Election Commission certifies that it is not
possible to hold elections to the State Legislature. It may
be noted that in Punjab, the President’s rule was imposed for 5 years but for this
the Constitution was amended several times
I
State of Rajasthan v Union of India
(AIR 1977 SC1361)
In 1977, nine States filed suits challenging the validity of the directives issued
by the Home Minister to Chief Ministers to dissolve their Assemblies and seek a
fresh mandate. Thus, President's rule was imposed in these States on the ground that
Assemblies in these States no longer represents the wishes of electorate (Ruling
96 Congress party had been routed in Parliament CONSTITUTIONAL
elections and JantaLAW
party had won;
(Part-I)
Congress party Ministry w*is in these nine States).
Plaintiff States contended that the letter disclosed the sole ground for
proclamation under Article 356 and such a proclamation upon that ground was
outside the scope of Article 356. And, ground was mala fide and unconstitutional, as
the intention was to gain political power. Union government contended that question
which arose for gauging the existence of a 'situation' which call for action under
Article 356 is non-justiciable.
Union Law Minister explained - Under Article 355, a duty is imposed on the Union
to protect every State against external aggression and internal disturbances and
ensure that government earned on in accordance with provisions of the Constitution.
The most important provision in the Constitution was democracy which meant that a
government, should function with the broad consent of people and only so long as it
enjoyed the confidence of people. The mere fact that at one time government in
States enjoyed confidence., didn't give them the right to govern unless they continue
to enjoy that confidence. If a situation arose in which serious doubts were cast upon
the government enjoying the continued confidence, then provision for premature
dissolution of Assembly came into operation. This was precisely the philosophy
behind the wide powers given to President under Article 355 and 356 that is to
maintain democratic form of government and national strength.
The Supreme Court upheld the Centre's action. The Court held that the
'satisfaction' of President under Article 356 can't be questioned ... except on the
grounds that it has been exercised mala fide and that it is based on wholly extraneous
and irrelevant grounds, because in that case it w'ould be no satisfaction of the
President. The choice between a dissolution and re-election or a retention of same
legislature for a certain period are matters of political expediency and strategy under
a democratic system. Question of political wisdom or executive policy can't be
inquired. Question of proper time for dissolution of Assembly is not a matter
extraneous to Article 356. Under the Indian system, the gist of political power
through formation of several political parties is legal, hence a mere attempt to get
more political power for a party is not unconstitutional.
EXECUTIVE POWERS 97

___ SCANNING OF ARTICLE 356 Critical djscussion

India’s federal system is one in which the structural-functional balance is in
favour of the Centre vis-a-vis the units, namely, the States. The Constitution- makers
stumbled on some provisions of the American and Australian Constitutions to the
effect that the federal government should ensure the maintenance of the Constitution
by the constituent States. In fact all the major federal countries of the world have
either expressly kept some provision of this nature in their Constitutions itself or have
evolved it through judicial decisions to counter exceptional insurgencies in the
federal units.
Despite its utility, Art.356 has often remained under a cloud of criticism. The
language of Art.356, which is quite wide and loose, has made the matter worse.
Art.356 has been described as “an indiscriminate and politically motivated invasion
of the Union to supersede the State Government”. Art.356 do violates the federal
nature of the polity and has often been misused by the Union for political gains. Even
those who are staunchly opposed to its use invite the Union government to resort to it
when the rival party is in the saddle. Art.356 is also criticised as being undemocratic,
because people of the State has no say in the matter.
Dr. Ambedkar, the architect of Art 356, had said that Art. 356 should normally
remain a “dead-letter” and would be used only as a last resort. However, upti! now, it
has been used nearly 100 times (at the average rate of two instances per year) and on
grounds as diverse as could be imagined. Such a large scale recourse to Art.356
undermines the prestige and authority of State governments, and is therefore against
public interest.
It is worth noting that Art.356 finds its place in part XVH of the Constitution
relating to emergency provisions. It is also to be noted that as per Art.355, it shall be
the duty of the Union to protect every State against external interna! disturbances and
to ensure that the government of the State is carried on in accordance with the
constitutional provisions. This implies that the Union Government has the obligation
to do whatever is in its power to help the State in its endeavour to conform to the
Constitution. Only when the Union fails in its attempt or finds it impossible to do
anything, that it should think of the next step, namely action under Art.356. The
prescription of the Constitution is far from looking at the first opportunity to
interfere. The power given under Art.356 is not the offshoot of a right, but the
compliance of a duty. It is the performance of this duty which justifies the total
invasion of the State field This shows that action under Art.356 is to be taken not out
of liking, but out of compulsion when circumstances aie so grave as it cannot be
dispensed with [Dr. Annoussamy, Scanning of Art.356’, Politics India, March 1998].
Proper/Improper grounds for the application of Art.356
Proper grounds
(i) Hung Assembly scenario - Where, after a general election, no party is able to
secure a working majority in the Legislative Assembly. Or, where

.
98 Critical discussion
CONSTITUTIONAL contd,..
LAW (Part-I)
the party having a majority declines to form a Ministry and the
Governor’s attempt to find a coalition Ministry able to command a
majority have failed. Or, where a Ministry having resigned, the Governor
finds it impossible to form an alternative Government
It may be noted that when a new State is created as a result of territorial
reorganisation or upgrading of a Union Territory and there is no Legislature for
such State until election is held therefor, resort may be had to Art.356 as a “stop-
gap” arrangement.
(ii) Corruption, maladministration, etc. - President’s rule may be imposed
when there is gross mismanagement of the affairs of a State government,
or abuse of its power, or corruption on the part of the State government.
(iii) Acting contrary to the Constitution of India - A subversion of the
Constitution by the State Government while professing to work under the
Constitution or creating disunity or disaffection among the people to
disintegrate the democratic social fabric, or to subvert its basic features’
such as federation, secularism or democracy. Thus, the President’s rule
may be imposed when a political party’ seeks to subvert the principles of
responsible government and sets up a party' dictatorship.
(iv) Acting contrary to the Union directives - Where a State government fails
to comply with the directions issued by the Union under the Art.257 (2),
(3) ; 353 A; 360 (3); 339 (2), even after warning.
(v) Failure to meet an extraordinary situation - e.g. an outbreak of
unprecedented violence, a great natural calamity such as a severe
earthquake, a flood, or a large epidemic, etc. Failure to meet such
situation amounts to an abdication of its governmental power by the State
government.
(vi) Security concerns - A danger to national integration or security of the
State (calling for an application of Arts. 352 or 355) or aiding or abetting
national disintegration or a claim for independent sovereign status.
Improper grounds
(i) Improper action by Governor in case of political instability - Where, after
the resignation of a Chief Minister, or after the dismissal of the Ministry
on loosing the majority support in the Assembly, the Governor
recommends dissolution under Art.356, without probing the possibility of
the formation of an alternative government.
Where the Governor declines the request of a Ministry which has not been
defeated on the floor of the House and recommends its supersession, without
giving the Ministry an opportunity to demonstrate its majority support through the
‘floor-test’ and acting solely on his subjective assessment that the Ministry no
longer commands the confidence of the Assembly. The floor-test may be dispensed
with only in exceptional circumstances, such as an atmosphere of violence, it was
EXECUTIVE POWERS
99
Cfjticahdiscussion contrl
not possible to convene a sitting of the Assembly for the purpose [S.i?. Bomtnai
case\.
(ii) Overwhelming defeat in the Lok Sabha elections - The Union Government
cannot dismiss a duly elected State government on the sole ground that the
ruling party in the State suffered an overwhelming defeat in the election to
the Lok Sabha (as held in Bommai case,,thus, disapproving contrary view in
State of Rajasthan v UOI case).
Further, if a State government is punished by repeated dissolution of its
Assembly, within a short period, the action under Art.356 is improper (State of
Rajasthan v UOI case).
(iii) Power used merely for achieving ‘good Government’ - The power cannot be
used by the Union Executive merely for achieving 'good Government’ in a
State, even while the Ministry is enjoying confidence of the majority in the
Assembly. The cause must be a ‘failure of the constitutional machinery’.
Further, every non-compliance with a particular provision of the Constitution
does not call for action under Art.356. The non-compliance shall be such as to give
rise to such a situation where the State government cannot be carried on in
accordance with the constitutional provisions (Bommai case).
(iv) Situation of 'internal disturbance’ - Where, in a situation of ‘internal
disturbance’ not amounting to or verging an abdication of its governmental
powers by the State government, all possible measures to contain the
situation by the Union, in the discharge of its duty under Art.355, have not
been exhausted [Art.58].
[Note : The proper / improper grounds, as mentioned above, are outlined in D.D.
Basu, Shorter Constitution of India, 12th Ed.].
If one looks at the past instances of imposition of President’s rule in India,
three common grounds emerge that have been invoked under Art.356 - breakdown of
law and order, political instability, corruption and maladministration.
Maintenance of public order is a constitutional pow'er and responsibility of the
State [Entry 1, List II]. If failure to maintain public order on the part of a State
government be taken as its failure to ‘carry on the government in accordance with
constitutional provisions’ within the purview of Arts. 355-356, failure to maintain
good local government [Entry 5, List II] or public health [Entry 6, List IQ, may also
be legitimate grounds for intervention of the Union under Arts. 355-356. Any such
wide interpretation would make the federal system under the Indian Constitution a
mere licence at the will of the Union government. It is only when the situation
becomes so grave as it cannot be controlled by the State government it should be
open to the State concerned to seek the help of the Union, as in the Constitution of
America and as indicated in Art.355 of our Constitution. If the internal disturbance
acquires the dimensions of an armed rebellion the proper
Critical discussion contd.
course would be an action under Art. 352.
Another ground frequently resorted to, is political instability. Instability is
inherent in the parliamentary system. England too experienced such situation In
Bommai case, the Supreme Court ruled that the political instability invoked in respect
of the States of Karnataka, Meghalaya and Nagaland was not a valid ground. Further,
political instability is not a problem of the Union, but that of the Governor, who is
100 the constitutional head of the State and has CONSTITUTIONAL
to handle the situation as per the
LAW (Part-I)
traditions of parliamentary democracy. It is true that the lack of discipline and
decorum among publicmen hampers the smooth working of the system. Resort to
violence within the percincts of the Assembly, or refusal of the Chief Minister to step
down when a criminal charge is impending or even framed, or frequent defections
and change of loyalties by the legislatures, shatters the parliamentary system. But
they are by themselves no reason to invoke Art.356. These maiadies of the political
body have to be treated appropriately. The recourse to Art.356 will be justified only
if no caretaker ministry may be put in place, or when election in the immediate future
is not possible
The third ground often invoked is corruption and maladministration. That is
no ground to dislodge a government installed by public verdict and answerable to the
electorate. If the Union government can have the right to stamp out a State
government from power on that account, State governments may also ask the Union
government to step down when corruption and maladministration become rampant in
the Union government.
Sarkaria Commission’s recommendations
The Sarkaria Commission has recommended that the President’s rule can be
used only in the event of the political crisis, internal subversion, physical break-
down, and, non-compliance with constitutional directives of the Union Executive.
The Commission has pointed out that approval of the Parliament is to be secured
before imposing the President’s rule.
The Commission inter alia recommended that before invoking Art.356, a
warning in specific terms should be given to the erring State. All alternatives should
be exhausted to contain the situation and all attempts to resolve the crisis at the State
level should be made. Such alternatives may be dispensed with only in case of
extreme urgency. The Governor’s report under Art. 356(1) should be speaking
document and the material facts/grounds on which Art. 356 is invoked must be made
an integral part of the proclamation issued under Art.356(l) for the purpose of
judicial review.
SUGGESTIONS
The consensus of opinion appears to veer round to amending the Art.356 to
prevent its misuse instead of abrogating it altogether. An amendment in general terms
(with explanation to the genera! rule in enumerating circumstances in which the
powers should not be invoked) will do. It is suggested that the President’s
satisfaction as envisaged by Art.356 should be reached at after consultation with a
five-member committee consisting of Prime Minister. Attorney General of India,
Chairman of Rajya Sabha, Leader of the Opposition party in Lok Sabha and the
Governor of the concerned State. It is also suggested that the corresponding provision
should be made for the Union as well (recent indications are that the Union
government is not immune from failure of constitutional machinery); in such a case,
there is more chance of the article being construed correctly and not being misused as
in the past. Judicial review is a good safeguard to keep down the frequency of
proclamations but a lasting solution resides elsewhere
A healthy convention should be developed so that the power under Art 356 is
neither exercised capriciously nor arbitrarily. The emphasis should be put on
developing the practice in consonance with the spirit of the Constitution. This can be
achieved if all the political parties appreciate the fact that in a democratic set up it is
EXECUTIVE POWERS 101

Critical discussion contd.

quite probable that beneficiary of Art.356 today might become the victim of it
tomorrow. Thus, Art.356 should be restored to only in case of failure of
constitutional machinery. Since it is an emergency provision, it should be strictly
construed.

Bhagwati and A.C. Gupta, J.J. emphasized that the defeat of the ruling party in
a State at the Lok Sabha elections could not by itself, without anything more support
die inference that the Government of the State could not be carried on in accordance
with the Constitutional provisions. But where there had been a total rout of
candidates belonging to the ruling party, and in some of the plaintift'-States, the
ruling party had not been able to secure a single seat, it was “symptomatic of
complete alienation between the Government and the people”. It was axiomatic that
no Government could function efficiently and effectively in accordance with the
Constitution in a democratic set up unless it enjoyed the goodwill and support of the
people.
In Additional District Magistrate, Jabalpur v Shivkccnt (AIR 1976 SC 1207),
the court observed that the maxim - Sains populi est suprema lax is important in
regard to a declaration or proclamation under Article 352 or 356; the stability of a
State or country and its people are matters of paramount importance. And, it was on
that principle which this court, deprived of the power to examine or question any
materials on which such declaration may be based, has to base its decision regarding
the validity' of a proclamation
Comments - These cases show that the Central Government takes a broad view of the
expression “the Government of the State cannot be carried on in accordance with the
provisions of the Constitution” and feels justified in invoking Art. 356(1) for
intervening in the administration by the State Government.
In State of Karnataka v Union of India (AIR 1978 SC 68), the Supreme Court
observed : “The kind of federation established in Indi# has a strong unitary bias, with
power given to the Centre of supervision, in certain circumstances, of the State
government. Hence, it cannot be said that Centre can take no action which result in
interference with the governmental functions of the State government”.
However, in the iecent historic judgement - S.R. Bommai v Union of India
(AIR 1994 SC 1918), the Supreme Court has laid down various guidelines in regard
to the use of Art. 356, which, it is hoped, would put a check on arbitrary dismissal of
State Governments in future and strengthen the federal structure of Indian polity.
The Supreme Court in the Bommai case observed : “In view of the pluralist
democracy and the federal structure that has been accepted under the Constitution,
the party or parties in power at the Centre and in the States may not be the same.
Therefore, there is a need to confine the exercise of power under Art. 356(1) strictly
to the situation mentioned therein which is a condition precedent to the said
exercise.”
[Note : The S.R. Bommai case is discussed in detail under the Question Section of
this Chapter ]
FURTHER QUESTIONS
Q.4(a) Is the advice of a Prime Minister defeated on the floor of Lck Sabha binding
102 on the President for the dissolution of Lok Sabha ? [L.C.II-95/96
CONSTITUTIONAL (supp.)\
LAW (Part-I)
(b) The year 1995 was most wasteful in the history of Indian Parliament as one or
the other ‘scam’ overtook the precious time which was meant for
legislative business. Even a brief session of Parliament held during 1996
could not materialise the government’s desire to enact the legislation on
some important subjects and the Parliament was adjourned sine die. The
Election Commission announced the general elections. The Union Council
of Ministers advises the President to promulgate two Ordinances on those
important subjects which the President refuses. Discuss the constitutional
validity of lhe advice of the Council of Ministers in giving the advice and
the decision of the President refusing to act on the advice in the light of the
constitutional provisions. [L.C.II -96 (supp.)]
(C) Is the President of India bound to accept the advice given by a Care-taker
Government ?
(d) Can the advice given by the Council of Ministers to the President be
inquired into by the courts ? Examine the scope and ambit of the exclusion
of judicial review mandated by Art. 74(2) in the background of decided
cases.
[I.A.S.-97]
A.4(a) Position of President (For details See the text).
The President is not bound to dissolve Lok Sabha on the advice of the Prime Minister
or Council of Ministers who does not enjoy the confidence of
EXECUTIVE POWERS 103

the majority in the House. However, in England, even a Prime Minister who is
defeated in a no-confidence motion can advise the King to dissolve the House of
Commons. Recently, Mr. James Callegham (PM) who was defeated in the House in a
no-confidence motion, advised the King to dissolve the House. The King dissolved
the House on his advice.
This precedent cannot be applied in the Indian situation. Firstly, because of the
multiplicity of political parties and secondly, in view of the country’s economic
situation which cannot face frequent elections and thirdly, political immaturity of the
electors.
It may be noted that in such condition, the President has option to accept or not
to accept the advice. If he accepts the advice he cannot be said to have acted
unconstitutionally. In such condition, the President makes his own assessment and
takes his own judgment as to whether any alternative ministry' is possible and mid-
term poll may be avoided [Modem Murari v Ch. Charcm Singh AIR 1980 Cal 95],
Dr. Ambedkar has said in the Constituent Assembly, “The President of Indian
Union will test the feelings of the House whether the House agrees tha't there should
be dissolution or whether the House agrees that the affairs should be carried on with
some other leader without dissolution”.
(b) In U.N. Rao v Indira Gandhi (AIR 1971 SC 1002), the Supreme Court held
that even after the dissolution of the Lok Sabha, the Council of Ministers
does not cease to hold office. The provisions of Art 75(3) which envisage
the doctrine of ministerial responsibility (to the Lok Sabha) has to be
harmoniously construed with the provisions of Arts.74(1) and 75(2). Thus
construed, Art.75(3) applies only when the House does not stand dissolved
or prorogued. It cannot, therefore, be said that on the dissolution of the
House, the Prime Minister and other Ministers must resign or be dismissed
by the President.
Art.74(l) is mandatory and, therefore, the President cannot exercise the
executive power without the aid and advice of the Council of Ministers. Any exercise
of executive power without such aid and advice will be unconstitutional in view of
Art.75 (1).
(C) In the case of a ‘care-taker’ government, the President is not obliged to
accept the advice tendered by the Council of Ministers to him except for
day to day administration. The President is free to judge as to whether the
advice of such Council of Ministers is necessary to cany on the day to day
administration or beyond that [Madan Murari v Ch. Charcm Singh AIR
1980 Cal 95]. A care-taker prime minister can take major decisions if the
situation so demands but he cannot take such policy decisions which would
benefit his party in the coming elections.
(d) The Supreme Court has held that though the advice given by the Council of
Ministers to the President cannot be inquired into by the courts [Art.74(2)], but
the materials on the basis of which such advice is given are not secret and can
be scrutinised by the courts [Judges Transfer case AIR 1982 SC 149], If the
court decides that the disclosure of documents relating to the advice is not
104 against the public interest or the State interest and orders for
CONSTITUTIONAL LAWdisclosure,
(Part-I) the
order will be binding and its non-compliance will amount to contempt of court
[R.K.Jain v UOI (1993) 4 SCC 119]. Also see S.R Bommai case, infra.
Q.5 Wliat are the circumstances and factual situations that may give rise to a
presumption as to the failure of Constitutional machinery in a State and
consequently imposition of President's rule ? Can a presidential proclamation
issued under Art.356 be challenged in a court of law on any ground
whatsoever? What is the maximum duration of the proclamation imposing
Presidential rule in a State ? [L.CJ-94/95/96/97, C.L.C.-95 (Jan.y9&, L.C.II-
94/95/97]
To what extent the Supreme Court has put a check on motivated and arbitrary
dismissal of State governments by the Centre under Art. 356 ? Discuss.
[I.A.S.-92/96]
(a) The Mayawati Government in U.P. fell due to the withdrawal of support given
to it by BJP. The State Governor places the U.P. Assembly under suspended
animation. Soon thereafter the Governor sends a report to the President
recommending dissolution of Assembly and proclamation of President’s rule
under Art.356 in the State. On the basis of the Governor’s report President
dissolved the Assembly.
On the basis of your understanding of S.R. Bommai case, discuss the following
questions
(i) Is the Presidential action under A.t.356 dissolving the U.P Assembly
constitutionally valid?
(ii) Can Assembly be restored/revived if the Supreme Court invalidates
Presidential proclamation?
(iii) Can the Presidential proclamation be challenged on the ground of mala
fide exercise of power? fC.L. C. -95 (Dec.)97]
(b) 'Article 355 enjoins upon the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of every
State is carried on in accordance with the provisions of the Constitution”.
Communal clashes in a State created a serious law and order problem for the
State government which requested the Union to send Central forces to meet
t.ie situation but the Union refused to do so. Instead, the President dismissed
the State Council of Ministers and dissolved the Legislative Assembly.
Discuss the constitutional provisions and judicial decisions. Could the
President take the above action even without the Governor’s report ? _ [L.C.II-
96 (supp.)]
A. 4 President’s Rule in States (Art.356)
Art. 356(1) reads : If the President, on receipt of a report from the Governor of
a State or otherwise, is satisfied that a situation has arisen in which the government of
the State cannot be carried on in accordance w ith the provisions of the Constitution,
the President may issue a Proclamation to that effect.
Article 356(3) reads : Every Proclamation under this article shall be laid before
each House of Parliament and shall cease to operate at the expiration of tw o months
unless before the expiration of that period it has been approved by resolutions of both
Houses of Parliament. Art. 356(4) provides that'the duration of proclamation can be
 X

EXECUTIVE POWERS ' 105

extended by 6 months each time by both Houses of Parliament passing resolutions
approving its continuance.
Maximum duration of Proclamation, is three years; beyond 1 year it may be
continued only if emergency under Art. 352 is in force, and election commission
certifies that it is not pos sible to hold elections to State legislature [Art. 356(5)].
There are only two direct decisions of the Supreme Court on Art.356. The first
case is State of Rajasthan v UOI (AIR 1977 SC 1361) (See the text). The second case
is discussed below

S.R. Bommai v Union of India

J.T. (1994) 2 SC 215
The case of S.R. Bommai v Union oflndia was heard and decidedly the
Supreme Court wherein the scope of the exercise of the power under Art. 356 by the
President was fully discussed if the need arose to impose President’s rule on failure of
constitutional machinery in a State. It was reaffirmed that a proclamation under Art.
356 is amenable to judicial review though difficulty arises for lack of judicial
manageable standards to judge such situations. Though the subjective satisfaction of
the President cannot be reviewed by court but material on which satisfaction is based
is open to judicial review on grounds of illegality, mala fide, extraneous
considerations, abuse of power or fraud on power, irrelevance or irrationality - the
truth, correctness or adequacy of the material cannot be gone into on merits. Nor can
a purely political question be review'ed by court. Judicial review is possible only in
areas which permit the application of totally objective standards.
In this case, the Supreme Court considered the constitutionality of Presidential
proclamations undei Article 356 with respect to States of Karnataka, Meghalaya,
Nagaland, Rajasthan, Madhya Pradesh and Himachal Pradesh. The Court declared
imposition of President’s rule in Rajasthan, Madhya Pradesh and Himachal Pradesh
as valid on the ground that secularism ,s a basic feature of the Constitution and acts of
State Government, which are calculated to subvert or sabotage secularism, can be
basis for holding that a situation has arisen in which Government of a State cannot be
run in accordance with the provisions of the Constitution
Proclamations in respect of States of Karnataka, Meghalaya and Nagaland
were declared unconstitutional is they were mala fide and were not based on relevant
material. However, since the elections were held and new Assemblies were
constituted no remedy by way of restoration of Ministry or Assembly could be
granted.
The majority of the Judges subscribed to the following conclusions
(1) Art. 356 confers extra-ordinary powers on the President. This power should
be exercised sparingly and with great circumspection.. a last measure to
restore the constitutional machinery in the State.
Federalism is the basic feature of the Constitution and the interpretation of
Art. 356 must preserve this fabric rather than sub veil it. The courts must
not adopt an interpretation which tends to whittle down powers reserved for
the States.
(2) The power granted under Article 356 is not absolute. Existence of material
which may include report of the Governor is a condition precedent for issue
106 of the proclamation. Use of Art. 356 solely on the groundLAW
CONSTITUTIONAL that (Part-I)
ruling party
in the State had faced overwhelming defeat in Lok Sabha elections was not
permissible58.
Where a ministry resigns or loses majority, the Governor cannot
recommend imposition of President’s rule without conducting a floor test of
exploring the possibility of forming a new Government.
(3) As to the scope and meaning of the expression “cannot be carried on in
accordance with the provisions of this Constitution”, it was held that
“cannot” meant “not to be able” and hence situation which do not create
impasse do not meiit use of Art. 356. Unless there is ‘breakdown of
constitutional machinery’ Art. 356 cannot be used.
(4) High Court or Supreme Court can stake down the proclamation as
unconstitutional if it is mala fide or based on irrelevant material. The
satisfaction of the President must be based on relevant matenal. Though the
sufficiency of the material cannot be questioned but legitimacy of inference
drawn from such material is open to judicial review. Even if part of material
is irrelevant the court cannot interfere so long as there is some material
which is relevant to the action taken.
----------------------------------------------------------------------------
5a. The Green party routs the white party in a general election to Parliament The
“Whites” do not get even a single parliamentary seat in the nine States where
they had the majority of seats in the State Assembly by virtue of an election in
the past. The President dissolves the assemblies of these States on the advice
rendered by. the Green party’s Cabinet at the Centre. The nine States
challenge the action before the Supreme Court. Will they succeed ?
[1A.S.-93]
EXECUTIVE POWERS 107

(5) Though power to dissolve State Legislative Assembly is implicit in Clause (1)
of Article 356, the President shall exercise this power only- after the
proclamation is approved by the both Houses of Parliament, as laid down in
Art. 356(3).
(6) Until approval of proclamation by Houses of Parliament, President can suspend
Legislative Assembly by suspending provisions relating to Legislative
Assembly under sub-clause (c) of Clause (1) of Article
356.
(7) Art. 356(3) is conceived as a control on the power of the President and also as a
safe-guard against abuse. In case both Houses do not approve the proclamation
it will cease to be effective on the expiration of two months. The Government,
which was dismissed, is revived and the Assembly, which was suspended, is
reactivised. Since the proclamation lapses and is not retrospectively
invalidated, the acts done, orders made and laws passed during the period of 2
months do not become illegal- or void. However, they are subject to review,
appeal or modification by the Government/Legislative Assembly. In case the
court strikes down the proclamation, it has the power to declare that acts done,
orders passed, etc. during the period of proclamation be treated as valid.
However, such declaration shall not preclude the powers of the
Government/Legislative Assembly as stated above.
(8) In case the proclamation is approved by both Houses within two months the
Government which was dismissed and the Assembly, which was dissolved,
will not revive on expiry of two months or revocation of the proclamation.
(9) If the court (Supreme/High Courts) strikes down tire proclamation it has power
to restore the dismissed Government and reactivate the Legislative Assembly
which might have been suspended or even dissolved. The court also has power
to grant interim relief such as staying the holding of fresh elections till the
decision of the case.
(10) Article 74(2) merely bars an enquiry as to the question whether any if so what
advice was given by the Council of Ministers to the President. It does not bar
the court from calling upon the Union Council of Ministers (Union of India) to
disclose to the Court the material on which the President formed his
satisfaction.
(11) Secularism is one of the basic features of the Constitution and any State
Government, which pursues unsecular policies, acts contrary to constitutional
mandate is amenable to action under Article 356.
(12) In all cases where the Ministry looses majority support or where the support is
claimed to have been withdrawn by some legislators, the
proper course for testing the strength of the Ministry was holding ^ test on
the floor of the House, except in cases where the holding 0f the “floor test’
was considered not possible for reasons given in writing
(13) The court gave other instances where invocation of Art. 356 would be
proper - (a) large scale law and order problems (b) gross mismanagement
of administration (c) corruption/abuse of power (d) damage to national
integration or security of State (e) creating disunity or dissatisfaction
108 CONSTITUTIONAL LAW (Part-I)
among people (f) State’s failure to implement Directive Principles.
Comments - While the majority judgment is laudable and will be able to put a bar on
future dismissals of a State Government by the Centre on political considerations, it
would be pertinent to make a few comments on the court’s decision The test of
secularism for dismissal of a State Government is vague. The concept of secularism
has been misunderstood and interpreted only with regard to Hindu fundamentalism
Does it not apply to the Muslim terrorist who had instigated violence causing
breakdown of law and order in a State (Kashmir, Maharashtra) thereby threatening
the ideal of secularism. If secularism is a basic feature of the Constitution, then
casteless society is also a basic feature of the Constitution. Inspite of the Supreme
Court judgment, several States are instigating caste franzy (U.P. and Bihar)
threatening the unity and integrity of the nation. Should these governments be not
dismissed ?
Nevertheless, the majority decision deserves to be complemented as it would
put a check on arbitrary dismissal of State Governments in future and strengthen the
federal structure of Indian polity.
Recent instances - In 1996, President’s rule was imposed in the State of Gujarat
following unruly scenes and violence in the Legislative Assembly amidst of which
the Chief Minister had proved his majority. The imposition of the President’s rule on
the ground of failure of law and order >n the Assembly cannot be justified under Art.
356.
In 1996, President's rule imposed in the State of U.P. on the ground that no
party was in a position to form stable government although no attempt was made by
the Governor in this regard. Although BJP was the single largest party but it was not
invited to form the Government as the Governor’s report indicated that it would not
be able to prove its majority in the House. This is against the judicial guidelines laid
down in the Bommai's case. Thus, a three-member bench of the Allahabad High
Court held that the President's rule in U.P. and its subsequent approval by Parliament
is unconstitutional, as it was based on irrelevant and extraneous grounds.
These instances highlight the fact that 'judicial review’ of Art. 356 is not a
final solution to the problem of misuse of Art. 356. In fact even knowing that the
matter may be taken to the court and that the proclamation is likely to be struck
down, the government may still opt for a proclamation for political expediency or the
political mileage the party in power can get till the proclamation is struck down.
On the other side, the fact of having the proclamation scrutinized by the Court
is not an ideal solution. If for instance a stay is obtained and ultimately the
proclamation is upheld, an undeserving government would have been in saddle
during the interval. If no stay has been granted and the proclamation happens to be
set aside, the government will be restored. It will exhaust itself in undoing what the
interim government would have feverishly put in place. Such dislocation in
governmental dispensation would hit the interest of the public.
For the time being, judicial review is a good safeguard to keep down the
frequency of proclamations but a lasting solution resides elsewhere. (See ‘critical
discussion' supra). It is not for the courts to formulate and much less to enforce a
convention to regulate exercise of such executive power. This is a matter which
 EXECUTIVE POWERS 109

entirely rests with the executive.

Decision of the cases in question
(a) (i) No State Assembly can be dissolved simultaneously with the imposition
of President's rule. Thus the President’s action of dissolving U.P.
Assembly without waiting for Parliamentary' approval is invalid.
(ii) If the Proclamation is found to be invalid, Supreme Court has the
power to restore a dissolved Assembly.
(iii) Mala fide implies exercising of power maliciously or exercising it for
an unlawful object. If it can be shown that the President acted on
either of these considerations, the exercise of power would be invalid
on the ground of mala fides.
(b) The imposition of President’s rule in the State on the ground that the State
has failed to curb the ongoing communal violence is a valid exercise of
power. Grave law and order problems can amount to breakdown of
constitutional machinery [S.R. Bommai case]. However, it is submitted that
mere worsening of law and order situation due to sudden break of violence
did not call for extreme step i.e. President’s rule; the Centre could have
deployed army in such cases.
Under Art.356, the President acts on a report of the Governor or otherwise.
This means that he can act even without the Governor's report. This is justified in
view of the obligation of the Centre imposed by Art.355 to ensure that the
Government of the State is earned on in accordance with the constitutional
provisions. The Governor might not sometimes make a report. The President can,
therefore, act even without the Governor’s report, if he is satisfied that such events
occurred in a State, which involve ,fhe special responsibility placed upon the Centre
to maintain the Statp wider the Constitution.
It is to be noted that as per Art 356 what is expected from the Governor is only
a report and not a recommendation. The Governor may rest content with statement of
facts, with at most his opinion thereon.
FREEDOM OF TRADE, COMMERCE AND
INTERCOURSE
[Articles 301-307)
Part XIII of the Constitution contains provisions relating to the freedom of
trade, commerce and intercourse within the territory of India. The provisions are laid
down in Articles 301-307. While the general rule of freedom of trade and intercourse
is enunciated in Art. 301, it may be subjected to restrictions laid down in Arts. 302-
305.
The Union control is predominant, as the Union government can impose
reasonable restrictions in the public interest, thus restricting the freedom of trade or
commerce. A State legislature too can impose reasonable restrictions, but requires
President’s sanction for it. Thus the Union possess a control over the State
legislature. Part XIII seeks to make India a single economic unit for the purposes of
trade and commerce under the overall control of the Union.
 4

Art. 301 : Freedom of Trade, Commerce, etc.10

Art. 301 reads : “Subject to the other provisions of this Part, trade, commerce
and intercourse throughout the territory of India shall be free”.
The “freedom” declared under Art. 301 may be defined as a right to free
movement of persons or things (goods), tangible or intangible, commercial or non-
commercial, unobstructed by barriers, inter-State or intra-State or any other
impediment operating as such barriers. Thus, ‘freedom of trade, commerce and
intercourse’ means the free movement/trans port and exchange of goods. It means
that there shall be no prior restraint upon trade and commerce.
Art. 301 is an adaptation from Sec. 92 of the Australian Constitution, which
reads : “...trade, commerce and intercourse among the States, whether by means of
internal carriage or ocean navigation, shall be absolutely free”. It may be noted that,
while Sec. 92 guarantees the freedom among the States, i.e., at inter-State level, Art.
301 guarantees it throughout the territory of India, interstate as well as intra-State
(within a State). Further, Sec. 92 declares the freedom “absolutely free” leaving it for
the courts to import certain restrictions/limitations on the freedom as dictated by
common sense and the exigencies of changing society. Art. 301, on the other hand,
secures the freedom subjected to restrictions/ limitations which may be imposed
under other provisions of Part XIII.

10 Examine the scope and application of Art. 301 of the Constitution.

[C.LC.-97]
112 CONSTITUTIONAL LAW (Part-I)

The ‘Commerce clause” contained in the American Constitution [Art. 1 Sec.

8(3)] gives power to the Congress to regulate commerce with foreign Nations and
among the several States. It has been held that where the subject-matter is national in
character or requires uniform legislation, the power to regulate that matter is with the
Congress and the State regulation will not be permitted [Southern Pacific Co. v Arizona
(1945) 325 US 761].
The word ‘trade', under Art. 301, would mean some real, substantial and
systematic or organised course of activity or conduct with a set purpose It has been held
that the protection offered by Art. 301 is confined to such activities as may be regarded
a lawful trading activity and does not extend to activities which are res extra
commercium, i.e., activities which could not be said to be trade or commerce or
business {State of Bombay v R.M.D.C. AIR 1957 SC 699). Thus, ‘unlawful’ trading
activities e.g drug-trafficking, flesh trade, smuggling, liquor trade, hiring of goondas for
committing crimes, gambling (holding of lotteries, etc.), rural money lending by
unscrupulous persons etc., are not protected by Art. 301.
The word ‘intercourse' is used to give the freedom declared by Art. 301 the
largest import. It thus includes the freedom to import things for personal (non-
commercial) or commercial use. Thus, intercourse between citizens involving
movement of property from one place to another is covered by Art. 301. It may be
noted that Art. 301 guarantees freedom not only from geographical barriers but also
from restrictions imposed upon the individual to carry on trade or business.
Object behind Art. 301
The main objective of Art. 301 is to break down the border barriers between the
States and to create one economic unit with a view to encouraging the free movement
and exchange of goods, which may be utilized to the common advantage of the entire
nation (Atiabari Tea Co. v State of Assam AIR 1961 SC 232); at the same time, State or
regional interests must not altogether be ignored {Automobile Ltd. case).
In a federation, it is necessary to minimise the inter-State barriers as much as
possible, so as to inculcate in the minds of the people the feeling that they are members
of one nation, though residing in different geographical divisions of the country {A.K.
Gopalan v State of Madras AIR 1950 SC 27).
Regulatory measures or Compensatory taxes
There is a violation of the freedom guaranteed by Art. 301 only w here a
legislative or executive act operates to restrict trade, commerce or intercourse, directly
and immediately, as distinct from creating some indirect or inconsequential barrier
which may be regarded as remote. If the restriction is directed against the flow of trade
and commerce or if the imposition is excessive, it may be said to be direct and would
offend Art. 301 {Automobile Transport Ltd. v State of Rajasthan AIR 1962 SC 1406;
Atiabari Tea Co. ease). The freedom may be impaired by fiscal as well as non-fiscal
measures.
Laws which are merely regulatory (incidental or indirect restrictions) or which
impose purely compensatory taxes are outside the scope of Art. 301. The word “free” in
FREEDOM OF TRADE, COMMERCE, ETC. 113

Art 301 does not mean freedom from regulation. “There is a clear distinction between
laws interfering with freedom to cany' out the activities constituting trade, and laws
imposing on those engaged therein rules of proper conduct or other restraints directed
to the due and orderly manner of carrying out the activities” (G.K. Krishtian v State of
T.N. AIR 1975 SC 583).
Thus, such measures as traffic regulation, licensing of vehicles, charging for the
maintenance of roads, marketing and health regulation, pnce-control, economic and
social planning, prescribing minimum w ages, instead of hampering trade do, in fact,
facilitate the free movement of trade or commerce. A law which levies a tax for the use
of a road/bridge, is not a barrier or burden on a trade but in reality helps free-flow of
trade by enabling the provision of more convenient and less expensive route
(Automobile Transport Ltd. case).
A regulation is not a restriction, the former applies to incidental or non-
essential transactions of a trade (viz. matters relating to hours, equipment, weight/ size
of load, lights, which form the incidents of transportation), the latter applies to direct or
essential transactions of a trade (viz. a total prohibition on movement of certain goods
during a specified period, or prohibition of any class of commercial or financial
transactions relating to any goods, such as forward contracts). The object of a
regulation is to ensure the orderly conduct of a trade Though such regulation may
involve some restraints (e.g. elimination of middlemen or prevention of hoarding), such
restraints do not restrict the flow of a trade, but rather facilitate such flow (G.K.
Krishnan v State of T.N. AIR 1975 SC 583).
Regulations like rules of traffic facilitate freedom of trade and commerce, w
hereas restrictions impede that freedom. Requirement of export permit pass for the
removal of timber from the forest, the authorities being bound to permit transportation
of timber covered by the pass, w'as held to be valid as regulatory and not restrictive in
nature [South Kamrup (Meghalaya) Timber Merchant Asscn. v State of Assam AIR
1995 Ass. 86],
However, it is not that regulatory measures cannot, in any case, be challenged as
interfering With the freedom guaranteed by Art 301. These can be challenged when
they are colourable measures to restrict the flow of trade, commerce and intercourse.
Thus, if the amount of a compensatory tax is unduly high or the regulatory measure is
too burdensome or is discriminatory, it certainly W'ould hamper trade.
Compensatory Taxes
It is only such taxes as directly and immediately restrict trade that fall within
the purview of Art. 301. In determining whether a tax directly offends against Art.
301, it is the movement of the goods which are the subject of the trade that has to be
borne in mind. If a tax is imposed solely on the basis that the goqds are carried or
transported, that directly affects the freedom of trade (Atiabpri Tea Co case;
Maharaja Tourist Services v State of Gujarat AIR 1991 SC 1650). On t^\e other hand,
a tax on ‘luxuries enjoyed by a person in a hotel '•■cannot have a direct and immediate
effect impeding the freedom of intercourse (Express Hotels v State of Gujarat AIR
1989 SC 1949).
114 CONSTITUTIONAL LAW (Part-I)

The very idea of a ‘Compensatory tax’ is service more or less commensurate

with the tax levied. Trade, commerce and intercourse must pay for the facilities
provided by the State by way of constructing, maintaining and regulating roads,
bridges and other means of transportation necessary for such trade, commerce or
intercourse. All that is necessary to uphold a tax as compensatory is the ‘existence of a
specific, identifiable object behind the levy and a nexus between the subject and object
of levy’, though the exact determination of benefit received and expenditure incurred
and levying the tax accordingly is not necessary. Once the nexus between the levy and
service is seen, the levy must be upheld, unless the compensatory character is shown
to be wholly or partly, a mere mockery and in truth restrictive of the freedom of trade
{Automobile Transport Ltd. case).
So long as there is some correlation between the tax recovered and the cost
incurred by the State, the tax cannot he challenged as expropriatory, even though there
may be a marginal excess over the cost. Merely because the budget estimates indicated
that the income raised by imposition of the tax was more than the expenditure incurred
on roads/bridges, the tax cannot be said to be not compensatory in character. It is not
necessary to show that the whole or a substantial part of collected is utilised. Once it is
held that the tax is either compensatory or regulatory in character, that would form the
guideline for the State Government to be kept in view to determine the rate at which
the tax be levied [Maharaja Tourist Services v State of Gujarat AIR 1991 SC 1650;
International Tourist Corpn. v State of Haryana AIR 1981 SC 774).
A compensatory tax, however, becomes “confiscatory” and thus violative of the
freedom contemplated by Art. 301, if -
(i) it is so excessive or heavy and prohibitive as to become an impediment in the
firee flow of trade and commerce e.g. an excise duty on foreign liquor, or
(ii) the burden imposeu disproportionately exceeds the cost of the facilities, or
(iii) no facilities are provided by the taxing State and the tax is purely fiscal in its
object, or
 FREEDOM OF TRADE, COMMERCE, ETC. 115

(iv) where no machinery is provided by the taxing State/or the assessment and
levy of tax, or
(v) the tax is discriminatory i.e. discriminates between the goods produced within
the taxing State and the similar goods brought from other States within the
taxing State (see Art. 304).
But, a compensatory tax cannot be struck down as confiscatory merely because
the tax, once imposed, is enhanced, and that, retrospectively (International Corpn. v
State of Haryana AIR 1981 SC 774). Further, sales-tax as such (Sodhi Transport v
State of U.P. AIR 1986 SC 1099), or a mere increase of a tax on the sale of particular
commodity in a State at a rate higher than in a neighbouring State, cannot be held to
violate Art. 301 (Vraj Lai v State ofM.P. AIR 1986 SC 1085). Still further, an octroi
duty (i.e. a tax on the entry of goods in the corporate area) is not clearly a tax on any
trade. The basis of such duty is not the movement or transport or the carriage of goods,
thus, it is not violative of the freedom conferred by Art. 301. Similarly, a toll tax (a
charge for the use of roads, bridges, market-place, etc.) cannot be equated with a
general tax for the use of certain facilities, thus, not violative of Art. 301
Case-Law
Atiabari Tea Co. v State of Assam (AIR 1961 SC 232) - In this case, validity of the
Assam Taxation (on goods carried by road or inland waterways) Act, 1954 was
challenged on the ground that it violated Art. 301. The petitioners were carrying on the
business of growing tea and exporting it to Calcutta via Assam, thus, liable to the tax
under the aforesaid Act while passing the Assam State. The Supreme Court held that
the tax imposed on the goods directly restricted their transport or movement and
therefore offended against Art. 301la.
The court said that imposition of a tax or duty in every' case would not amount
per se to an infringement of Art. 301. Taxation simpliciter as opposed to discriminatory
taxation was not within the terms of Art. 301. In determining the scope of the freedom,
each case must be judged on its own facts and in its own setting of times and
circumstances.
Automobile Transport Ltd. v State of Rajasthan (AIR 1962 SC 1406) - In tins case, the
validity of tax levied under Sec. 4 of the Rajasthan Motor Vehicles Taxation Act, 1951
was challenged. A tax was required to be paid in respect to motor vehicles used within
the State in any public place or kept for use in the State. The Court ruled that the tax
was not hit by Art. 301 as it was a compensatory tax having been levied for the use of
the roads provided for and maintained by the State.
Since the decision in Automobile Transport Ltd. case, the concept of regulatory
and compensatory taxes has become established and the courts have
[C.L.C.-97]
116 CONSTITUTIONAL LAW (Part-I)

liberalised the concept and allowed in subsequent cases such taxation at a higher
rate.
G K. Krishnan v State ofT.N. (AIR 1975 SC 583) - In this case, the validity of Madras
Motor Vehicles Taxation Act, 1931 which enhanced the tax on omnibuses from Rs. 30
per seat per quarter to Rs. 100/seat/quarter, was in question The Government said that
the measure was taken to avoid unhealthy competition between the omnibuses and the
regular State-carriage buses and to put down the misuse of omnibuses. The Supreme
Court held that the tax was 'compensatory’ in nature, the users of public motor vehicles
stand in a special and direct relation to such roads and derives a special and direct
benefit from them Thus they should make a special contribution to the maintenance of
roads over and above their general contribution as tax-payers of the State.
Meenakshi v State of Karnataka (AIR 1983 SC 1283) - In this case, the Supreme Court
upheld as compensatory tax, the increase in passenger tax on vehicles of bus operators
even though the enhancement was done to compensate the loss from the abolition of
octroi. The Court said that abolition of octroi rather facilitated the free, smooth,
unobstructed flow pf goods and passenger vehicles and was welcome in trade and
business circles.
B. A. Jayaram v Union of India (AIR 1983 SC 1005) — In this case, to promote all-
India and inter-State tourist traffic and thus to advance the trade and commexe, a
provision was made in the Central Motor Vehicles Act that tax should be paid in ‘home
State’ by tourist vehicles and vehicles should be exempted from the payment of tax in
other States (thus, States would exempt from the taxation tourist vehicles registered in
other States). Various States enacted this law, but later withdrawn the exemption
because of its misuse by the transporters. The question was whether by such withdrawal
the freedom of trade and commerce guaranteed by Art.301 gets impaired. It was held
that the freedom is not impaired merely because exemption is granted or withdrawn in
respect of a particular class of traffic. The exemption was no doubt a compensatory and
regulatory measure (... for services, benefits and facilities provided by the State for
motor vehicles operating within its territory), but, the States are obliged neither to grant
an exemption to advance the object of Parliamentary legislation under the M.V. Act,
nor to perpetuate an exemption once granted.

RESTRICTIONS UPON THE FREEDOM OF TRADE AND COMMERCE11*1

The freedom granted under Art. 301 is not absolute freedom but freedom from all
restrictions except those which are provided in other articles of Part
XIII (Art. 301 is subject to the other provisions of this Part), as well as regulatory and
compensatory measures. The power of the Union or the State to exercise legitimate
regulatory control is independent of the restrictions imposed by Arts. 302-305 (State of
Madras v Nataraja AIR 1969 SC 147). On the other hand, ‘restriction’ would not be
valid if it does not come under Arts. 302-305. How, since restrictions under the latter
provisions can be imposed only by ‘law’ the freedom under Art. 301 cannot be taken
away by mere executive action (Dy. Collector v Ibrahim & Co. AIR 1970 SC 1275).
The limitations imposed upon inter-State freedom of trade, commerce and

11a. A question based on the similar facts.

 FREEDOM OF TRADE, COMMERCE, ETC. 117

intercourse, by the other provisions of Part XIII are -

(i) It is subject to non-discriminatory restriction imposed by Parliament, in the
public interest [Art. 302].
(ii) Even discriminatory or preferential provisions may be made by Parliament,
for the purpose of dealing with a scarcity of goods arising in any part of India
[Art. 303(2)].
(iii) Non-discriminatory taxes may be imposed by States on goods imported from
other States similarly as on goods produced within the State [Art. 304(a)],
(iv) Reasonable restriction may be imposed by a State “in the public interest”
[Art. 304(b)],
(v) Restrictions imposed by “existing law” to continue except in so far as
provided otherwise by an order of the President [Art. 305]
(A) Restrictions on freedom of trade under Parliamentary Law [Arts.
302-303]
Art. 302 reads : “Parliament may by law impose such restrictions on the freedom
of trade, commerce or intercourse between one State and another or within any part of
the territory of India as may be required in the public interest”.
Art. 303 reads :
(1) “Notwithstanding anything in Art.302, neither Parliament nor a State
Legislature shall have power to make any law giving any preference to one
State over another, or making any discrimination between one State over
another, by virtue of any entry relating to trade and commerce in any of the
Lists in the Seventh Schedule.
(2) Nothing in clause (1) shall prevent Parliament from making any law giving
any preference or making any discrimination if it is declared by such law that
it is necessary to do so for the purpose of dealing with a situation arising from
scarcity of goods in any part of the territory of India”.
Art. 302 is, thus, subject to the condition that Union law should not be
discriminatory as between different States [Art. 303(1)] except where it ls necessary
for dealing with a situation of scarcity of goods [Art 303(2)]. However, Art. 302 is
restrictive of the freedom guaranteed under Art.301. This means that even where a
restriction imposed by law' imposes a direct burden on the freedom of trade under Art.
301, it may be constitutionally valid, if it is required in the ‘public interest’ e.g. to
prevent evasion of tax, to canalise inter-State trade through registered or licenced
dealers (State of T.N. v Seetalakshmi Mills AIR 1974 SC 1505), or levying of terminal
tax on all goods carried by railway/road into the territory of Delhi from any place
outside Delhi (Amrit Banaspati Co. v UOI AIR 1995 SC 1340).
In order to be protected by Art. 302, the nexus of the law with public interest
must be ‘reasonable’, even though that word is not used in Art.302 (Prag Ice Mills v
UOI AIR 1978 SC 1296). If the condition of ‘public interest’ is satisfied, Art. 302
would authorise both inter-State or mtra-State restrictions. Some of the instances of
118 CONSTITUTIONAL LAW (Part-I)

legislation under Art.302 are - Essential Commodities _ Act, 1955 and Orders made
thereunder, Defence of India Act, 1962 and Rules made thereunder, Central Sales Tax
Act, 1956, Mines & Minerals (Regulation & Development) Act, 1957.
(B) Restrictions on freedom of trade under a State Law (Art. 304)
Art. 304 reads : “Notwithstanding anything in Art.301 or Art.303, the State
Legislature may by law -
(a) impose on goods imported from other States or the Union territories any tax
to which similar goods manufactured or produced in that State are subject,
so, however, as not to discriminate between goods so imported and goods
so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or
intercourse with or within that State as may be required in the public
interest :
Provided that no Bill or amendment for the purpose of clause(b) shall be
introduced or moved in the State Legislature without the previous sanction of the
President”.
The words ‘Notwithstanding... Art. 301 or Art.303’ implies that the conditions
imposed by Art. 304 upon the power of a State Legislature to impose restrictions upon
the freedom of trade and commerce or to tax goods imported from another State
would be attracted only if it is first held that the State law offends agamst Art.301 or
Art.303 (Video Electronics v State of Punjab AIR
1990 SC 820).
Art. 304 (a) ; Non-discriminatory taxation of import
Art. 304 (a) enabled a State legislature to impose taxes on goods from other
States, provided similar goods as are produced within the State are subjected
to similar taxes. In other words, it validates a taxation which undoubtedly fetters inter-
State trade or commerce (i.e. a taxation which is violative of Art. 301), provided such
taxation is non-discriminatoiy. If such tax is ‘discriminatory’, it will be hit by Art.
303(1).
The object behind Art.304(a) is to prevent discrimination against imported goods
by imposing tax on such goods at a rate higher than that bome by local goods, since the
difference between the two rates would constitute a tariff wall or fiscal barrier and thus
impede the free flow of inter-State trade and commerce. The word discrimination’
means an intentional and purposeful differentiation, thereby creating economic barriers,
and involves an element of unfavourable bias; it implies an unfair classification
between local goods and imported goods (Video Electronics v State of Punjab AIR
1990 SC 820).
Whether there has been a discrimination between the imported goods and the
local goods would depend upon a variety of factors, including the rate of tax and the
item of goods in respect of the sale of which it is levied. Thus, discrimination takes
place if tax at the same rate is imposed on differently priced goods or tax at a higher
rate is imposed on the higher priced goods. Further, discrimination takes place if
 FREEDOM OF TRADE, COMMERCE, ETC. 119

different rates of tax are imposed by a State on goods imported into the State and goods
produced in that State. There is no discrimination unless the rate imposed is higher in
respect of the imported goods (Associated Tanners v C.T.O AIR 1987 SC 1922).
In Firm Mehtab Majid v State of Madras (AIR 1963 SC 928), thefsales- tax
imposed under the impugned Act on tanned hides/skins imported from outside was
higher as compared to the tax on tanned hides/skins manufactured in the State. The
Supreme Court invalidated the tax as discriminatory, and unconstitutional under Art.
304(a). Similarly, where an assessee purchases iron scrap both from local dealers in the
State of Karnataka as well as from dealers outside the State and the State of Karnataka
imposes a tax on the sale of ingots manufactured out of scrap purchased from outside
the State while ingots manufactured from locally produced scrap would not be
subjected to such a tax, the levy would be hit by Art. 304(a) (Andhra Steel Corpn. v
C.C.T. AIR 1990 SC 1912).
If there is a single area or any class of producers in a State who are exempted
from any tax, that tax cannot be levied upon imported goods, and such taxing law must
be held to be invalid so far as mported goods are concerned. In Indian Cement v State
of Andhra Pradesh (AIR 1988 SC 567), the impugned Notification provided for the
reduction in rate of tax on sale of cement by local cement manufacturers to
manufacturers of cement-products in the State. The benefit of the reduced rate of tax
was not available to the manufacturers of cement of other States having their sales
offices in the State of Andhra Pradesh. The Court invalidated the Notification.
When there is no discrimination
Mere imposition of a tax by a State Legislature would not amount to a preference
or discrimination vis-a-vis another State, merely because varying rates of tax prevail in
different States. The reason is that the flow of trade between different States depends
not necessarily upon the rates of sales tax, but upon a variety of factors, such as the
source of supply, place of consumption, existence of trade channels, trading facilities,
rate of freight, availability of efficient transport and the like (State of Madras v
Nataraja Mudaliar AIR 1969 SC 147). Thus there may be justiciable and rational
reasons for differentiation between the rates of tax on imported goods and the load
goods (Video Electronics v State of Punjab AIR 1990 SC 820).
A temporary exemption from sales tax to specified local goods, based on natural
and business factors does not violate Art. 304(a). In a case, the Notification issued by
the State of U.P. under the U.P. Sales Tax Act, 1948 read with the Central Sales Tax
Act, 1956, exempting new units of manufacturers, as defined in the Act, in respect of
various goods for 3-7 years from the payment of sales tax was held not violative of Art.
304(a) and Art. 301.
Where the rate of tax imposed by the Legislature is the same but it operates as a
higher burden when applied to the imported goods than the locally produced goods
because of difference in local conditions in different States or, the inequality arises not
as a direct and immediate effect of the imposition of the tax, there is no discrimination
(Associated Tanners v C.T.O. AIR 1987 SC 1922).
Thus there is no discrimination, where concession from sales tax is given in
120 CONSTITUTIONAL LAW (Part-I)

respect of goods manufactured in certain States which are comparatively under-

developed (such as Goa), because it does not involve any intentional discrimination but
is in furtherance of the economic development of the country and its unity by removing
economic barriers (Video Electronics case). A law applied uniformly in all parts of the
country, in effect, may result in differential treatment of the States owing to economic
conditions prevailing therein. Such a law will not be hit by Art. 303(1) on the ground of
discrimination.
It may be noted that where goods similar to those imported from other States are
not locally produced or manufactured within the State, Art. 304(a) will not authorise the
levy of tax on the imported goods. Hence, if there is no foreign liquor produced within
a State, it cannot, under Art. 304(a), impose any duty on imported foreign liquor
(Kalyani Stores v State of Orissa AIR 1966 SC 1686).
In the State of Karnataka v Hansa Corpn. (AIR 1981 SC 463), the Supreme
Court observed that ‘the microscopic discrimination that there was differential
treatment accorded to goods produced within a local area and those imported from
outside the local area but produced within the State was haldlv relevant for the purpose
of Art.304(a)’. In this case, the Karnataka Tax on Entry of Goods into Local Areas for
Consumption, Use or Sale therein Act, 1979 was held valid for it imposed tax both on
manufactured goods and similar goods imported from outside in a local area. There was
no discrimination between the goods produced within the State or those imported from
outside the State The discrimination between the goods produced/manufactured within
a local area and those brought from outside the local area into it was held to be
irrelevant.
Art, 304(b): Reasonable restrictions
Art. 304(b) empowers a State Legislature to impose such “reasonable
restrictions” on the freedom of trade, etc., as may be required in the “public interest”.
The word ‘reasonable' enables the court to interfere where the State, under the pretence
of preventing injury to the welfare of the citizens, intends to prevent the flow of
legitimate articles of inter-State commerce or to impose needlessly burdensome
conditions so as to substantially obstruct the commerce (Tika Ramji v State of U.P.
AIR 1956 SC 676). The restrictions which may be validly imposed >mder Art.304(b)
are those which seek to protect public health, safety, morals and property within the
territory of State (Kalyani Stores v State of Orissa AIR 1966 SC 1686).
In Tikaramji case, the UP. Sugar Cane (Regulation of Supply and Purchase) Act,
1953 prevented the growers from selling their sugarcane to anyone outside the State.
The Act also prevented the sale of sugarcane to the Sugar Mills except through the Co-
operative Societies consisting of the cane growers as members. The Act was held to be
imposing reasonable restriction within Art. 304(b) to protect the interests of the cane
growers and their cooperative societies. In Subodhaya Chit Fund (P) Ltd. v Dir. of
Chits (AIR
1991 SC 998), it was held that a requirement to deposit a cash amount as security for
realisation of the money due under a Chit Fund Scheme is in the public interest.
FREEDOM OF TRADE, COMMERCE, ETC. 121

Any restriction which does not impede the movement of goods but only
facilitates their passage Cminoi oe held to be unreasonable merely because they cause
some inconvenience e.g. insisting on a transit pass (Sodhi Transport v State of U.P.
AIR 1986 SC 1099); a despatch certificate; a permit disclosing particulars of tht goods
to be transported (State of Bihar v Harihar AIR 1989 SC 1119). Similarly, a tax, which
is regulatory or compensatory in nature, cannot be held to constitute an ‘unreasonable’
restriction, merely because a business rendered uneconomical by reason of the
imposition (Malwa Bus Service v State of Punjab AIR 1983 SC 634)
A rule which totally prohibits the movement of the forest produce between
specified hours is prohibitory of the right to transport forest products (Slate of Mysore v
Sanjeeviah AIR 1967 SC 1189). However, such a prohibition is justified m emergency,
as held in State of T.N. v M/s Sanjeetha Trading Co.(AIR 1993 _ SC 237). In this case,
after declaration of the timber as an essential article, a total ban was imposed on the
movement of timber from the State of T.N. to any other place outside the State, under
the Tamil Nadu (Movement Control) Order, 1982. ,The Supreme Court held that the
Order was a regulatory measure issued to satisfy the local requirement of timber and to
make it available to the common man at a reasonable price. In cases of total prohibition
the State which has imposed such ban has to satisfy the court that in spite of total
prohibition it atnounts only to regulation of the trade in such articles or that even if it
was a restriction it was reasonable within the meaning of Art. 304(b).
Thfe onus of showing that the restrictions on the freedom of trade, commerce or
intercourse are in the public interest and reasonable, is upon the State. In considering
the question of reasonableness, the court has to balance one relevant consideration
against another - the importance of freedom of trade as against the requirement of
public mterest. In the case of a ‘licence tax’ on tobacco, thus, the court inay consider it
as a reasonable restriction in the public interest in view of the fact that the
consumption of tobacco is a luxury, which also involves a health hazard (State of
Mysore v Sanjeeviah AIR 1967 SC 1189). Similarly, total prohibition of trading in
intoxicating liquors may be a reasonable restriction (Sheo Kumar v State AIR 1978 All
386). The court has upheld as reasonable and in the public interest an ad valorem tax
on goods entering a local area for consumption, use or sal? therein on the ground that
the object of tax was to compensate the Municipal Corporation for loss caused by the
abolition of ‘octroi’ duty (State of Karnataka v Hansa Corpn. AIR 1981 SC 463).
/
Proviso to Sec. 304(b) : President’s sanction
The proviso says that though a State legislature is empowered by CL (b) to
impose reasonable restrictions on the freedom of trade in the public interest, no law or
amendment for this purpose may be introduced in the State legislature without the
previous assent of the President.
Unless the Presidential assent has been obtained, a law' restricting trade or
commerce cannot be upheld even if it imposes reasonable restriction or restriction
which is merely regulatory with a view to facilitating trade (M/s Punjab Traders v
122 CONSTITUTIONAL LAW (Part-I)

State of Punjab AIR 1990 SC 2300; B. Sundaresan v State of Kerala AIR 1995 Ker
307).
The defect owing to v~*\t of previous assent may, however, be cured if the Bill
subsequently receives the President’s assent, by reason of Art. 255 (Atiabari Tea Co.
case, Automobile Ltd. case). Where the original Act received the President’s sanction
under Art. 304(b), no fresh sanction is required where the Amending Act, without
imposing any additional restriction, merely varied
the form of restriction (Subodhaya Chit Fund (P) Ltd. v Dir. of Chits AIR 1991
SC 998).
In Khyerbari Tea Co. Ltd. v State of Assam (AIR 1964 SC 925), it was held that
the fact that the President had given his sanction to the introduction of the Bill under
Art. 304(b), would lend, strong though not conclusive, support to the holding of the
restrictions to be ‘reasonable’.
Art. 305 : Saving of existing laws
Art. 305 reads : “Nothing in Arts. 301 and 303 shall affect the provisions of any
existing law except in so far as the President may by order otherwise direct, and
nothing in Ait. 301 shall affect the operation of any law made before the
commencement of the Constitution (4th Amendment) Act, 1955, in so far as it relates
to, or prevent Parliament or a State Legislature from making any law providing for
State monopoly in a particular sphere of trade or commerce [i.e. a law under Art.
19(6)(ii)]”.
An Act passed before the commencement of the Constitution is included within
the expression “existing law” even though the Act has been brought into force after the
commencement of the Constitution. It has been held that where an “existing law”
authorised the imposition of a tax, a resolution passed after the commencement of the
Constitution to levy such tax would be covered by the expression “existing law”
(Bangalore Woollen Mills v Corpn. of Bangalore AIR 1962 SC 562).
But if a bye-law, rule, order, notification or resolution made after the
commencement of the Constitution enhances or alters the rate of tax or duty authorised
by the existing law, such .subsequent bye-law, rule, etc. would not be “existing law”.
Where under an “existing law”, power was vested with an authority to impose a tax, the
tax so levied by such authority would be saved by Art. 305 even though such a levy
could not be imposed after the commencement of the Constitution (M/s Pb. Lime Stone
Co. v Cantonment Board AIR 1967 All 15).
Art. 305 also lays down that laws creating State monopolies in a sphere of trade
or commerce may not be declared invalid as infringing Art. 301. Art. 19(6) (ii) also
provides for such State monopoly.
Art. 307 : Authority for earning out the purposes of Arts. 301-304
Art. 307 empowers Parliament to appoint by law such authority as it considers
appropriate for carry ing out the purposes of Arts. 301-304. The exact composition of
the authority to be established, is left to. the Parliament.
Since the matters relating to trade, commerce arid intercourse are more economic
FREEDOM OF TRADE, COMMERCE, ETC. 123

in content than legal, a body consisting of experts such as economists, businessmen and
lawyers, may do a much better job in this area than a court having merely legal
expertise.
 j24 CONSTITUTIONAL IJW (Part-I)

Part XIII : Difficulties in textual constructions

Text of the Articles is a vital consideration in interpreting them. But, the text of
Articles 301-307 is rather ambiguous. The expression ‘subject to and ‘notwithstanding
anything in Article... (i.e. non-obstante clause) are used inappropriately and
indiscriminately.
Art. 302 makes a relaxation in the favour of Parliament, but Art. 303 imposes a
restriction on that Art 303 relates both to the Parliament and State Legislatures, though
Art. 302 makes no relaxation in favour of the State Legislature [(clause 1) relates to
both, but (clause 2) only to the Parliament], Art. 304 again begins with a non-obstante
clause mentioning both the Art 301 and Art. 303, though Art. 304 relates only to the
State Legislature.
P.K Tripathi (AIR 1985 J. 17) has, thus, suggested the repeal of Part XIII of the
Constitution.

FURTHER QUESTIONS
Q.l “The interpretation which was accepted by the majority in the Atiabari case is correct
subject to this clarification : Regulatory measures imposing compensatory taxes for the
use ot trading facilities do not come within the purview of the restrictions contemplated
by Art. 301 and such measures need not comply with the requirements of the proviso to
Art. 304(b) of the Constitution”. [Per S.K. Das, J., in Automobile Transport Ltd. v
State of Rajasthan],
Is this merely a clarification ? Discuss critically Does a simple tax lav/ enacted by a
State Legislature attract Art. 301 of the Constitution and accordingly, require due
compliance with Art.304 ? [L.C.I-94/95/96/97]
A tax measure may sometimes, but not always, restrict the freedom of trade, commerce
and intercourse. Discuss. Also examine critically the reasons why the Supreme Court in
Automobile case rejected the wide view of Shah J. and narrower view of Sinha J.,
about Art.301 in the Atiabari case.
[L.C.II-94/95/97]
How have the Courts reconciled the conflict between the freedom of trade and taxing
powers of the States ? [L.C.11-96 (supp.)]
A.2 Freedom of Trade and Taxation
Part XII of the Constitution relates to taxation’, while Part XIII to ‘freedom of
trade, commerce and intercourse’. Part. XIII of the Constitution presents a number of
problems in its interpretation. Two types of interpretation - wide and narrow, have been
adopted by the courts in a number of cases.
Wider view - According to the wide view, Art. 301 imposes a general restriction on
the legislative power and grants a freedom of trade, commerce and intercourse in all its
series of operations, from all barriers, from all regulations, and the only qualification
(or restriction) that is to be found in the article is the opening clause, namely, ‘subject,
to the other provisions of Part XIII’. The above view has two implications : firstly, Art
301 is not confined to the Entries rtlatmg to ‘trade and commerce’. Any law* made
under any Entry in any of the three lists (under the Seventh Schedule), including taxing
law's, may, accordingly interfere with the freedom guaranteed by Art. 301. Secondly,
regulatory measures or measures imposing compensatory taxes for the use of trading
I Kf-c-Lium ur IKAUIi, CUMMISKUC,, E.1U 12S
facilities also come within the purview of the restrictions contemplated by Art. 301
This will mean that if a State Legislature wishes to regulate trade or commerce, it.
cannot do so without obtaining the President's sanction as required by the proviso to
Art. 304(b). The practical effect would be to stop or delay effective legislation which
may be urgently necessary e.g. in the interest of public health, and this would curb the
autonomy of States (as the legislative powers of a State Legislature has been held to be
plenary with regard to subjects in List II, which also includes imposition of taxes).
Narrower view - According to the narrow view, taxing laws are governed by Part XII
provisions, and except Art 304(a) none of the other provisions of Part XIII extend to the
taxing laws. Also, the provisions of Part XIII apply only to such legislation as is made
under the Entries relating to ‘trade and commerce’. This will mean that the prohibition
in Art. 301 or Art. 303(1) did not extend to taxing laws, for, the taxing power was
distinct from the entries relating to ‘trade and commerce’. Therefore, the freedom
guaranteed by Art. 301 does not mean freedom from taxation, because taxation is not a
restriction within the meaning of relevant Articles in Part XIII. Thus, taxation
simpliciter is not within the terms of Art. 301.
In Atiabari case, the Supreme Court (dissenting opinion) adopted a namwer view
of Art. 301 but not that narrow as discussed above The majority, however, adopted a
wider view of Art. 301, as discussed above. In Automobile Ltd. case, the Supreme Court
observed that neither the wide interpretation nor the narrow view is correct. “In our
view', the concept of freedom of trade and commerce postulated by Art. 301 must be
understood in the context of an orderly society and as part of a Constitution which
envisages a distribution of powers between States and Union, and if so understood, the
concept must recognise the need and legitimacy of some degree of regulatory control,
whether by the Union or the States; this is irrespective of the restrictions imposed by
other Articles in Part XIII”. Thus, the Supreme Court in Automobile case held that tax
laws are not outside the comprehension of Art. 301 but regulatory/ compensatory taxes
do not come within the purview of the restrictions contemplated by Art. 301. Only the
taxes which directly impede the flow' of trade or commerce are violative of the freedom
guaranteed under Art. 301.
Atiabari Tea Co. case
The majority - Shah J. took a very wide view of Art.301. He observed that what is
guaranteed is freedom in its widest amplitude - freedom from prohibition,
126 CONSTITUTIONAL LAW (Part-I)

control, burden or impediment in commercial intercourse. Thus, taxation on commercal

intercourse, even imposed as a measure for collection of revenue is hit by Art-301. The
argument that tax laws were governed by Part XII alone is unacceptable. The doctrine
of trade, commerce, etc. enunciated by Art.301 is not subject to the other provisions of
the Constitution but is made subject only to the other provisions of Part XIII. Therefore,
a tax legislation which implies any restriction on the movement of goods attracts the
provisions of Art.301.
In a dissenting note Chief Justice Sinha took a narrower view of Art.301 : The
freedom declared by Art.301 does not mean freedom from taxation simpliciiir, but does
mean freedom from taxation which has the effect of directly impeding the free flow of
trade.
Automoiile Co. case
A 7-judge bench in this case, by 4-3 majority concluded that the interpreUtion
which was accepted by the majority in the Atiabari case is correct, but subject to this
clarification : Regulatory measures or measures imposing compensatory taxes for the
use of trading facilities do not come within the purview of the restrictions contemplated
by Art.301 and such measures need not comply with the requirements of the proviso to
Art. 304(b).
Commenting on the outcome of the judgement Seervai has observed that it has
overruled Atiabari “insofar as it [Atiabari] held that if State Legislature wanted P
impose the tax to raise the money necessary for road maintenance (i.e. a compensatory
tax), that could only be done after obtaining the President’s consent ®5 provided in
Art.304(b)” [G.K.Krishnan v State of T.N. AIR 1975 SC 583],
In Automobile case, the court developed the theory </{ compensatory and
regulatory taxes. The court evolved a workable test to decide whether a tax is
compensatory or not - ‘One is to enquire whether the trades people are having the use of
certain facilities for the better conduct of their business and paying not patently much
more than what is required for providing the facilities’.
'Compensatory tax’ does not mean that measure of tax should be proportionate to
the expenditure incurred. If tax were to be proportionate, it would not be a tax but fee.
To uphold a compensatory tax, there must be a nexus between the subject and object of
levy. If this is satisfied, it is not necessary that money realized should be put in a
separate fund [International Tourist Corpn. v State of Haryana AIR 1981 SC 774].
Thus in Malwa Bus Services (P) Ltd. v State of Punjab (AIR 1983 SC 634), court
upheld the validity of vehicles tax, even though the State was shown to be spending less
on road than what it was collected by way of tax. The court said that in addition to
expenditure on roads other expenditures of the State facilitating orderly and safe
movement of traffic have also to be taken into account.
The above theory is criticised by a number of jurists, authors, etc. Professor P.K.
Tripathi said that “when the Constitution guarantees the power to tax, the object of that
power is obviously to enable the State to collect revenue. To confine an entire tax power
under an entry to regulatory/compensatory legislation is to alter the very nature of the
power itself’. Professor M.P. Singh is of the view that “the Constitution clearly draws a
 FREEDOM OF TRADE, COMMERCE, ETC. 127

distinction between ‘taxes’ and ‘fees’ through several provisions To reduce a tax to the
level of fee amounts to the elimination of that distinction. The condition that the tax
should be compensatory or regulatory, brings it out from the definition of tax and
converts it into fee”. However, the compensatory theory is still a valid and binding
proposition of law.
Prof. M.P. Singh in his book Freedom of Trade and Commerce in India
concludes that taxes simpliciter are not inconsistent with the freedom (because taxes are
not ‘restrictions’ within the purview of Art. 301) and Part XIII is not concerned with tax
laws except to the extent provided in Art. 304(a).
Conclusions
(1) Taxes have been held to be generally outside the purview of Art. 301 (viz.
compensatory/regulatory taxes) unless the tax is shown to be a mere pretext
designed to injure inter-State trade, commerce, etc., i.e. directly impedes the
flow of trade.
(ii) Every' State has power under Entry 56 and Entry 57 of List II to impose taxes
to compensate it for the services, benefits and facilities provided by it. Thus,
courts have rejected a construction of Art. 304 which would have rendered
Entries 56 and 57 otiose or inoperative without the consent of Union
executive.
(iii) The word ‘restriction’ in Art. 304(b) has been held not to include regulation.
Therefore, taxes or other measures which are regulatory will not come within
Art.304(b).
Q.3(a) A an owner of a tourist coach, obtains an all-India permit under the provisions of M.V.
Act. His tourist coach has to pass through several States during the course of its trip.
These States sought to impose tax on his tourist coach under their respective taxation
laws enacted under Entry 57 of List II. Are these laws hit by Art. 301 ? Decide
(b) With a view of facilitating and encouraging tourism and commercial intercourse, the
State of U.P. conceives a plan to widen the existing roads, construct flyovers, and also
new roads. In order to meet the huge expenditure, the State increases the tax or. motor
vehicles, carrying passengers and goods, five times higher than the existing rates. [Entry
56, List II : “Taxes on goods/ passengers carried by road”; Entry 57, list II : “Taxes on
vehicles, suitable tor use on roads”]. Discuss the validity of State law under Art. 301 and
Art. 304(b).
 v_.v_yj irvJL/ jurvvv (raii-i)

(c) The State of Haryana imposes a heavy tax on passengers/goods passing through all
roads, including the national highways, in exercise of its power under Entry 56, List II.
Discuss the validity of law under Art. 301 read with Art. 304 [C.L.C.-
92/93/94/95 {Jan.))
A.3(a) Every State has power under Entry 56, List II to impose taxes to compensate it
for the services, benefits and facilities provided by it. Such taxation does not
infringe Art 301 or Art. 304(b).
(b) States have full power to impose taxes unless such taxes are mere pretexts
designed to injure inter-State trade and commerce. In the present case, tax
sought to be imposed is not a mere pretext to harm trade, rather it will
facilitate it, thus not hit by Art. 301 or Art. 304(b) A Presidential sanction is
not required for such taxes (i.e. compensatory taxes) under Art 304(b).
(C) See answers to parts (a) and (b) above.
Q.4 Discuss the constitutional validity of the following laws under Part XIII of the
Constitution :
(a) A law passed by a State banning the movement of forest produce within the State
between sunset and sunrise.
(b) A ban imposed by the Delhi Administration on plying of trucks through the main bazar
of Chandni Chowk between 8 a.m. to 8 p.m. each day in order to avoid congestion of
traffic in the area.
(c) With a view to ensure availability of timber to the common man at a reasonable price,
the State of T.N. declares timber as an essential commodity and imposes a total ban on
the movement of timber from the State to any other area outside the State. [1.A.S.-
96]
(d) A law passed by State M imposing a tax of 9% on tobacco imported from State N. State
M itself does not manufacture or produce tobacco. Will your answer be different if
State M itself produce tobacco and imposes a tax of only 5% on it?
(e) State A imposes restrictions on the import of goods/from State D only. The purpose of
such restriction was to protect the interest of domestic industry.
[L.C.I- 93/95/96/97; C.L.C-95 (Dec.); L.C.II-94/95]
A.4(a) In State of Mysore v H. Sanjeeviah (AIR 1967 SC 1189), it w'as held that a rule
which totally prohibits the movement of forest produce between sunset and
sunrise is prohibitory or restrictive, and not regulatory, because a rule
regulating transport in essence peimits transport subject to its orderly
movement and prevention of harm and danger.
However, in State of T.N. v M/s. Sanjeetha Trading Co. (AIR 1993 SC
237), the Supreme Court upheld the law totally prohibiting export of timber as
FREEDOM OF TRADE, COMMERCE, ETC. 129

it was a ‘regulatory1 measure for ensuring the availability of timber to a common

man at a reasonable price (there was scarcity of timber in the State and it hss to be
declared as an essential item) It was held that even total prohibition on the movement
of ‘essential’ commodity amounts to regulation only. The matter may be different in
case of ‘non-essential' commodity,
(b) The word ‘free’ under Art.301 should not be taken to mean freedom from
regulation. Thus, traffic laws are regulatory' laws and they are not hit by
Art.301.
(C) See answer to part(a) above.
(d) Where goods similar to those imported from other States are not locally
produced or manufactured within the State, Art. 304(a) will not authorise
the levy of tax on the imported goods (Kalyani Stores v State of Orissa
AIR 1966 SC 1686). Thus, State M cannot impose a tax on tobacco
imported from State N, as State M itself does not manufacture or produce
it.
However, if State M itself produce tobacco and imposes a lesser tax on it, as
compared to the imported tobacco, then the taxation will be hit by Art. 301 and
304(a). A tax which has the effect of discriminating between goods of one State (e.g.
home State) and goods of another, may affect the flow of trade or commerce.
(e) It may be noted that a State may grant some temporary concessions to the
local goods, and thus differentiate between the local and imported goods.
As in such cases the discrimination cannot be said to be intentional and
there is no element of unfavourable bias. But, if a State restricts import of
goods from a particular State only, then it is creating economic barriers, as
the other State may also restrict import of goods from that State. TIius
State A’s action is invalid.
in IV. B. Hosiery Asscn. v State of Bihar (1988) 3 SCJ 241, the notification
issued by the State of Bihar exempting hosiery goods manufacturers in Bihar from
levy of sales tax to grant incentives to hosier)' industries in Bihar without allowing
such benefit to the hosiery goods manufactured outside Bihar was held to be
violative of Art.301 as such discrimination is bound to affect free flow of goods from
outside States into Bihar and amounts to hampering the free flow of trade and
commerce. “Variation of the rate of inter-State sales tax does affect free trade and
commerce and creates a local preference which is contrary to the scheme of Part XIII
of Constitution [India Cementv State of A. P. (1988) 1 SCC 743].
Q.5 The State of Haryana enacts ‘Haryana Sales Tax Act, 1996’ which seeks to impose a
tax at the rate of 50% of the price of all gcrxls sold in that State. One of the dealers
who is doing business in the sale of rice in the State
challenged it under Art.301 How would you decide the case? Does it make any
difference in you answer if the law has been reserved for the consideration of President
and obtained his sanction ? [C.L.C.-96]
A.5 Art.301 assures freedom of inter-State as well as intra-State (within the territory
130 CONSTITUTIONAL LAW (Part-I)

of State) trade and commerce. Normally a tax on sale of goods does not
directly impede the free movement or transport of goods [AndhraSugars Ltd,
v State ofAP. AIR 1968 SC 599], However, if sales tax is unduly high, it
would hamper the trade and commerce (as in the case in question). Thus the
State law is invalid.
A sales tax or a tax on goods/passengers carried by road, etc., though expressly
authorised by the Constitution as heads of State taxation, may have to be justified under
Art. 304(b), if they are challenged as excessive in amount, to such an extent that they
really operate as a restriction upon the movement of goods/persons or they impose a
burden upon the instrumentalities of commerce or activities which are an integral part
of the flow of commerce in such manner that they must be held to be direct impositions
upon the freedom of trade or commerce (Mehtah Majid v State of Madras AIR 1963 SC
928).
Art.304(b) provides that notwithstanding anything contained in Art.301, a State
Legislature can impose restrictions on freedom of trade and commerce, but such
restrictions must be reasonable and in public interest; a bill for such purpose requires
previous sanction of President. Thus, if the President’s assent has been obtained, the
State law would be held valid. The fact that the President had given his sanction under
Art. 304(b) would lend, strong though not conclusive, support to the holding of the
restrictions to be ‘reasonable’ (Khyerhari Tea Co. v State of Assam AIR 1964 SC 925).
AMENDMENT OF CONSTITUTION
[Article 368)
The amendment of the Constitution, at times, becomes necessary to adapt to
the changing needs of national development and strength; to overcome the difficulties
which may encounter in future in working of the Constitution; and to realise any
popular demand for changing the political system e.g. State reorganisation,
provisions for SC/STs, lowering of age for voting, etc. The amendment of
Constitution should only be resorted to in cases of serious repercussions or emergent
circumstances or a special contingency.
However, the amendment of Constitution often been used to achieve political
purposes or to override judicial verdicts. Moreover, multiple and multifarous
amendments undermines the sanctity of Constitution as an organic instrument and
creates confusion. For example, the 42nd Amendment ('Act of Revision 1) effected
vital changes (the Congress government took advantage of its monolithic control) e.g.
fundamental rights devalued vis-a-vis directive principles, legislature override the
judiciary, etc. The 43rd and 44th Amendments by Janta Party government wiped out
many of the provisions of 42nd Amendment.
The procedure for amendment, instead of being rigid, has rather proved too
flexible, and more than seventy Amendments have been made so far. There is no
separate constituent body for amendment and the Parliament, the ordinary legislative
organ of Union, performs the function.
The fact that many amendments have been made just to amend the
amendments justifies the conclusion that on some occasions the Parliament had acted
in hasty and casual manner. In this respect the Parliament lost its credibility in such a
manner and to such an extent that the judiciary is forced to import the concept of
'unamendability of the basic features'.
Art. 368 : Power of Parliament to amend the Constitution and procedure
therefor1 :
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of
this Constitution in accordance wi t e procedure laid down in this Article. _______
________
!. Enumerate the various procedures of amending the Constitution [/.AS. 93]
132 CONSTITUTIONAL LAW (Part-I)

(2) An amendment of this Constitution may be initiated only by the

introduction of a Bill in either House of Parliament, when the Bill is passed
in each House by a majority of the total membership of that House and by a
majority of not less than two-thirds of the members of House present and
voting, the Constitution shall stand amended.
Provided that if such amendment seeks to make any change in -
(a) Arts. 54, 55, 73, 162 or 241, or
(b) Chapter IV of Part V, Chpater V of Part VI, or Chpater I of Part XI, or
(c) any of the lists in Seventh. Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of Art. 368 itself,
the amendment shall also require to be ratified by the legislature of not
less than one-half of the States.
(3) Nothing in Art. 13 shall apply to any amendment made under this Article.
(4) No amendment of this Constitution (including the provisions of Part III),
made or purporting to have been made under this article [whether before or
after the commencement of Sec. 55 of Constitution (42nd Amendment) Act,
1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by
way of addition, variation or repeal the provisions of this Constitution under
this article.
(Note : Clauses (4) and (5) were held unconstitutional in Minerva Mills case.)
For the purposes of amendment the provisions of Constitution fall under 3
categories :
(a) Amendment by Simple Majority - of each House of Parliament. It is like an
ordinary bill. Formation of new States, creation or abolition of Legislative
Councils (Arts. 4, 169 and 239-A) is made by such procedure. Thus,
amendment at the instance of the States, or amendment by State
legislatures, are included in such category. Amendments under this
category are expressly excluded from the purview of Art. 368.
(b) Amendment by Special Majority i.e. majority of'total members of each
House' and by a majority of at least 2/3rd 'present and voting'. All
amendments, other than those referred to above, come- within this category.
(c) Amendment by Special Majority and Ratification by States - The States are
given an important voice in the amendment of these matters:
Election of President, Extent of executive power of Union and States,
Supreme and High Courts, Distribution of legislative powers between
Centre and States, and three lists, Representation of States in Parliament
and Art. 368 itself. These are provisions which relate to the federal
structure of the Constitution and the powers, position and authority of the
constituent States.1®
AMENDMENT OF CONSTITUTION 133

ARE FUNDAMENTAL RIGHTS AMENDABLE ?

(I) In Sankari Prasad v Union of India (AIR 1951 SC455), the Supreme Court held
that the power to amend the Constitution including the fundamental rights is
contained in the Article 368, and that the word 'Law' in Article 13 includes only an
ordinary law and does not include constitutional amendment which is made in
exercise of constituent power. The Court thus distinguished between the ordinary
legislative power and constituent power.
In Sajjan Singh v State of Rajasthan (AIR 1965 SC845), the Supreme Court
held that the words 'amendment of Constitution' means amendment of all the
provisions of Constitution.
(IF) Golak Nath v State of Punjab
(AIR 1971 SC 1643)
In this case, the Supreme Court by a majority of 6 to 5 overruled its earlier
decisions in Sankari Prasad and Sajjan Singh cases and held that Parliament cannot
amend the Fundamental Rights, as these rights are assigned transcendental position
under our Constitution.
The Chief Justice rejected the argument that power to amend the Constitution
was a sovereign power and that it did not permit any implied limitations, and
observed that amendment is a legislative process and Article 368 lays down merely
the 'procedure' for amendment of Constitution. An amendment is a 'law' within the
meaning of Article 13(2) and therefore, if it violates any of the fundamental rights it
may be declared void.
In answer to the question as to whether there would be any way to change the
structure of Indian Constitution or abridge the fundamental rights, J. Hidayatullah
referring to the amending process under the French and Japanese Constitutions,
explained that Parliament could amend Art.368 to convoke another or new
Constituent Assembly. That Assembly ndght be able to abridge or take away the
fundamental rights, if desired. ______________________________________ ___
1“. “An’ending power has been exclusively assigned to the Union Parliament
except when the amendment involves amendment of the federal provisions .
Discuss. VAS~92]
As to the Constitution (1st Amendment) Act, 1951, the Constitution (4th
Amendment) Act, 1955 and the Constitution (17th Amendment) Act, 1964, the
majority held that these amendments abridged the scope of fundamental rights. But
they took recourse to the “doctrine of prospective over ruling” and upheld the
validity of these amendments.
The Court said that it was indisputable that the court could overrule its earlier
decisions. Also, there would not be any valid reason as to why the court should not
restrict its ruling to the future. The decision in this case, thus, would not invalidate
the amendments made so far to the fundamental rights (a large body of legislation
had been enacted bringing about agrarian reform in the country, pursuant to these
amendments). But in future, Parliament would, the court laid down, have no power
to abridge any of the fundamental rights.
134 CONSTITUTIONAL LAW (Part-I)

(ID) 24th Amendment, 1971 - In order to remove difficulties created by the decision
in Golak Nath's case, Parliament enacted this Act. It not only restored the amending
power of Parliament but extended its scope by adding the words in Article 368, "to
amend by way of the addition or variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this Article.” A new
clause added to Article 13 which provides that "nothing in this Article shall apply to
any amendment of this Constitution made under Article 368."
Thus the validity of a Constitution Amendment Act shall not be open to
question on the ground that it takes away or affects a fundamental right. The 24th
Amendment has been held to be valid in Keshavanand's case (though subject to
some qualifications).
(IV) Keshavanand Bharati's case and theory of Basic Structure
Keshavanand Bharati v State of Kerela12
(AIR 1973 SC1461)
In this case, also known as 'Fundamental Rights case', the question involved
was as to what was the extent of the amending power conferred by Article 368 ?
A special bench of 13 judges was constituted to hear the case (the case was
heard for 5 months and the court gave the longest judgement running into 595
pages). The views of Majority (7 judges - Sikri C.J., Shelat, Hegde, Grover,
Jagmohan Reddy, Mukheijea, J.J.; Khanna J. took a middle path and tilted the
balance in forming the majority) could be summarised as follows -

12 Is the power of amendment implicit in the Constitution of India and is it wide enough
to replace the present Constitution by a new one without the need of revolution or
referendum ? Discuss by making reference to Keshavananda Bharati case doctrine.
- [I.A.S.-9J]
AMENDMENT OF CONSTITUTION 135

(I) The Golak Nath's case was overruled and the majority held that Article 368
even before 24th Amendment contained the power as well as procedure of
amendment. The 24th Amendment merely made explicit what was implicit
in the unamended Article 368-A. Hence, limitations upon the amending
power must be found from Article 368 itself.
(ii) The Parliament has wide powers of amending the Constitution and it
extends to all the Articles, but amending power is not unlimited and does
not include the power to destroy or abrogate the 'basic feature' or
'framework' of Constitution. There are implied or inherent limitations on
the power of amendment under Article 3b8. Withm these limits Parliament
can amend every Article of Constitution.
(iii) Whether there are implied limitations on the amending power or not would
depend upon the interpretation of word 'amendment'. Khanna J., said that
the word 'amendment' postulated that the old Constitution must survive
without loss of identity and must be retained though in the amended form
and, thus, the power does not include the power to abrogate the basic
structure
Sikri, C.J. said that the word "amendment" must derive its colour from Article
368 and rest of constitutional provisions. Reading the Preamble, the fundamental
importance of freedom of individual, the importance of Directive Principles, and
various other provisions, a conclusion emerges that it was not the intention of
Constitution makers to use the word "amendment" in the widest sense. The
expression "amendment of Constitution" in Article 168 means any change in any of
the provisions of Constitution within the broad contours of Preamble and the
Constitution to carry out the objectives in Preamble and Directive Principles. Thus it
would mean that while fundamental rights cannot be abrogated, reasonable
abridgements of fundamental rights can be effected in the public, interest.
(iv) 'Basic Structure' - According to Sikri, C.J., the ‘basic structure’ was built
on the basic foundation i.e. the freedom and dignity of the individual; the
basic structure of the Constitution consists of following features -
(a) Supremacy of Constitution,
(b) Republican and Democratic form of Government, and sovereignty of
country,
(c) Secular and federal character of Constitution, and
(d) Separation of powers between Legislature. Executive and Judiciary.
Shelat and Grover, J.J., also included the 'fundamental rights' and ‘Directive
Principles’ in the basic structure.
The Minority View - The remaining 6 judges (Ray, Palekar, Mathew, Beg, Divedi and
Chandraehud) held that there are no limitations, express or implied, on the amending
power. The word "amendment" did not include the power to completely abrogating
the Constitution at one stroke, it was, however, wide enough to erode the Constitution
completely step by step so as to replace it by another Constitution. Thus, fundamental
rights can be abrogated.
136 CONSTITUTIONAL LAW (Part-I)

The 'doctrine of basic structure' has been criticised, on the ground that it lays
down a vague and uncertain test. However, the court observed that there are many
concepts of law which cannot be defined precisely, but they do exist and play very
important part in our law, for example, natural justice and negligence. The Chief
Justice said that the argument that because something cannot be cut and dried or
nicely weighed or measured and therefore does not exist is fallacious. If the historical
background, the Preamble, the entire scheme of Constitution and the relevant
provisions thereof including Article 368 are kept in mind, there can be no difficulty
in determining what are basic elements of the basic structure of Constitution. The
doctrine of basic structure will act as a safety-valve against the arbitrary use of
amending power.
(V) Application of the Doctrine of Basic Structure
Indira Gandhi v Raj Narain
(AIR 1975 SC 2299)
In this case (popularly known as Election case), an amendment (39th, 1975)
was passed by Parliament for validating with retrospective effect the election of
Prime Minister Mrs. Gandhi, which was declared invalid by the Allahabad High
Court on the ground of having committed corrupt practice. The mrw Article 329-A
provided that the election of a person who hold the office of a Prime Minister, can be
challenged only before such a body or forum as may be established by Parliament by
law, and not in a court.
The Supreme Court invalidated the said Article on the ground that it was
beyond the amending power of Parliament as it destroyed the 'basic feature' of
Constitution. It violated the free and fair elections which was an essential postulate of
democracy which in turn was a part of basic structure of Constitution (Khanna J.).
Chandraehud J. said that Article was outright negation of right of equality conferred
by Art. 14, a right which is a basic postulate of our Constitution. He held that these
provisions were arbitrary and were calculated to destroy the Rule of law.
Itie Supreme Court added the following features as 'basic features' to the list of
basic features laid down in Keshvanand’s case:
(i) Rule of Law.
(ii) Judicial review
(iii) Democracy, which implies free and fair elections.
(iv) Jurisdiction of Supreme Court under Article 32.
The 'Rule of Law' means judicial review, principles which are predictable or
recognised, exclusion of arbitrariness in official action and equality under Article 14.
Ray, C.J. held that since the validation of Prime Minister's election was not by
applying any law, therefore if offends the rule of law. Beg, J. observed that the
jurisdiction of Supreme Court to try a case on merits cannot be taken away without
injury to the basic postulates of rule of law and of justice within a politically
democratic constitutional structure.
(VI) 42nd Amendment and Doctrine of Basic Structure
AMENDMENT OF CONSTITUTION 137

Minerva Mills Ltd. v Union of India

(AIR 1980 SC 1789)
In this case, the constitutional validity of the Sec. 4 and Sec. 55 of 42nd
Amendment, 1976, which effected changes in the Article 31-C and Article 368
respectively, was challenged by the petitioner Minerva Mills Ltd.
(a) Sec. 55 of 42nd Amendment added two new clauses, Clauses (4) and
(5) to Article 368 : Cl. (4) provided that "no amendment of Constitution
(including the provisions of Part III) made under Article 368 (whether
before or after the commencement of 42nd Amendment), shall be called in
question in any court on any ground. Cl. (5) declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by
way of addition, variation or repeal the provisions of Constitution under
this Article. Thus, it would mean that even the "basic feature" of
Constitution could be amended.
The above amendment was supported by Union on the ground that it put an
end to any controversy as to which is supreme, Parliament or the Supreme Court.
Clause (4) asserted the supremacy of Parliament. It was urged that Parliament
represents the will of people and if people desire to amend Constitution through
Parliament, there can be no limitations whatsoever on the exercise of this power. The
theory of 'basic structure' as invented by Supreme Court is vague and will create
difficulties. The amendment was intended to refitted this situation. It was argued that
the amending body under Article 368 has the full constituent power. In other words,
the Parliament acts in the same capacity as the Constituent Assembly when
exercising the power of amendment under Article 368.
The Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of
Article 368 on the ground that these clauses destroyed the essential feature of basic
structure of the Constitution. The Court held that the following are the basic features
of Constitution:
(i) Limited power of Parliament to amend the Constitution.
(ii) Harmony and balance between fundamental rights and directive principles
(iii) Fundamental rights in certain cases.
(iv) Power of judicial review in certain cases.
Limited amending power is a basic structure of the Constitution. Since these
clauses removed all limitations on the amending power and thereby conferred an
unlimited amending power, it was destructive of the basic feature of the Constitution.
The judgement thus makes it clear that it is the Constitution that is supreme in
India, and not the Parliament. Parliament is a creature of the Constitution and derives
its power from Constitution, including the power to amend under Article 368. Laws
passed by Parliament can be declared ultra vires the Constitution. There is a clear
distinction between the ordinary legislative power and the constituent power
(amending pow'er) of Parliament. The amending power, therefore, cannot be
exercised in such a way so as to subvert or abrogate the Constitution. The court,
however, held that doctrine of basic structure is to be applied only in judging the
138 CONSTITUTIONAL LAW (Part-I)

validity of amendments to the Constitution and it does not apply for judging the
validity of ordinary laws made by legislatures.
(It is submitted that an amendment made by Parliament is not an amendment
made by people, because the representatives of people do not always reflect the will
of people.)
(b) Sec. 4 of 42nd Amendment amended Article 3J-C, which further widened
the scope of Article 31 -C so as to cover all directive principles. It
substituted for the words "directives contained in Article 39(b) and
(c) " the following words "all or any of the principles laid down in Part
IV".
Article 31 C, as amended reads thus : “Notw ithstanding anything contained in
Article 13, no law giving effect to all or any of principles laid down in Part IV shall
be deemed to be void on ground that it is inconsistent with, or takes away, or
abridges any of the rights conferred by Articles 14,19 and 31, and no law shall be
called in question in any court on the ground that it does not give cffect to such State
policy towards securing such principles.”
While the 25th Amendment, 1971 earlier gave primacy to directives contained in
Article 39(b) and (c) only over the fundamental rights under Articles •4, 19 and 31, the
42nd Amendment gave precedence to all directive principles oxer fundamental rights
under Article 14,19 and 31.
But, the Supreme Court by 4:1 majority held Article 31-C (amended)
unoons’itutional on the ground that it destroys the "basic features" of Constitution by
totally excluding from challenge to any laws giving effect to directive
AMENDMENT OF CONSTITUTION 13g

principles, even if they are inconsistent with rights under Article 14 and 19.
The Indian Constitution is founded on the bed-rock of the balance betweeh Part III
(Fundamental Rights) and Part IV (Directive Principles). To give 'absolute'
supremacy or primacy to one over the other is to disturb the harmony of the
Constitution. The harmony and balance between the two is an essential feature of the
basic structure of Constitution. The Directive Principles prescribes the goal to be
attained and the Fundamental Rights lay down the means by which the goal is to be
achieved. The goal set out in Part IV have to be achieved without abrogating the
means provided for by Part III. Thus, there is no conflict between the two, and they
are meant to supplement each other.
The Court, however, held that Article 31-C as originally introduced by 25th
Amendment is constitutionally valid.
(VII) Article 31-C and Sanjcev Coke Mfg. Co. case
Article 31-C is meant for saving of certain laws for giving effect to certain
directive principles. This Article was amended by 25th Amendment,
1971, which gave primacy to directive principles in Article 39 (b) and (c) over
fundamental rights under Articles 14 and 19, as such laws for giving effect to
directives cannot be challenged on the ground that they infringe Article 14 and 19. It
further provided that any law which contained a declaration that it was put on statute
book for giving effect to such policy could not be called into question in any court
that the new law did not give effect to such policy. Thus, judicial review barred
completely.
In Keshavananda's case, the court held the first part of clause valid, but held
that court has the power of judicial review. The question whether an Act is intended
to secure the objects contained in Article 39 (b) or (c) does not depend upon the
declaration by the legislature, but depends on its contents. In order to ascertain this,
the court has to examine the legislation as a whole (similarly held in a recent case -
State of Maharashtra v Basantibai (1986) 2 SCC 516). In Woman Rao v Union of
India (AIR 1981 SC 271), the court held that Article 31-C as it stood prior to 42nd
Amendment is valid.
The 42 nd Amendment gave primacy to all Directive Principles over
Fundamental Rights, by amending Article 31-C. In Minerva Mills' case, the court
held it invalid.

Sanjeev Coke Mfg. Co. v Bharat Coking Coal Ltd.

(AIR 1983 SC 239)
In this case, the validity of Coking Coal Mines (Nationalisation) Act,
1972, which provided for nationalisation of Coking Coal Mines belonging to
petitioners was challenged on the ground that it was violative of Article 14, and since
the need for nationalisation was not felt even after so many years it could not be done
under Article 31-C now.
The Court rejected these contentions and held that Act was valid under Article
31-C notwithstanding that it violated Article 14. Where Article 31-C comes in, Article
14 goes out. The court added that partial and selective nationalisation was
179 CONSTITUTIONAL LAW (Part-I)

permissible and the extent of nationalisation was a matter of legislative judgement

beyond judicial review.
The court expressed doubts on the validity of decision in Minerva Mills' case.
A 5-judge bench held that since the amended Article 31-C was not directly at issue
but was only an academic issue in Minerva Mills' case, therefore the determination of
that question in that case was uncalled for, and since validity of Article 31-C was
upheld in Keshavanand's case, the dialectics, logic and rationali involved in
upholding should lead to conclusion that Article 31-C with its extended protection
(made by 42nd Amendment) is also constitutionally valid. The directives in Article
39(b) and (c) are not drastically different from the other principles in Part IV.
It is submitted that views taken in this case does not appear to be correct.
Article 31-C in its amended form was not in existence when its validity was upheld in
Keshavanand's case and so Article 31-C in its amended form cannot be upheld by
said case ruling until Minerva Mills' case decision is overruled. The Sec. 4 of 42nd
Amendment will continue to be unconstitutional despite doubts expressed in Sanjeev
Cokes' case. In S.P.Sampath Kumar v UOI (AIR 1987 SC 386), the court without
taking note of the observations in Sanjeev Coke s case relied exclusively on Minerva
Mills ’ case.

SCOPE OF AMENDING POWER OF PARLIAMENT13

Article 368 as it stands today
The Constitution, though expressly confers amending power on the
Parliament, but it is the Supreme Court, which is to finally interpret the scope of such
power and to spell out the limitations, if any, on such amending power.
At- present, any part of the Constitution canjbe amended under Article 368, the
only limitations being the procedural limitations (as in Article 368 itself) and the
substantive limitations ('basic features').
(A) Procedural Limitation - The power conferred by Art.368 is subject to the
procedure laid down in the Article [Art.368(l)j. The court would be
competent to strike down an Amendment Act which did not comply with
the procedural requirements of Art.368, such as - (i) That it has not been
passed by the special majority provided in Art. 368, (ii) That it has not been
ratified by the Legislatures of the specified number of States.

13 Discuss the limits of the amending power of the Parliament. [I.A S.-93] Write a short
note on : Scope of amending power of Parliament under Art. 368. [C.LC.-96]
AMENDMENT OF CONSTITUTION 141

In Kihota Hollohon v Zachillu (AIR 1993 SC 412), Para 7 of the Tenth

Schedule to the Constitution inserted by the Constitution (52nd Amendment) Act,
1985, excluding the jurisdiction of all courts including the Supreme Court under Art.
136 and the High Courts under Arts. 226 and 227, on the question of disqualification
on the ground of defection, was struck down as unconstitutional since it was not
enacted complying with the requirement of Proviso to Art.368 (2) which required
ratification of the amendment by at least half of the State Legislatures.
It may be noted that while exercising the power under Art 368, Parliament
would not be subject to the limitations which curb its legislative power to make laws
under Arts. 245-246, because the amending power conferred by Art.368 is
‘constituent power' (,Sasanka v UOI AIR 1981 SC 522).
(B) Substantive Limitation - In Keshavanand 's case, the Supreme Court, for
the first time, exercised the power of judicial review on the following
substantive grounds -
(i) That, by virtue of the power to ‘amend’ conferred by Art.368,
Parliament could not alter the ‘basic structure’ or ‘fundamental
features’ of the Constitution because the word ‘amend’ implied that
even after amendment, by way of addition, alteration or repeal of
some of its provisions, the identity of the original Constitution must
remain.
(ii) The power to amend is vested by Art.368 in Parliament (except where
ratification by State Legislatures is required) Hence, Parliament
cannot, directly or indirectly, abdicate or delegate that power to some
other body; if it does, the court would strike down that Constitution
Amendment Act as invalid.
In Keshavanand's case, that latter part of Art. 31C was struck down by the
majority, on the ground that it not only authorised the legislature to make a law
violative of Arts. 14,19 and 31, but also conferred on it the pow er to make it
immune from attack on that ground by itself inserting in that law a declaration. This
constituted a delegation of an effective power to amend the Constitution to the
Legislature.
Doctrine of Basic Features as it stands today14
After the re-affirmation and extension of the applicability of the doctrine of
basic structure or features in the Minerva Mills case, it is now evident that so long as
the decision in Keshvanand’s case is not overturned by another Full Bench of the
Supreme Court (which may come only as an extraordinaiy event), any amendment of
the Constitution is liable to be interfered with by the court on the ground that it affects
one or other of the basic features of the Constitution.

14 “The doctrine of basic structure has established judicial superraacy in the area of
constitutional amendment”. Examine. [M.S.-95]
142 CONSTITUTIONAL LAW (Part-I)

It may be noted that since the doctrine of basic features dates from the decision
in Keshvananda on 24-4-1973, it is only Amendment Acts passed subsequent to that
date which would be liable to attack on the basis of the doctrine of basic features The
Constitution Bench in Woman v UOI (AIR 1981 SC 271) refused to give
retrospective effect to the doctrine of basic features.
One posl-Keshavananda development of the doctrine is that the court has
declined to foreclose the list of the basic features as suggested by different judges in
the Keshavananda case. In Rajnarain’s case, it has been observed that the claim of
any particular feature of the Constitution to be a 'basic feature’ would be determined
by the court in each case that comes before it. So far, quite a multitude of features
have been acknowledged as ‘basic' by different judges, individually, in different
cases, though there is no consensus as regards each of them, in particular (See, the
list under the Questions Section).
Sometimes, an amendment may indirectly affect a basic feature of the
Constitution while promoting or protecting another basic feature of the Constitution.
The following such amendments have been held not to destroy or damage the basic
structure of the Constitution :
(i) The insertion of Art. 31A by the Constitution (1st Amendment) Act, 1951
(relating to agrarian reforms), because, instead of damaging the principle of
equality, these amendments strengthen the basic feature., by removing
inequalities in the matter of agricultural holdings (Woman v UOI AIR 1981
SC 271).
(ii) Even though Parliamentary democracy is a basic feature of the
Constitution, the rights and immunities provided to the members of
Parliament under Art. 105(2) cannot be elevated into the status of
fundamental rights or basic features so as to invalidate a Constitutional
Amendment (by inserting the Xth Sch.) for the purpose of condemriing
defection (Kihota v Zachilhu AIR 1993 SC 412).
(iii) The amendment of Art. 334 by the 45th Amendment Act, 1978, extending
the reservation for SCs, STs, and Anglo-Indians in the Legislatures
(Vicihtra v UOI AIR 1982 Raj'297).
(iv) The insertion of Art. 323A (by the 42nd Amendment Act, 1976) which
takes away the jurisdiction of the High Courts and the Civil Courts to
decide ‘service matters’, because that jurisdiction of the Courts is replaced
by that of an Administrative Tribunal which is “a complete substitute of the
High Court” being competent to decide any question and grant any relief
which the High Court could (Sampat v UOI AIR 1987 SC 386).
The addendum of Sampat to the doctrine of basic features is that the basic
feature of‘judicial review’ is not violated by an amendment of the Constitution
which, instead of totally excluding judicial review, substitutes "an effective
alternative institutional mechanism or authority for judicial review", i.e., provides for
the setting up of a Tribunal with similar powers as that of the courts [D.D. Basu,
Shorter Constitution of India, 12th Ed.].
AMENDMENT OF CONSTITUTION 143

(v) When a fundamental right itself is taken away by an amendment of the

Constitution, the Amendment Act cannot be challenged on the ground that
it has abridged judicial i>,view - a basic feature of the Constitution
(Sankari Prasad v UOI AIR 1951 SC 458).
Vagueness and Uncertainty4a
The doctrine'of basic structure is criticised on various grounds, for instance
that it lays down a vague and uncertain test. Can anything be called ‘basic’ which is
not prone to any definite definition and even the creator of which is not sure about its
contour? Further, the basic rational behind an amending provision in any
Constitution is to provide an opportunity to the future generation to make suitable
adjustments in it and thus, bypass the fear of revolt /constitutional breakdown. If this
is the position then how caa it oe assumed that certain provisions (i.e. basic features)
of the Constitution would never require amendment? For instance, in recent times, in
India, there is a talk about the ‘Parliamentary to Presidential system’, because of the
decline in standards of “Parliamentary' democracy” (a basic feature). The question
thus arises, if a basic feature such as the Parliamentary system of Government may
be replaced by the Presidential system ?
Further, what would happen if two or more basic features come in conflict?
Recently in Turkey, ‘secularism’ and ‘democracy’ came in conflict. The conflict was
resolved by banning a fundamentalist party even though that enjoyed the support of
more than 3/4th of the population (Legal Spectrum, May 1998).
Nevertheless, the doctrine of basic features will act as a safety-valve against
the arbitrary use of the amending power by Parliament (Sikri, C.J. in Keshvananda
case).
Replacement of the Existing Constitution
In India, in recent times, the case for y constitutional review has become
unassailable. Even after 78 amendments our Constitution has failed to deliver. There
have been more than a hundred occasions when the constitutional machinery has
been declared to have beer failed in one State or the other. The basic problems of
poverty, illiteracy, ;nemployment, etc., still remain; criminalisation, casteism,
communalism, etc., have become more acute problems

4a. “The amending power 3f Parliament :,;iould not be subjected to the vague and uncertain
doctrine of basic structure Comment. [I.A.S.-97]
than ever before. Our Constitution in.. the words of Jawaharlal Nehru was purloined
by lawyers. It became their paradise and failed to fulfil the hopes, aspirations and
objectives of the founding fathers.
Review of the Constitution would mean a holistic, integrated approach to see
what, if any, amendments are necessary in the light of nearly 50 years’ experience of
working the Constitution. A most intriguing legal tangle has emerged on the question
whether the entire Constitution can be replaced by resorting to the procedure
prescribed by Art.368. In Keshvananda case, the majority' held that the word
144 CONSTITUTIONAL LAW (Part-I)

‘amend’ implied that “while any piecemeal change may be made, the old
Constitution cannot be totally destroyed or so radically changed as to lose its
‘identity’; the basic features cannot be amended”.
Three modes have been suggested to replace the existing Constitution or
amend the basic features : (a) Revolution (b) Parliament converting itself into a
Constituent Assembly (c) Referendum. The ‘Revolution’ is a very radical measure.
In fact, it was to avoid revolution that a provision for amendment is included in a
written Constitution (Khanna J. in Keshvananda case).
A ‘Constituent Assembly’ could be set up by amending Art.368 itself. But the
majority in Minerva Mills case held that the limited nature of the amending power in
Art.368 is itself one of the basic features of the existing Constitution so that
Parliament cannot enlarge its own powers by making itself a new Constituent
Assembly. Any such amendment of Art.368 or ordinary law made by Parliament
would be unconstitutional.
As regards ‘Referendum’, the decision in Minerva Mills case would not stand
in the way, inasmuch as a referendum to the verdict of the people would be no
enlargement of the amending power of Parliament itself. Thus, referendum or public
opinion could be used as a mode of amending the Constitution itself or its basic
features. “It is not the Constitution itself, (rather) the belief that Constitution ought to
be obeyed that is more important” (Kelsen).

FURTHER QUESTIONS
Q.5 Discuss the principles and philosophy underlying the doctrine of ‘basic structure’ as
enunciated in Keshvananda Bharti ’s case. Which features of the Constitution have
been so far been declared^ part of its basic structure by the Supreme Court? ^
[C.L.C.-95 (Dec.y97]
(a) Ar!.356(l) provides for imposition of President’s rule in any State. “If the President,
on receipt of a report from Governor of a State or otherwise is satisfied that a
situation has arisen in which the government of the State cannot be carried on in
accordance with constitutional provisions .....................................................”
The Constitution Amendment Act, 1993 amends the above clause by inserting words
“or is likely to arise” after the words “a situation has arisen”. Cl.(2) of the
Amendment Act further provides that “no Proclamation issued under this Article
shall be called in question in any court on any ground whatsoever’ Discuss the
constitutional validity of the Amendment Act with reference to the ‘basic structure’
doctrine. 1 [C.L.C.-93]
(b) Art. 13(2) says that State shall not make any law which takes away or abridges the
rights conferred by Part III (Fundamental Rights) and any law made in contravention
of it be void. By an Amendment, cl.(5) inserted in Art. 13 : ‘Nothing in this Article
shall apply to any law enacted for giving effect to the Directive Principles of State
Policy’. The Amendment Act further provides that validity of this amendment shall
not be cajled in question in any court on any ground whatsoever Discuss the validity
of the above amendment. [C.L.C.-94]
AMENDMENT OF CONSTITUTION 145

(c) In view of the new economic policy adopted by the Government of India since 1991
which seeks to promote market economy and capitalist path of economic
development, Parliament wants to amend the Constitution so as to delete the word
‘Socialist’ from the Preamble.
As an advocate advise the Union Government on the constitutional validity of the
proposed amendment in the light of the principles laid down in Keshavanenda
Bharati case. [C.L.C.-97]
A.5 Doctrine of Basic Structure
See Chapter 8 in its entirety. Also see below :
In Raghunatharo Ganpathrao v UOI (AIR 1993 SC 1267), it was held that an
amendment which is a change/alteration, is only for the purpose of making the
Constitution more perfect, effective and meaningful. It should not result in
abrogation/destruction of its basic structure or loss of its original entity or character
and render it unworkable.
It may be noted that eveiy integral part of the Constitution is not necessarily an
essential feature of the Constitution. Both are totally distinct and qualitatively
different concepts. Therefore, destroying an integral part of the Constitution did not
amount to destroying the basic structure or framework of the Constitution (Madhav
Rao Scindia v UOI AIR 1971 SC 530, Raghunathrao Ganpathrao case).
Various features held to be part of ‘basic structure’ are :
(1) Supremacy of the Constitution (K. Bharati case).
(2) Republican, and Democratic form of government (free and fair elections)
(K. Bharati case, Indira Gandhi v Raj Narain). Also, Parliamentary system
of Government.
(3) Sovereignty (unity and integrity) of country (K.Bharati case, R.C. Poudyal
v UOI AIR 1993 SC 1804).
(4) Federalism and Securalism (S.R. Bommai case).
(5) Separation of Powers between Legislature, Executive and Judiciary (K.
Bharati case).
(6) Rule of law and Judicial Review [Indira Gandhi v Raj Narain, S.R.
Bommai case, P. Sambhamurthy v State of A.P. AIR 1987 SC 663, L.
Chandra Kumar v UOI AIR 1997 SC 1125],
(7) Independence of judiciary (Supreme Court’s Advocates-on-Record Asscn. v
UOI case AIR 1994 SC 268); Judicial Superintendence - Power of High
Courts over decisions of all courts/tribunals within their respective
jurisdictions (L. Chandra Kumar v UOI AIR 1997 SC 1125); Powers of
the Supreme Court under Arts. 32, 136, 141, 142 (Delhi J.S.A. v State of
Gujarat AIR 1991 SC 2176).
(8) Jurisdiction of Supreme Court under Art.32 (Indira Gandhi's case).
(9) Harmony and balance between Fundamental Rights and Directive
Principles (Minerva Mill’s case). The ‘essence’ of Fundamental Rights
(Woman v UOI AIR 1981 SC 271).
(JO) Fundamental lights in certain cases (Minerva Mill's case); Right to ( ' ' equality
146 CONSTITUTIONAL LAW (Part-I)

(Indira Gandhi v Raj Narain)-, Not every feature of equality, but the quintessence of
equal justice (Raghunathrao's case).
(11) The concept of Social and Economic Justice - to built a welfare State, Part
IV in toto (Bhim v UOI AIR 1981 SC 234).
(12) Limited power of Parliament to amend the Constitution (Minerva Mill’s
case).
(13) Un-amendability of ‘basic structure’ (Minerva Mill’s case, R.C. Poudyal’s
case).
(14) Objectives mentioned in the Preamble to the Constitution (Indira Gandhi’s
case).
(15) Freedom and dignity of the individual (Keshavananda’s case, Bommai
case).
(16) Effective access to justice (Central Coal Fields v Jaiswal Coal Co. AIR
1980 SC 2125).
It may be noted that 'Right to Property’ under Art.300-A is not a basic feature
of the Constitution [Jilubhai Nanbhai v State of Gujarat (1995) Supp.(l) SCC 596],
Decision of the cases in question
(a) Insertion of words ‘ or is likely to arise” poses a great danger to the
Federalism (a basic feature of Constitution). Similarly, judicial review is a
part of the basic structure. Thus, the amendment is invalid on both counts.
(b) Harmony and balance between fundamental rights and directive principles
is part of the basic structure of the Constitution. The
amendment insofar as it gives primacy to directive principles over fundamental
rights is invalid. It may be noted that directives contained in Art. 39(b) and (c)
(relating to nationalisation of resources) have been given precedence over the
fundamental rights (K. Bharati case).
The amendment is invalid on the count of judicial review also.
(c) Objectives mentioned in the Preamble to the Constitution are part of the basic
structure of the Constitution. Thus the amendment seeking to delete the word
‘Socialist’ from the Preamble is constitutionally invalid.
'k'k'k'k'k'k'k
4a. “The principle of repugnancy does not apply in all cases of conflict between a State Law
and a Central Law. The Principle applies only when the above two laws occupy the
same field.” Discuss this observation in the light of the Supreme Court's decisions.
[L.CJl-93/95/96 (supp.)/9T\
State and illustrate the rules regarding repugnancy of statutes in the light of Art. 254 of
the Constitution. \L.C.1-93/94/95/96/97)
4b. The Union Parliament enacts a law on a certain subject matter in the Concurrent List in
the year 1980. State A, in 1981, enacts, with reference to the same subject matter, a
law which is repugnant to the provisions of the existing Union law of 1980, with the
consent of the President of India. In the year 1982, Parliament passes again a statute
repealing the State A’s law of 1981, without enacting substantive provisions on the
same subject matter. Will this repeal be deemed to be effective ? Discuss.
[L.C.I-93/94]
AMENDMENT OF CONSTITUTION 147
C
4 . Professor P.K Tripathi in his article on ihe doctrine of repugnancy states :
‘The doctrine of pith and substance deals with a law by itself to examine
whether it is within the competence of legislature which passed it, the doctrine
of repugnancy examines valid laws to see whether they are capable of co
existing. Thus, validity of a law made by the State must be judged at two
stages”. Critically examine the above statement in the light of the scope of Art.
254 as laid down by the Supreme Court in Hoechst Pharm. Ltd. v State of
Bihar (AIR 1983 SC 1019). [C.LC.-92)
lb. “All obstructions or impediments, whatever shape they take, to the tree tiovv of trade or
non-commercial intercourse offend Art.301 of the Constitution”. Critically examine.
[/.AS. -94]
[Note : Also see Q.2 under the ‘Further Questions' section).