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A K. Jain Constitution 1st Part PDF
A K. Jain Constitution 1st Part PDF
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 Fateh Chand v State of Maharashtra .42
A.K. Gopalan v State of Fertiliser Corporation Kamgar
Madras................ ..; ...................... 57, 112 (Union) v Union of India ............................. 62
A.K. Roy v Union of India ...........................90 Firm Mehtab Majid v State of
A.K. Sabhapathy v State of Kerala ....38 Madras ...................................................... 119
A. S.................. Krishna v State of Madras Francis Corali’s case ................................... 63
31 G.C. Kanungo v State of Orissa ..35, 43 G.K.
Abdul Qader v S.T.O., Hyderabad .............30 Krishnan v State of T.N. 113, 115 Gauri
Additional District Magistrate, Shankar Gaur v State of U.P. ...35
Jabalpur v Shivkant ..................................101 Ghulam Sarwar v UOI ........ ...................... 70
All India Judges Asscn. v U.O.1 ..................66 Golak Nath v State of Punjab ................... 133
Amrit Banaspati Co. v UOI .......................118 Gujarat University v Shri Krishna ............. 26
Andhra Steel Corpn. v C.C.T....................119 Hari Krishna Bhargava v UOI ................... 50
Andhra Sugars Ltd. v State of AP.. 130 Hoechst Pharm Ltd. v State of
Ashbury v Ellis .............................................21 Bihar.................................................38, 55
Associated Tanners v C.T.O......................119 I.N. Saxena v State of M.P. ......................... 44
Atiabari Tea Co. case........... 113, 115, 125 In Re Berubari Union and Exchange
Automobile Transport Ltd. v State of of Enclaves .................................................... 6
Rajasthan ............................. 113, 115, 126 In re under Article 143 ................................ 17
B. Sundaresan v State of Kerala ............. 122 In the matter of Cauvery Water
B.A. Jayaram v Union of India .................116 Disputes Tribunal ..............................43,51
Babulal Parate v State of Bombay... .............5 India Cement v State of AP.. 119, 129
Raijnath v State of Bihar........................ .’*37 Indira Gandhi v Raj Narain ..................... 136
Bandhua Mukti Morcha v Union International Tourism Corp. v State
of India ............... ........................................62 of Haryana .................................... 53, 114
Bangalore Woollen Mills v Corpn. J.K. Jute Mills v State of U.P. ..................... 23
of Bangalore ...............................................123 J.M. Desai v Roshan Kumar ....................... 60
Bejoy Lakshmi Cotton Mill’s case ..............86 Jalan Trading v Mill Mazdoor Sabha.48
Bliim v UOI ................................................146 Janan Prosanna Das Gupta v
Calcutta Gas Co. v State of West Province of W.B ........................................... 90
Bengal ...........................................................25 Jilubhai Nanbhai v State of Gujarat. 146
Central Coal Fields v Jaiswal Joseph v State of Kerala .............................. 70
Coal Co .......................................................146 Jumma Khan v State of U.P....................... .93
Clyde Engg. Company Ltd. v K.C.G. Naravan Deo v State of
Cowbum .......................................................39 Orissa ....... .................................................. 48
Croft v Dunphy ............................................21 K.M. Nanavati v State of Bihar..45, 92 K.T.
D.C. Wadhawa v State of Bihar ..................90 Moopil Nair v State of Kerala ..49
Daryao v State of U P. .................................69 Kalyani Stores v State of Orissa ............... 120
Deep Chand v State of U.P. .........................36 Kan nan Devan Hill Produce Co-.
Dehradun Quarrying case ...........................65 Ltd. v State of Kerala ................................ ..42
Delhi J.S.A. v State of Gujarat ..................146 Kanti Lai v H.C. Patel ................................. 30
Dinesh Chandra v Chaudhury Karamjeet Singh v UOI ............................ 6 8
Charan Singh ...............................................82 Kartar Singh v State of Punjab....32, 50
Dr. B.L. Wadhera v UOI .............................66 Kehar Singh , UOI ..................................... 9 2
Dr. Upendra Baxi v State of Keshavanand Bharati v State of
Uttar Pradesh ...............................................60 Kerela ............................................. ........... 134
Dy. Collector v Ibrahim & Co...................117 Khyerbari Tea Co. v State of AM am
Electronics Corpn., India v C.I.T. ..............21 ................................................ 21, 123, 130
Express Hotels v State of Gujarat... 114
[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]
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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
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
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
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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
(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
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.
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
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.
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
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).
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.
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
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.
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.
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.
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.
'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.
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.
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.]
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.
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.
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'
(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 :
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
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?
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
/
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
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
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
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^.
party, etc.
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
.
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
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
(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
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)
(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.
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)
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)
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)
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
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)
(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
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.
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
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
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).