Professional Documents
Culture Documents
Constitution of India
• The Constitution relates to the governance of the country & this governance is
carried out through institutions.
• The institutions are recognized & their places are defined under the rules of the
Constitution.
• Governance involves 3 functions
➢ Making of laws.
➢ Execution of laws.
➢ Interpretation of laws & settlement of disputes.
• It is not practically feasible to include everything related to the governance of the
country in the Constitution, but those that are included in the Constitution acquire
supremacy.
• It is not enough just simply to know the Constitution.
• India is the only country the Constitution of which bothers to mention civil servants.
• Ordinary laws like strict laws can be amended but the constitutional law requires
amendment with a large majority.
• The institutions are constituted according to & their powers & functions are
contained in the Constitution.
• Judges Inquiry Act contains the rules to look into the conduct of judges.
• There might be problems of interpretation of the Constitution.
• It is possible that the language of the Constitution can’ t be applied exactly to
situations which could not have been anticipated by the Constitution-makers at the
time of drafting the Constitution.
• The rules laid down by the Constitution are flexible & require interpretation.
➢ However, there are certain rules which it is inadvisable to lay down.
• Ideas can be inferred by taking into account detailed provisions of the Constitution.
➢ It is not necessary that every idea should be written.
➢ Certain ideas just form the structure of the Constitution & can be gathered
when one reads the Constitution.
2
JUDICIAL REVIEW
• The question that arises is whether the rules of the Constitution can be enforced by
the judiciary.
• In the US, in the case of Marlbury v Madison, it was held that the State shall agree
to be judged by the judiciary.
➢ This means that political rulers should agree to submit their laws to judicial
examination.
• The idea of judicial review is based on the belief that the rules of the Constitution
are, by & large, rules of law.
• The limitations on the power of judicial review are
➢ The judiciary has to judge the validity of a law on pre-existing norms &
can’ t formulate a norm merely in order to invalidate the particular law
whose constitutional validity has been challenged.
➢ The judges can decide only matters of law & not matters of policy.
CONSTITUTIONALISM
1
Phrase like ‘ Subject to the provisions of this Constitution’ in Article 245 and ‘ in accordance with this
Constitution’ in Article 53 shows limitation on the power.
3
• The external limitations are those that are outside the governmental hierarchy.
• Nowadays, the term constitutionalism is confined only to external limitations.
Note: Julius Stone has also discussed some aspects of Power and mentioned that ‘Law
is Power’. He has further mentioned the development of power structure i.e. Personalized
power structure, de-personalized power structure and trans-personalized power structure.
RULE OF LAW
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range
of government in the sense of excluding arbitrary official action in any sphere. 'Rule of
law' is an expression to giver reality to something which is not readily expressible. That is
why Sir Ivor Jennings said that it is an unruly horse.
Rule of law is based upon the liberty of the individual and has as its object, the harmonizing
of the opposing notions of individual liberty and public order. The notion of justice
maintains the balance between the two; and justice has a variable content.
1. Absence of arbitrary power, equality before the law or the equal subjection of all
classes to the ordinary law of the land administered by ordinary law courts and that
the Constitution is not the source but the consequence of the rights of individuals,
as defined and enforced by the courts.
2. The second meaning grew out of Dicey's unsound dislike of the French Droit
Administratif which he regarded "as a misfortune inflicted upon the benighted folk
across the Channel". Indeed, so great was his influence on the thought of the day
4
that as recently as in 1935 Lord Hewart, the Lord Chief Justice of England,
dismissed the term "administrative law" as continental jargon".
3. The third meaning is hardly apposite in the context of our written Constitution for,
in India, the Constitution is the source of all rights and obligations. We may not
therefore rely wholly on Dicey's exposition of the rule of law but ever since the
second world war, the rule has come to acquire a positive content in all democratic
countries. The International Commission of Jurists, which has a consultative status
under the United Nations, held its Congress in Delhi in 1959 where lawyers, judges
and law teachers representing fifty-three countries affirmed that the rule of law is a
dynamic concept which should be employed to safeguard and advance the political
and civil rights of the individual in a free society. One of the committees of that
Congress emphasised that no law should subject any individual to discriminatory
treatment. These principles must vary from country to country depending upon the
provisions of its Constitution and indeed upon whether there exists a written
Constitution. As it has been said in a lighter vein, to show the supremacy of the
Parliament, the charm of the English Constitution is that "it docs not exist".
As Culp Davis said, where the law ends, discretion begins and the exercise of
discretion may mean beneficence or tyranny, justice or injustice, either reasonableness or
arbitrariness. There has been no government or legal system in world history which did not
involve both rules and discretion. It is impossible to find a government of laws alone and
not of men in the sense of eliminating all discretionary powers. All governments are
governments of laws and of men. Jerome Frank has said:
This much we can surely say: For Aristotle, from whom Harrington derived the notion of
a government of laws and not of men, that notion was not expressive of hostility to what
today we call administrative discretion. Nor did it have such a meaning for Harrington".
Another definition of rule of law has been given by Friedrich A. Hayek in his books: "Road
of Serfdom" and "Constitution of Liberty". It is much the same as that propounded by the
Note: this is why all the retrospective law is bad.When judiciary is laying down some
principle it must apply it from the next case. Laws should apply prospectively and not
retrospectively. A person should never be made to suffer in law (criminal or civil) for an
act which was not unlawful when he committed it. Retrospective legislation destroys the
certainty of law, is arbitrary and is vindictive, (being invariably directed against
identifiable persons or groups). Such laws undermine many characteristics of the rule of
law.
This Court said in Jaisinghani v. Union of India MANU/SC/0361/1967 that the rule
of law from one point of view means that decisions should be made by the application of
known principles and rules, and, in general, such decisions should be predictable and the
citizen should know where he is.
This exposition of the rule of law is only the aspiration for an ideal and it is not based on
any down-to-earth analysis of practical problems with which a modern Government is
confronted. In the world of action, this ideal cannot be worked out and that is the reason
why this exposition has been rejected by all practical men.
If it is contrary to the rule of law that discretionary authority should be given to government
departments or public officers, then there is no rule of law in any modern State. A judge
who passes a sentence has no other guidance except a statute which says that the person
may be sentenced to imprisonment for a term which may extend to, say, a period of ten
years. He must exercise considerable discretion. The High Courts and the Supreme Court
overrule their precedents. What previously announced rules guide them in laying down the
new precedents? A court of law decides a case of first impression; no statute governs, no
precedent is applicable. It is precisely because a judge cannot find a previously announced
rule that he becomes a legislator to a limited extent. All these would show that it is
impossible to enunciate the rule of law which has as its basis that no decision can be made
unless there is a certain rule to govern the decision.
Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule
of law and that concept implies equality before the law or equal subjection of all classes
to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one
must find specific provisions in the Constitution embodying the constituent elements of the
concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To
be a basic structure, it must be a terrestrial concept having its habitat within the four corners
of the constitution. The provisions of the Constitution were enacted with a view to ensure
the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the
meaning and the constituent elements of the concept must be gathered from the enacting
provisions of the Constitution. The equality aspect of the rule of law and of democratic
republicanism is provided in Article 14. May be, the other articles referred to do the same
duty.
Note: The judgment of the Supreme Court in Chiranjit Lal Chaudhri v. Union of India
that “ a single individual may be treated as a class” is the violation of Constitution. Our
Constitution exists and must continue to exist. It guarantees equality before law and the
6
equal protection of laws to everyone. The denial of such equality, as modified by the
judicially evolved theory of classification, is the very negation of rule of law.
Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the equal
protection clause of the Fourteenth Amendment to the American Federal Constitution
Bashshar Nath v, C.T.T., MANU/SC/0064/1958.. In State of Bengal v. Anwar Ali Sarkar
MANU/SC/0033/1952., Patanjali Sastri, C.J. observed that the first part of the article which
has been adopted from the Irish Constitution, is a declaration of equality of the civil rights
of all persons within the territories of India and thus enshrines what American judges
regard as the "basic principle of republicanism" cf. Ward. Flood, 17 Am Rep 405. and that
the second part which is a corollary of the first is based on the last clause of the first section
of the Fourteenth Amendment of the American Constitution. So, the concept of equality
which is basic to rule of law and that which is regarded as the most fundamental postulate
of republicanism are both embodied in Article 14. If, according to the majority in Bharati's
case (supra), Article 14 does not pertain to basic structure of the Constitution, which is the
other principle of equality incorporated in the Constitution which can be a basic structure
of the Constitution or an essential feature of democracy or rule of law?
Clauses {4} and (5) of Article 329A were arbitrary and was calculated to damage or destroy
the rule of law. Imperfections of language hinder a precise definition of the rule of law as
of the .definition of 'law* itself. And the Constitutional Law of 1975 has undergone many
changes since A.V. Dicey, the great expounder of the rule of law, delivered his lectures as
Vinerian Professor of English Law at Oxford, which were published in 1885 under the title)
"Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be
said with reasonable certainty that the rule of law means that the exercise of powers of
government shall be conditioned by law and that subject to the exceptions to the doctrine
of equality, no one shall be exposed to the arbitrary will of the Government.
This is a valuable work that fills the need for a clearly articulated introduction to this now
widely praised, but often poorly understood, political ideal. Remarkably comprehensive
for such a short work, the contributions of such figures as Plato, Cicero, Locke,
Montesquieu, Madison and Hamilton to the development of the concept of the rule of law,
as well as the refinements made by recent and current thinkers like Joseph Raz and Ronald
Dworkin, are explicated within a well-constructed framework of the historical, economic,
and political forces that have shaped the concept. Tamanaha’ s own evaluation and
conclusions about the rule of law are balanced, yet he does not hesitate to expand our
understanding of the value and shortcomings of the rule of law, especially when applied to
non-western cultures and to the international arena.
Viewing it as a product of western political and legal thought, Tamanaha offers a concise
examination first of how the rule of law emerged from Greek and Roman roots and
7
survived as an inchoate concept during the medieval period. He then examines the core
set of meanings that became associated with it as a component of liberalism during the
Enlightenment, as well as the various critiques that have more recently been applied against
it, ranging from nineteenth century conservatives (Dicey, Hayek) to twentieth century
American realists and critical legal scholars. From this historical review, the author derives
three main themes that inform our understanding of the rule of law.
The first (and broadest) theme is government limited by law. This focuses not on
individual liberty, but on restraint of government tyranny, and was the dominant version
(preceding the idea of individual liberty) until the advent of liberalism, when the focus
shifted to [*498] formal legality. It means first that government officials must abide by the
currently valid positive law, and second there are restraints on their law-making power
(how they can change the law); imposed by natural law, divine law, customary law, or
more recently human/civil rights.
This restraint in the first sense came in premodern times from affirmation by the monarch
that the law was binding (though not always voluntarily), such as the oath upon taking
office, the Magna Carta, a common understanding (such as from German customary law),
and the routine conduct of officials. Church leaders, merchants, aristocrats, and others
usually cited breaches of law to justify their resistance to arbitrary government actions,
which usually took political (or theological) form, since there were few legal remedies for
violations of law by the sovereign. But it is possible to apply legal sanctions against the
sovereign for violations of the positive law; this usually requires an independent judiciary
capable of holding the other parts of government accountable on legal grounds, and whose
decisions are respected.
Restraint of government tyranny in the second sense is more ambitious. In Islam the
Shari’ a may serve this purpose, but in modern times there are tensions even in the Muslim
world that result from modernity and pluralism. Ultimately the success of this theme of
the rule of law depends on a pervasive belief in it by the people and by government
officials. While the role of written constitutions is considered at various points in the book,
here the author might have usefully discussed the concept of constitutionalism and its close
relationship to the rule of law.
The second theme is formal legality: public, prospective, stable, general laws equally
applicable with a fair hearing within a judicial process. This is the dominant theme within
liberalism and capitalism, and there is a positive correlation between formal legality and
economic development. It emphasizes predictability, deemphasizes the content of the law,
is not incompatible with authoritarian regimes, and foregoes requirements of distributive
equality and justice in individual cases (though it is not incompatible with these). It may
also be inappropriate is some cases, where compromises or political solutions are preferred,
or in communitarian societies where social values may clash with aspects of formal
legality. Finally, there can be rules that are so numerous and complex that they defeat the
purposes of formal legality.
8
The third theme is rule of law, not man. This avoids the unpredictable predilections of
individual actors. But since laws are not self-interpreting or applying, individuals cannot
be excluded from consideration. The rule of law response has been to identify the judiciary
(legal experts) as the special guardians of the law, and reduce the significance of the
individual as judge – at its most extreme in formalism, which values the objective,
mechanical judge. This theme has been supported by the growth of law and lawyers and
their extensive social penetration in liberal societies, and by the separation of powers and
subsequent independence of judges, which was made possible by the professionalization
of law. To prevent the rule of law in this theme from [*499] becoming rule by judges is
important, especially following the decline of legal formalism. It requires careful selection
of judges committed to fidelity to the law, deference to proper authority to make the law,
diverse social background of judges, and qualities of judicial honesty and integrity, among
other factors.
On the international level, an infrastructure of global law (public and private international
law) has been and continues to be laid through rules, acceptance by states, and the creation
of international tribunals, especially in the commercial arena which has been driven by the
global economy. But here an analogy to the rule of law within nation-states is
difficult. International law is characterized by consent-based tribunals, lack of a legislature
and executive agencies, and voluntary rather than compelled acceptance of (and
compliance with) various legal regimes, all of which create rule of law difficulties. Self-
interest and power, and the overall voluntary nature of international adjudication,
counterweigh fidelity to the law. However, this situation is roughly similar to the early
(medieval) period of the state-centered rule of law tradition; there is then potential for
further development of an international rule of law.
Regarding formal legality on the international level, the piecemeal creation of rules and
tribunals, which often overlap, along with varying national interpretations and applications
of rules, all tend to reduce consistency, certainty, and equality in the application of the
law. The creation of international law rules is not always transparent, and compromise and
politics, rather than rule application, more often prevails.
Underlying support for the rule of law in nation-states has been supportive beliefs that the
law is just, made by the people, and/or for the good of the community. This is lacking in
the wide variety of states on the international level, and may be seen as designed to support
western power and values. To be successful, an international rule of law must be perceived
to reflect the interests of the entire international community.
Tamanaha concludes his book by asking whether the rule of law is a universal human
good. The first cluster of meaning of the rule of law, that government officials operate
within a legal framework in the two senses of abiding by the law as written and accepting
limits on law-making power, is indeed a universal human good. The state system and
modern government is a recent (seven centuries old) invention of the West, and in
pluralistic societies is not just an extension of the community. Experience shows that
government is capable of abusing power as much as benefiting the communities under
it. But the situation is more complicated when parts of the positive law or limits on the law
9
(like bills of rights) are transplanted from western (individualistic) societies to non-western
(communitarian) ones.
Tamanaha believes that a helpful approach would be to start not with identifying zones of
individual autonomy to identify limits on government (a liberal approach), but with the
idea of preventing government tyranny, and to decide what limits are appropriate consistent
with prevailing social-cultural views. The second cluster, formal legality (rule by rules),
is a valuable good but not necessarily a universal human good. It can be alienating when
set in different cultural contexts, such as those with greater emphasis on communitarian
values and the importance of social justice (for example, those within the Islamic
tradition). The third cluster – the rule of law, not man – follows whenever the first or
second is adopted. Self-restraint to avoid descending into rule by judges is necessary.
Finally, Tamanaha notes that all of these clusters are open with regard to content. In his
view, justice and the good of the community should be considered in any evaluation of the
value of the rule of law. He notes in this regard that “ pervasive societal attitudes about
fidelity to the rule of law – in each of the three meanings – is the mysterious quality that
makes the rule of law work.”
The idea that government powers showed be divided among separate and distinct
authorities has a long history in western constitutionalism. John Lock observed on the need
for separation of powers in as early as 1960. He satisfied to the human refuse to grasp
power and danger of such power vesting absolutely in one person or institution.
10
The notion behind this was “ Centralization of power is dangerous.” There must be check
on power. In history we find very few “ Golden periods. In spite of this period there was
no liberty for peoples.
The doctrine of separation of powers can be traced as far back as the Aristotelian times. In
later centuries, John Locke and James Harrington had advocated this principle. The credit
for a meaningful and concrete concept of separation of powers, however, goes to the
eighteenth century French philosopher Baron de Montesquieu, who wrote in his Spirit of
Laws thus:
When the legislative and executive powers are united in the same person or
in the same Magistrates or body, there can be no liberty. Again, there is no
liberty if the judicial power is not separated from the legislative and
executive powers. Were it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control; for the judge
would then be the legislator. Were it joined with the executive power, the
judge might behave with violence and oppression. There would be an end
of everything were the same man or the same body to exercise these three
powers.
Montesquieu’ s writings considerably influenced the views and thoughts of the framers of
the Constitution of the United States when they gathered to draft the American
Constitution. Thomas Jefferson, one of their founding fathers and the third President of the
US, was an ardent proponent of the doctrine of separation of powers in the context of
Governmental functioning. About 60 years before the American Constitution was drafted,
the British had, introduced in 1688 the Bill of Rights, one of the characteristic features of
which was the separation of powers between the King and the Parliament and the King and
the common Law courts. The makers of the American Constitution adopted the concept
and fitted it into their written Constitution.
Separation of powers means – “ non involvement of branches that do not possess a special
power.
Prevention of tyranny.
Efficiency of administration.
In this model only power is divided. But all branches are free to exercise as more by own
willing.
11
2. Alternate Model :
Powers are divided and mode of exercising of this power and limitations on power,
also provided in the Constitution as – India, USA
There are two views about Doctrine of separation of powers – (In USA)
In short functionalist views such SOP as a component of fulfilling the constitutional goals.
It signifies division and dispersion of a specific power between the branches i.e.
constitutional effort to ensure that the system will be able to guard against usurpation of
authority by any one branch.
Therefore the principle of SOP suggests three autonomous entities, working independently.
While doctrine of CAB suggests overlapping functions in which each branch is able to
introduce on and thereby to check the power of others. The Constitutional framework is
best understood as a scheme that embodies a partial, rather than the complete separation of
powers and that supplements the separation by crating devices by which one branch.
Purpose
The Constitution does not contemplate a Super-organ nor confers over-riding authority on
any organ. No organ has any authority to superintend over the exercise of powers and
functions of another, unless the Constitution strictly so permits, otherwise the
Constitutional balance will be greatly disturbed.
The basic foundation of our Constitution is the accountability of the State to the people
who are the real masters. The accountability of the Executive to the people at large is
enforced through their representatives in the House of People. The Legislatures also have
the obligation not to exceed the jurisdictional limits provided in our organic law. The
Constitution and its preamble are the guiding lights so far as the Judiciary is concerned but
there is no scope of enforcing its accountability to the Constitution, except judicial
conscience and rectitude. If any organ of the State arrogates to itself any power, having a
sanction only in terrorem, which under the Constitutional scheme belongs to any other
organ, it will cause a serious imbalance in our Constitutional set-up.
Hence three very important questions can be raised in Indian Constitution Perspective.
1. What are the specific powers and Functions vested in the three branches of
Government?
3. What the limitation that can be imposed on such powers and functions by other two
branches i.e. check and balances.
Art. 53(1)/ Art 154 (1) Art Art 245, 246, Art 61, Art 124(1)
123/213. 72/161, 140, Art -114, 117 Art 214(1)
76/165, 263, 260, 352, 356, Art- 124(A) Art 32/226
360, 365, 124(2), 143, 144, Art – 360 Art- 127, 120, 129, 131,
192, 207. Art -122/212 141
Art 111/200, 292, 293, 316, 265, 266, 267, 302, 303, Art – 222, 223
310, 331, 333, 339, 340, 304, 307, 309, 312A, 321,
341, 342, 344, 350B 320-A, 320-B, 323, 327,
320, 345, 360, 370, 371,
372, 241, 244-1
VII the Schedule
Express Limitations:-
Specific
• Art – 13(2) – Internal check
• Art -111 – Assent of the President – Extreme
• Art – 32, 226 – Judicial Review
• External check – Assent to money Bill
Art 262(1) & (2) Parliament may be law provide for the adjudication of any dispute or
complaint with respect to use, dist
In Indian system besides from broad separation, there is a functional overlapping i.e.
checks and balances the Supreme Court has the power to declare void the laws passed by
the legislative and the action taken by the executive if they violate the provisional of
constitution or law passed by the legislative in case of executive actions. Similarly, it is
open to a legislative to act the basis of the judgment.
The president of India in whom the executive authority of India is vested exercises law,
law-making power in the name of ordinance.
14
• The appointment and removal of the High Court and Supreme Court judges is by
the head of the executive but now in practice this power has been taken over by the
Supreme Court. (Supreme Court Advocates on Record Association v. Union of
India).
If we compare our legal system with an American system: in America also these is no
separate chapter in the constitution dealing with the separation of powers.
Article -1, 2 & 3 describes broad framework of the powers and functions of the
government. It is on the basis of this theory of SOP that the Supreme Court of U.S. has not
has given power to decide the political question and also not has power to judicial review.
But now at the case Backer v. Car and Marburry v. Madison these both power has been
usurped by the Court. This is because in the complexity of modern govt., strict structure a
classification of the powers of the Govt. is not possible. Besides this the president of U.S.
interferes with the exercise of the powers by Congress through the exercise of his veto
power. The president also interferes with judiciary by appointing judges. In the same
manner congress interferes with the power of president through vote on budget, approval
of agreements by the senate and the rectification of treaty. Congress also interferes with
the exercise of powers by Courts by passing procedural law creating special courts:
In its turn, the judiciary interfaces with the power of judicial review. It is correct to say that
the Supreme Court of the U.S. has made more amendments to the American Court then the
congress itself.
After analyzing both constitutional provisions we can see that there are almost same
conditions in SOP:
This was the first case where Apex Court of India declared that we have adopted the British
Westminster Model of government and therefore our Constitution does not contemplate a
rigid separation of work.
Validity of National Security, Ordinance, 1980 and certain provisions of N.S.Act 1980 was
challenged. Supreme Court declared that our Constitution does not follow the American
pattern of Strict of SOP
Seven judges bench decided that we accepted the British Model. Hence, there is fusion of
legislative powers.
It is role of judiciary to act as watch dog and keep check on Executive and Legislature
(who gave this power to judiciary?)
the order, the Supreme Court would have been confronted with a most embarrassing
situation in which it would have been unable to secure the enforcement of its order, thus
undermining the authority and prestige of the Court. It may be noticed that the Order of the
Supreme Court could not actually resolve the problem which was possible only by
Executive intervention.
For the Presiding Officers of the Legislatures to be directed by the Court of law to
discharge their functions in a given manner would create a wholly unworkable and
unacceptable situation. How could the Executive authorities like the Chief Secretary of the
State Government or Police officials be able to maintain the order, arrange for the
presence of the legislators and for their coming inside the House? If this was allowed, they
would have been substituting the Presiding Officers in the matter of maintenance of
discipline.
The Interim Order of the Supreme Court in these two cases, to my mind, upset the delicate
constitutional balance between the Judiciary and the Legislature. I feel that these were
instances of unfortunate and serious encroachment by the Supreme Court on well-
demarcated areas of powers of the Legislatures. It, in effect, blurred the contours of areas
of supremacy of different constitutional institutions. Articles 122 and 212 of the
Constitution explicitly symbolize the supremacy of the Legislatures within their own
spheres, and these provisions are equally binding on the Speakers as well as on all Courts.
EXECUTIVE
• At both the Centre & State level, the President & the Governor respectively are
vested with executive powers.
• The President is elected by the Electoral College, consisting of
o Elected Members of Parliament (MPs).
o Elected Members of Legislative Assemblies (MLAs).
• Every vote doesn’ t have the same value.
o There is equal weightage of between the Centre & the State.
o The weightage of votes is proportional to the population of the constituency.
• If the manner of election of the President is to be changed, it requires
o 2/3 majority in both houses of Parliament.
o Ratification by the State Legislatures.
• The requirement for amending the Constitution is less than the requirement for
impeaching the President.
• The President has to act in consensus with the recommendations of certain
committees.
• The President is given the power to preserve, protect & defend the country.
• The difference between a Parliamentary Executive & a Presidential Executive is as
follows.
o Parliamentary Executive is dependent on the legislature.
o Presidential Executive is not dependent on the legislature.
• Both the President & the Governor exercise their directory powers thorugh
subordinate officers which include ministers.
• Everything is not necessarily done by the President & the Governor but merely in
their name.
• There has to be a Council of Ministers (COM) & both the President & the Governor
don’ t have the option of deciding whether the want to have one or not.
• There was a debate on whether the President should act in accordance with the
advice of the COM.
o Those in favour were
▪ The Supreme Court.
▪ Jawaharlal Nehru.
o Those who opposed it were
▪ Dr. Rajendra Prasad
▪ K. N. Munshi
▪ Justice P. B. Mukherjee of Calcutta High Court
▪ Chief Justice of India K. Subba Rao
o Finally, it was decided that the President has to act in accordance with the
advice of the COM. (63rd Amendment, 1976)
▪ However, the Governor has no such restriction & can exercise his
discretion.
• There was a debate over whether the village should be the unit of governance.
o Those in favour were
18
▪ Gandhi
o Those opposed to it were
▪ Ambedkar
o Finally, the village was not adopted as the unit of governance but the
individual was.
• There was a debate over whether a Parliamentary system should be adopted or a
Presidential system.
o In a Presidential system, there is concentration of power in the hands of one
individual.
o In the Parliamentary system, nothing proposed by the COM becomes legal
until the President agrees.
▪ There is a distinction between the formal executive (President) &
the actual executive (COM).
o Finally, a Parliamentary system was adopted.
• The question that arose was whether the British system could be transported to
India.
o It was necessary to create a formal head equivalent to the Queen of England.
o The Constituent Assembly wanted to do this in the President.
o The controversy is not about the intention of the Constituent Assembly but
about whether their intention was reflected adequately in the language of
the Constitution.
o Therefore, the President is vested with quite a lot of strength & does not
have his functions dictated by the Prime Minister (PM).
o However, the President can’ t challenge the PM as that would be too much
power.
▪ This is why the Electoral College members are not elected simply
for election of the President but have other functions.
▪ This provides political protection to the President.
▪ However, since the President can’ t project himself politically, he
doesn’ t have so much power.
• The dissenters to this view raise the following arguments.
o Since the Queen is not elected but the President is, the President can’ t be
equated with the Queen.
o The President is less powerful because he has a limited term of office, unlike
the Queen.
o The President has the command of the army.
o The president can be impeached.
• Power of appointment of PM
o The President can exercise discretion in this regard.
o Some are of the opinion that the outgoing PM should advise the President
on who should be appointed his successor (because the Queen can’ t be
responsible for her actions).
▪ However, this is only plausible if the successor is from the same
party as the outgoing PM.
▪ Furthermore, since the President can be impeached (unlike the
Queen), it is only fair that he be allowed to exercise his discretion.
▪ In Britain, since the PM is appointed by the Queen & not the House
of Commons (HOC), therefore he need not resign if despite losing
the majority in the HOC, his party is the single largest party.
• This is not the case in India.
▪ Also, in Britain, the PM can recommend the dissolution of the HOC
without resigning, & only needs to resign if his party loses the
subsequent polls (if his party wins he need not be reappointed).
• The PM has to resign if the Lok Sabha (LS) is dissolved (he
continues only as caretaker PM) & if his party wins the
subsequent polls, he has to be reappointed.
• Thus, in India, even though the PM is appointed by the
President, his appointment is limited to the duration of the
LS.
• Power to prematurely dissolve the LS
o This power consists of 3 issues.
▪ Whether the power to advise premature dissolution is PM’ s or the
COM’ s.
• In Britain, there is a convention that the power is the PM’ s
alone even though he may consult his colleagues.
• In India, there is no such convention & no PM has ever
exercised such power alone.
• Therefore, in India, the power lies with the COM.
▪ Whether the President has to accept the advice of the COM.
• Such advice may be tendered in 2 situations.
o When the government loses its majority in LS.
▪ There are 2 competing considerations.
• If the government has been disowned
by the LS, then the COM can say that
the LS doesn’ t represent the public
opinion (prevalent in Britain).
21
• If an alternative government is
possible, then the country should not
be forced to go to polls.
▪ The first argument can only be made when a
party was elected on a particular policy & has
subsequently lost majority due to break-up of
a pre-poll alliance as it gives them a moral
right.
▪ However, if this is not so, then the second
argument carries more weight.
o When the government still has majority in the LS but
is being opportunistic.
▪ The President is bound to accept the advice
because if he doesn’ t, then the COM will
resign & no alternative COM will be able to
have majority in LS.
• For example, the NDA government in
2004.
▪ Whether the President can dissolve the LS without any advice.
• It is a purely theoretical distinction whether it is the
President’ s own idea or the COM’ s because the President
has to always have a COM.
• The President can only try & convince the COM to advise
dissolution.
• However, if the president can find an alternative COM, he
can do so.
• There have been two occasions in Britain when this has
happened.
o The first occasion arose when Asquith was the PM &
there was a very radical budget change, which the
House of Lords (HOL) was refusing to pass. King
George V convinced him to dissolve the HOC.
Asquith was re-elected & the budget was passed.
o The second occasion arose when the same
government wanted to pass the First Parliament Act
to curb the powers of the HOL. Again King George
convinced Asquith to dissolve the HOC. Asquith was
re-elected yet again & the First Parliament Act was
passed.
• However, in India, such occasion has never arisen at the
Centre but only at the State level.
• Power to dismiss the COM
o There are 2 constitutional provisions.
▪ All ministers hold their offices at the pleasure of the President.
• Actually it is at the pleasure of the PM.
22
• The powers & functions of the Governor are quite similar to those of the President.
• However, there are certain differences.
• Since the President is elected by an Electoral College which gives equal weightage
to both State & Centre, he is as much the executive head of the State as of the
Centre.
• The Governor has a dual role.
o He is the executive head of the State.
o He is the link between the State & the Centre.
• The Governor may be required to be the agent of the Centre but definitely not the
agent of the political party in power at the Centre against the political party in power
in the State.
• There are some express provisions in the Constitution that give the Governor
discretionary powers.
o For example, Article 163.
• There are also some implied provisions.
o In case of any adverse report against the State government.
▪ For example, reports recommending the imposition of President’ s
rule in the State.
o Reservation of certain Bills for the consideration of the President (though
sometimes, this is in the interest of the State government because that is the
only way that a State law which is in direct conflict with a Central law can
be allowed to exist).
• However, the Governor is not really that independent because he can be removed
by the Central government.
23
Centre-State Relationship
• R. C. Poudyal v Union of India
o Facts
▪ After the incorporation of the State of Sikkim into the Union of
India, the Lepchas & Bhutias of Sikkim were given more
24
FEDERALISM
25
• Concept of Federalism
o The word ‘ federal’ is derived from the Latin word foedus meaning both
‘ league’ & ‘ covenant’ .
o Since the first federal Constitution was that of the US, futures Constitutions
were judged in comparison with it to ascertain whether they are federal or
not.
o However, since every Constitution has essential as well as subsidiary
features, even if a Constitution differs from the US Constitution in
subsidiary features, it can still be considered to be federal in nature if its
nature is essentially similar to that of the US Constitution.
o There are 2 conflicting notions about the idea of federalism.
▪ K. C. Wheare provided a strict meaning of the idea of federalism.
• However, according to this strict notion, he was unable to
classify even 4 Constitutions as federal.
• He therefore drew a distinction between a federal
Constitution & a federal government.
▪ Birch & Elzar provided a more broad meaning of the idea of
federalism.
• They emphasized that federalism did not imply a stress on
autonomy but on mutual cooperation.
• Birch coined the term ‘ cooperative federalism.
• Elzar said that federalism means a relationship of
cooperation & partnership between the Centre & the State.
• In India, there is a 3-tier system of government consisting of the Central
government, State government & Panchayats.
o Therefore, there are 2 sets of relationships.
▪ That between the Panchayats & the State government.
• This relationship cannot be classified as a federal one
because it is one that is unilaterally regulated by the State
government through the passage of laws.
▪ That between the State government & the Central government.
• This relationship can be classified as a federal one because
it can only be regulated by a Constitutional amendment
which requires ratification by at least half the States.
o Therefore, a federal government is different from a decentralized one.
▪ Decentralization was first brought about by the Government of India
Act, 1919.
▪ Federalism was only brought about by the Government of India Act,
1935.
• Essential Features of Federalism
o Dual Polity
▪ There should be 2 layers of government & both should have
complete administrative paraphernalia.
o Distribution of Powers
▪ This should not necessarily be equitable.
▪ In fact, it is observed that the Centre is always dominant.
26
INTRODUCTION
TERRITORY
• Parliament may make laws for any part of India & the State legislature may make
laws for any part of that State (Article 248).
o Law made by Parliament shall not be deemed to be invalid on the ground
that it would have extra-territorial operations.
o However, the State legislatures do not have the power to pass laws that are
extra-territorial & the SC has followed the doctrine of territorial nexus.
▪ The law may be operating prima facie outside the territory of the
State but if there is a nexus between the State & the person, event or
property involved, it is not extra-territorial.
SUBJECT MATTER
o It was held that since Orissa had the power to amend the Agricultural
Income Tax, the Zamindari Abolition Act was valid because the motive was
irrelevant. (B. K. Mukherjee, J.)
• Kameshwar v State of Bihar
o Facts
▪ One of the clauses of the Bihar Zamindari Abolition Act was that if
there are any arrears by tenants to landlords, then the arrears are
vested in the government & the landlord receives half the arrears
from the government.
▪ This was challenged by the petitioners.
o It was held that the law was invalid because this was not a case of inadequate
compensation but of ‘ colourable exercise of power’ .
• Mukul Nair v State of Kerala
o Facts
▪ The Kerala government imposed tax on land at a flat rate,
irrespective of the fertility of the land.
▪ The petitioner owned forest land but he could not fell more than a
certain number of trees determined by the DM of the district.
▪ Therefore, he was paying a lot more tax than he was earning.
o It was held that the law was a colourable legislation as it sought to drive the
petitioner to bankruptcy & thereby allow the government to take possession
of the land.
• The rule does not deny any encroachment but merely decides whether the
encroachment is inconsequential or not.
• The rule presupposes that the policies of the State & the Centre are not at variance
with each other.
• Prafulla Kumar Mukherjee v Bank of Commerce (AIR 1947 PC 60)
o Facts
▪ State passed a law whereby the debt liability of agriculturists had
been reduced.
▪ Agriculture was a State subject, as was money lending.
▪ However, the law also affected promissory notes, which was a
Union subject.
▪ The law was challenged on this ground.
o It was held that the law was valid because the encroachment on the subject
of promissory notes was only incidental.
• A. S. Krishna v State of Madras
o Facts
▪ Criminal law & criminal procedure is an entry in the Concurrent
List.
▪ State passed a law under Entry 8 of the State List that imposed
criminal liability for the violation of the provisions of the law.
32
▪ The law also laid down special rules of trial & investigation that
were different from the Criminal Procedure Code & detrimental to
the accused.
▪ The law had not been reserved for the consideration of the President.
o It was held, applying the rule of pith & substance, that the law was valid
because it was a State law of the State List in conflict with a Central law in
the Concurrent List incidentally.
o The Court also said that Article 254 applies only when there is a conflict of
laws between the Centre & the State in the Concurrent List.
• Balsara v State of Bombay
o Facts
▪ The issue involved was that the prohibition law of the state also
affected imported liquor & import-export was a Union subject.
o It was held, applying the rule of pith & substance, that the law was valid.
INTERPRETATION OF LISTS
• As far as possible, legitimate space should be given for both Entries to have
effective scope of functioning.
• A specific Entry takes precedence over a general Entry.
• Thika Ramji v State of U.P.
o Facts
▪ Sugar industry is a State subject under Entry 24 of the State List.
▪ Centre passed a law regulating the sugar industry under Entry 52 of
the Union List.
▪ The question raised was whether the State had any remaining power
to legislate on the sugar industry.
o It was held that the sugar industry consisted of 3 stages – pre-manufacture
(raw materials), manufacture & post-manufacture (marketing). Of these,
only manufacture was within the scope of Entry 52 of the Union List & the
33
State still had the power to legislate on the pre-manufacture & post-
manufacture stages.
• Calcutta Gas Co. v State of West Bengal
o It was held that even though when a law is passed by the Centre under Entry
52 of the Union List, the State becomes devoid of power, the specific Entry
25 of the State List prevails over the general Entry 24 of the State List.
REPUGNANCY
• Clause 2 of Article 254 is an exception to Clause 1 of the same Article & is limited
to cases relating to conflicting laws on the same matter in the Concurrent List.
• There is a difference between competence & repugnancy.
o Competency deals with whether a law is within the power of a legislature
or not.
o Repugnancy deals with whether a law passed by an inferior legislature is in
conflict with a law passed by a superior legislature.
• Therefore, repugnancy can only arise when there are conflicting laws, i.e. on
matters in the Concurrent List.
• However, this should not be taken to mean that a State law on a State subject can
exist even though it is in conflict with a Central law on a Central subject on the
pretext that it falls outside the scope of Article 254.
• Repugnancy can be of 2 kinds.
o When both the laws cannot coexist, i.e. literal incompatibility as in the case
of A. S. Krishna v State of Madras.
o When both the laws can be complied with literally but not practically as in
the case of Hoechst Pharmaceuticals v State of Bihar.
• Hoechst Pharmaceuticals v State of Bihar
o Facts
▪ The Parliament passed the Essential Commodities Act under Entry
33 of the Concurrent List.
▪ Under the Act, they issued an order fixing the prices but allowing
for local taxes.
▪ The State passed a law imposing Sales Tax under Entry 54 of the
State List.
▪ The law imposed a surcharge of 10% on dealers having a turnover
in excess of 5 lakhs that could not be passed on to the consumers.
o It was held that the State law was valid because it had received the
President’ s assent.
• Vijaykumar Sharma v State of Karnataka
o Facts
▪ The President allowed a State law to operate despite being in conflict
with a Central law.
▪ Later, a new law was passed by the Parliament that was again in
conflict with the State law.
▪ The petitioners asked that the State law be declared inoperable.
o It was held (1 dissenting) that there was no conflict of laws.
34
o The Court also said that, for repugnancy, the 2 laws must be on the same
matter in the Concurrent List.
• If the Centre has stated its intention to legislate on a field, the State loses its power
to legislate on the same field.
• This doctrine cannot be applied to the Concurrent List in India.
• However, it can be applied when there has been so much legislation in a field that
there is no room for any other law.
• The mere possibility of a conflict is not enough; the conflict must already exist.
(Thika Ramji v State of U.P.)
• Repugnancy cannot have retrospective effect.
• Deep Chand v State of U.P.
o Facts
▪ The State enacted a law by which it nationalized bus routes.
▪ The President’ s assent was obtained because it was in conflict with
the Central law.
▪ The Parliament then amended the Central law to overrule such laws
by other States.
o It was held that the State law was now invalid because it was inconsistent
with the Central law.
• Zaverbhai v State of Bombay
EFFECT OF REPUGNANCY
State still had the power to legislate on the pre-manufacture & post-
manufacture stages.
o Comments
▪ Despite this, the marketing of sugar can still be legislated upon by
the Centre under Entry 33 of the Concurrent List.
• Khaitan Sugar Mills v State of U.P.
• Harakchand v Union of India
o Facts
▪ The issue was whether gold ornaments were an industry.
▪ It was argued on behalf of the petitioners that gold ornaments could
not be considered an industry under Entry 52 & Entry 7 of the Union
List because it involved works of art.
o It was held that it was an industry.
• All residuary powers except taxing powers should be in the Concurrent List.
(Sarkaria Commission)
• R. K. Bhargava v Union of India (1966)
o Facts
▪ Under the Finance Act, the Centre imposed a law requiring people
to deposit a certain amount in the Annuity Deposit Scheme.
▪ This was challenged by the petitioners.
o It was held that this valid because it fell under the exercise of residuary
powers of the Centre.
o The concurrent judgment said that the law was valid because it was a mere
variation of income tax, which was a Union subject. (Hidayatullah, J.)
• Attorney General v Amritlal Parjivan Das
o Facts
▪ A law against black marketers & stock exchange racketeers was
passed by the Centre.
▪ This was challenged by the respondents.
o It was held that the Centre had the power to legislate about preventive
detention on any subject under its residuary powers.
• Union of India v H. S. Dhillon
o Facts
▪ Agricultural land was included in wealth tax.
▪ This was challenged on the ground that it violated Entry 86 of the
Union List.
▪ The Punjab & Haryana HC held that the law was invalid.
▪ The Centre appealed against this decision.
o It was held, by a judgment of 4-3, that the law was valid.
o The majority judgment said that in every governing system, the governing
body must have the power to tax, either at the Centre or at the State, & since
this was not so in this case, the Centre could pass a law under its residuary
38
powers, i.e. the wealth tax fell partly under Entry 86 of the Union List &
partly under the residuary powers of the Centre. (Sikri, J.)
o The concurring judgment said that the meaning of wealth tax has been
misinterpreted & that, in calculating capital assets, liabilities on the assets
needs to be subtracted. Since this is not covered under Entry 86 of the Union
List, therefore it is totally under the residuary powers of the Centre. (Mittal,
J.)
o Comments
▪ The reason for such a gap in the Constitution is because the
Constituent Assembly envisaged drastic land reforms to take place
after which it would be difficult for anyone to own so much land so
as to be subject to wealth tax. (Seervai)
• Article 252.
• Article 253.
• RMDC v State of Bombay
o Facts
▪ Bombay passed a law regulating prize competitions under Entry 34
of the State List.
▪ The Bombay HC held that this law did not apply to firms from
Bombay operating in other states.
▪ Bombay, along with a few other states, requested the Centre to pass
a common law on this subject.
▪ The Centre did so & Mysore later adopted it.
▪ Mysore then sought to impose a tax on gambling under Entry 62 of
the State List.
▪ This was challenged on the ground that gambling was a prize
competition under the power of the Centre & the State was not
competent to legislate on it.
o It was held that the State law was valid because it was passed under Entry
62 of the State List, which had not been surrendered to the Centre, & not
Entry 34 of the State List, which had been surrendered to the Centre.
• Krishna Bhimrao Deshpande v Land Tribunal, Dharwar
o It was held that when a power in the State List is surrendered, it doesn’ t
mean that all aspects of the relevant entry are surrendered; only the relevant
parts are surrendered.
• Centre can control the exercise of the State’ s legislative power through the
Governor.
• The Governor can reserve any State Bill for the consideration of the President.
o If the State does not agree to the Governor’ s recommendations, the
Governor is still bound to give his assent.
39
ADMINISTRATIVE RELATIONS
o It was held that the President cannot delegate those powers to secretaries
which he cannot delegate to the States.
• Samsher Singh v State of Punjab
o It unanimously (7-0) overruled Sardari Lal v Union of India.
o It was held that the satisfaction of the President meant the satisfaction of the
Council of Ministers or the concerned official.
ARTICLE 298:
• If there are business activities being carried on by the Centre, they are subject to
State laws.
• Similarly, if a State is carrying on business activities in another State, it is subject
to the laws of that State.
ARTICLE 356:
• President can try & dissuade the PM & the Council of Ministers.
42
JUDICIAL REVIEW:
o The House of Lords said that there are statutory powers & prerogative
powers & that the exercise of the latter is not beyond judicial review.
o On the issue of whether the right to form a union can be taken away, the
House of Lords said that they will draw a line for the exercise of prerogative
powers.
• In the US, where Article 4 of their Constitution is similar to Article 356 of our
Constitution, the Courts have always refused to intervene & have left it to Congress.
• S. R. Bommai v Union of India
o 6 states were involved; 3 in each category.
o The 3 States in the first category were U.P., Rajasthan & M.P. & the facts
regarding these States are as follows.
▪ The U.P. CM resigned after the Babri Masjid demolition without
waiting for his dismissal.
▪ The only thing wrong with the first category States was that those
ministers belonged to the BJP, which was also in power in U.P.
▪ It was not the government but the party that was guilty.
▪ Strictly following the law, the BJP should have been outlawed.
o The SC unanimously upheld the dismissal of these governments & did not
scrutinize the grounds for dismissal.
o The 3 States in the second category were Karnataka, Meghalaya &
Nagaland.
▪ The only thing common between these States was that defections
had taken place.
▪ The issue was whether the government had ceased to exist or should
the new government which had come into existence be allowed to
continue.
▪ Karnataka
• The Janata government was dismissed because a few MLAs
defected.
▪ Meghalaya
• There were perpetual defections.
• The opposition government suffered.
▪ Nagaland
• There were perpetual defections.
• The Congress government suffered.
o The SC held that the dismissals were invalid.
o On the issue of the scope of judicial review, all agreed that Courts had the
power to judicial review & that the scope was wider than that laid down in
the case of State of Rajasthan v Union of India.
o The SC also stated that constitutional law & administrative law are different
because the standard of scrutiny in constitutional law under Article 356
cannot be as strict as the Courts exercised in ordinary cases of
administrative law.
o Comments
45
S R Bommai Guidelines
FINANCIAL RELATIONS
JUDICIARY
Independence of the Judiciary: Having regard to the importance and significance
attached to the function performed by the judiciary, the Constitution has consciously
provided for separation of judiciary from the executive. Not only this, the Constitution
discloses a distinct bias in favour of the independence of the judiciary. It is in furtherance
of this objective that several provisions relating to the appointment and removal of judges,
at whatever level they may be, have been enacted. A brief reference to the said provisions
would now be in order.
46
Justice Bhagwati, who led on behalf of the minority observed in Union of India v.
Sankalchand Himatlal Sheth: 2
Article 124(2): Clause (2) of Article 124 inter alia says that:
“ every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme Court and of
the High Courts in the States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted.”
Under our constitutional scheme, the President is the constitutional head. In exercise of the
powers vested in him by the Constitution, he acts upon the aid and advice of Union Council
of Ministers. So far as the executive power of the Union is concerned, it is exercised by
the Union Council of Ministers in the name of the President.
Clause (2) of Article 124 speaks of ‘ consultation’ , whether it be with the Chief Justice
of India, Judges of the Supreme Court or with the Judges of the High Court. The expression
is not “ concurrence” . The Constituent Assembly debates show that when it was
suggested by some of the members that the expression should be ‘ concurrence’ and not
‘ consultation’ , it was not agreed to. Similarly, the suggestion to provide for approval of
Parliament or its upper House - probably inspired by the U.S. Constitution – was also not
agreed to by Dr. Ambedkar (see his speech in Constituent Assembly debates Vol.8 p.258).
Practice followed till 1981: A practice had developed over the last several decades
according to which the Chief Justice of India initiated the proposal, very often in
consultation with his senior colleagues and his recommendation was considered by the
President (in the sense explained hereinabove) and, if agreed to, the appointment
was made. By and large, this was the position till 1981.
2
1977 Indlaw SC 104 : 1977 Indlaw SC 104 : 1977 Indlaw SC 104. (SCC pp. 236-37, para 50)
47
This decision had the effect of unsettling the balance till then obtaining between the
executive and judiciary in the matter of appointment. The balance tilted in favour of the
executive.
Not only the office of the Chief Justice of India got diminished in importance, the role of
judiciary as a whole in the matter of appointments became less and less.
One of the judges relied upon Article 50 of the Constitution which speaks of separation of
judiciary and executive and excluded any executive say in the matter of appointment to
safeguard the “ cherished concept of independence.” It held at the same time that it was
open to the executive to ask the Chief Justice of India and his two colleagues to reconsider
the matter, if they have any objection to the name recommended but if, on such
reconsideration, the Chief Justice of India and his two colleagues reiterated the
recommendation, the executive was bound to make the appointment. Reaction to this
judicial assertion of power have not been uniform.
In short, the power of appointment passed into the hands of judiciary and the role of the
executive became merely formal.
The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion
rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the
President under Article 143 of the Constitution [In Re Presidential Reference
Case]. All the basic conclusions of the majority in the 1993 decision were
reaffirmed. There was, however, some variation. It was held that the recommendation
48
should be made by the Chief Justice of India and his four senior-most colleagues (instead
of the Chief Justice of India and his two senior-most colleagues) and further that Judges
of the Supreme Court hailing from the High Court to which the proposed name comes from
must also be consulted. In fact, the Chief Justice of India and his four senior-most
colleagues are now generally referred to as the ‘ Collegium’ for the purpose of
appointment of Judges to the Supreme Court.
• Sri Sankari Prasad Singh Deo v Union of India & State of Bihar [1952] 1 SCR 89
50
➢ Facts
▪ The Bihar government passed the Bihar Land Reform Act which
sought to do away with the zamindari system.
▪ The Act affected small landowners who didn’ t till their own land
but didn’ t affect large landowners who tilled their own land.
▪ The Act was challenged because the small landowners were given a
higher rate of compensation than large landowners.
▪ The Act was struck down by the Patna High Court as violative of
Article 14 of the Constitution.
▪ The Bihar government appealed against this decision to the SC.
▪ However, before the SC could give its decision, the Central
government passed the 1st Amendment to validate the Act.
▪ This amendment was challenged by the petitioners.
➢ Arguments raised by the petitioners & the SC’ s replies.
▪ The amendment did not comply with the requirements of Article
368.
• The SC rejected this argument by saying that Article 368
only applied to those amendments that were specifically
mentioned in the Article.
▪ The amendment was not in compliance with Article 13 (2) of the
Constitution.
• The SC rejected this argument by saying that Article 13 (2)
only applies to ordinary laws & not amendments. It also said
that Article 368 overrules Article 13 (2).
▪ The amendment modified the powers of the SC & the HCs to
question amendments & therefore it required ratification by at least
half the State legislatures.
• The SC rejected this argument by saying that the amendment
merely reduced the number of occasions that the Courts
would be able to question amendments & did not modify
51
➢ The first part of the 25th amendment, i.e. the removal of the Right to
Property, was upheld.
➢ The second part of the 25th amendment, i.e. the removal of judicial review,
was held to be invalid as judicial review was a basic feature of the
Constitution by a majority judgment of 7-6. (However, some are of the
opinion that it was actually a 6.5-6.5 judgment because Khanna, J. agreed
with both sides on various issues.)
➢ The justifications for the majority judgment were as follows.
▪ Amendments cannot change the identity of the Constitution.
▪ Amendments cannot change the ‘ spirit’ or basic features of the
Constitution.
➢ However, the term ‘ basic features’ was not clearly explained.
• Indira Gandhi v Raj Narain
➢ Facts
▪ The 39th amendment introduced Article 329A which prevented the
Courts from deciding election issues.
▪ The amendment had no moral backing.
▪ The misuse of the amendment powers of the Parliament was visibly
demonstrated.
➢ It was unanimously held that the amendment was invalid.
➢ The importance lies in the fact that the judiciary put away their differences
& came together in order to protect the Constitution.
▪ Even though Babar was the first Mughal emperor, it was Akbar who
established the Mughal empire. Similarly, even though the basic
feature doctrine was formulated in Kesavananda Bharati v State of
Kerala, it was Indira Gandhi v Raj Narain that established it.
• Minerva Mills v Union of India
➢ Facts
▪ The 42nd amendment inserted a few clauses in Article 368.
▪ The amendment was challenged by the petitioners.
➢ It was held that the amendment was invalid.
54
• So far, it is observed that only those amendments that have interfered with judicial
review, independence of the judiciary & the powers of the judiciary have been
invalidated.