CONSTITUTIONAL GOVERNANCE CASE NOTES

I. TERRITORIAL NEXUS

A. State of Bihar v. Charusila Dasi

 Widowed woman had constructed religious trusts under four schedules: Schedules A
through D. Schedules A, B, C pertained to properties in Bihar, whereas Schedule D
pertained to properties in Calcutta.
 Act in question was the Bihar Hindu Religious Trusts Act, 1950.
 Under S. 59 and S. 70, Bihar Hindu Religious Trusts asked her to pay returns on the
religious trusts constructed.
 She contended that the religious trusts were not for public use, but that they were private
endowments, and that she does not need to pay returns on these.
 HC agreed with her, passed a writ of certiorari and prohibition allowing no taxation and
under appeal under Article 133, the SC heard this case.
 Questions before the SC were:
1. Whether the trusts in question were public areas or private endowments?
2. If they were public, could Ms. Dasi be taxed on her trusts situated outside the
State of Bihar?
 As regards the first question, the Court found that even though the trusts were managed
by trustees and she was the primary person carrying out worshipping activities there,
public activities and rituals involving a large number of Hindus were performed, and the
public could not be reasonably said to not be part of the functioning of this particular
trust.
 As regards the second question, it was contended by the respondent that the Act in
question would not apply to her trusts in Calcutta as there was no territorial nexus and
because only Parliament was allowed to make laws on charitable institutions which were
situated in two states. (Articles 245, 246 read with Entry 28, List III)
 Court asks the question whether the Act can apply to properties not situated in Bihar, but
which appertain to the trust situated in Bihar.
 Court says yes, because Court applied the R.M.D.C. case and declared that even though
the properties are not situated physically in Bihar, there is a real and pertinent connection
between the properties situated in Bihar and those situated in Calcutta.
 It was held that the act purports to provide for better administration of trusts in Bihar and
that in doing so, it wanted to control the trustees in personam.
 Considering these factors, the legislation was not held to be ultra vires due to extra-
territorial application.
B. State of Bombay v. R.M.D. Chambaugwala

 Respondent was the organizer of a prize competition who resided in Bangalore. However,
he organized prize competitions in the State of Bombay.
 Paper through which prize competition was conducted was printed and published outside
the State of Bombay, however it had a wide circulation in the State of Bombay and it was
found that “all the activities which the gambler is ordinarily expected to undertake” took
place in Bombay.
 These circumstances, it was held, constituted a sufficient territorial nexus which entitled
the State of Bombay to impose a tax on the gambling that took place within its
boundaries and the law could not be struck down on the ground of extra-territoriality.

C. TISCO v. State of Bihar

 TISCO had major manufacturing plant in Jamshedpur in Bihar. However, the goods so
manufactured were sold, delivered and consumed outside the State of Bihar. It was so
contended that at no point were the goods consumed or final transactions taken place in
Bihar.
 Under the Bihar Sales Tax Act, 1947 however, the Sales Tax Officer in Bihar added all
the income accrued from purchasers even outside the State of Bihar to the taxable income
and disallowed any and all sales tax deductions as requested by TISCO in this particular
case.
 The Bihar Sales Tax Act, 1947 was hence challenged as being ultra vires as the appellant
contended, the sales tax seeking to be imposed under S. 4(1) of the Act read with the
definition of ‘sale’ under S. 2(g) of the same Act, was not in the nature of sales tax under
Entry 48 of List II, but was in the nature of excise duty, a tax which the State of Bihar
was not allowed to impose under the Seventh Schedule of the Government of India Act,
1935.
 The contention was, that sales tax could not be imposed in the present case as the
doctrine of territorial nexus could not apply to sales tax, and also because in the present
case, there was no sufficient territorial nexus to warrant levying of the same.
 Court held that in this case, the definition of ‘sale’ as imposed under Section 4(1) and
defined under Section 2(g) was meant to include the transfer of property. Under its ambit,
it also sought to include situations where the transactions even though were not
completed in Bihar, but were to be deemed to have taken place in Bihar.
 Court further held that the Doctrine of Territorial Nexus does apply to cases of sales tax
as well. Also, they said that it was incorrect to contend that the sales tax imposed
amounted to excise duty because the Act did not seek to impose a tax on the production
or manufacture of goods but on the sale of the goods. Therefore, this contention was also
rejected.
 Court held that the presence of the goods in the State of Bihar at the time of agreement of
sale constituted a sufficient territorial nexus to impose sales tax on the same.
 D. Wallace Bros. v. Income-tax Commissioner

 A company was incorporated in the United Kingdom and had its management and control
exclusively situated there.
 A member of the company carried on business in India. The company made an overall
profit of which a major part was accrued from India.
 It was held that India could levy an income-tax on the entire income of the company, and
not only from the portion accruing from India, for there was a sufficient territorial nexus
between the company and India for this purpose.
II. DOCTRINE OF HARMONIOUS CONSTRUCTION

A. In re, CP and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (Excise

duty and Sales Tax) (Distributor)

 Section 3(1) of the impugned Act imposed and levied a tax from retail seller on the sale
of motor spirits and lubricants at the rate of five percent on the value of such sales.
 “Retail dealer” as defined under S. 2 of the impugned Act, was any person who, on
commission or otherwise, keeps for sale motor spirits and lubricants by the person by
whom or on whose behalf it is or may be purchased.
 Motor spirit was subject to an excise duty imposed by the Motor Spirit (Duties) Act,
1917, an Act of the Central Legislature; no excise duty had been imposed on lubricants.
 Under the definition provided by S. 2 however, distributors also came under the umbrella
of ‘retail dealers’. This was because consumption here wasn’t mentioned and the tax
meant a tax at every stage of sale.
 However, excise duty under Entry 45, List I was levied at every stage except the last
stage of sale, at which it was sales tax that was to be imposed.
 It was contended that the ambiguity in the definition allowed encroachment into the
Federal Tax, and that sales tax had for all practical purposes, become excise duty.
 Provincial government however, contended that excise duty was only duty on
manufacture or sale, and hence distributors could not be considered to be within the
ambit of the definition of excise duty, as they did not manufacture or produce the goods
so taxed. Hence at that point, it was sale.
 Question to be asked was whether the tax imposed by the provincial government was
indeed a sales tax or disguised excise duty.
 Court looked into the Doctrine of Pith and Substance, and said that it will seek to
ascertain the meaning and intention of Parliament from the language of the statute itself:
but with the motives of Parliament it had no concern.
 Court says that similar processes of interpretation as were followed in Australia, Canada
and the United States were to be taken into consideration, and hence attempted to apply
the Doctrine of Harmonious Construction to the instant case.
 Court said that if both entries were looked at individually and given the widest amplitude,
then both the construing of excise duty as contended by the Federal Government as well
as that of sales duty as contended by the provincial government were correct.
 Court goes into the origins of sales tax, where it was described as a tax on turnover and
hence in the instant case, sales tax is restricted to turnover tax. Similarly, excise duty is
restricted and said to include only duties levied till the point where any utility was added
to the product.
B. Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh (Acquisitions of Sugar

Industries)

 By the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971 (which later became an
Act), twelve sugar undertakings stood transferred and vested in a Government.
Undertaking named the U.P. State Sugar Corporation Limited.
 In appeal to this Court it was contended on behalf of the appellants that since sugar is a
declared industry under the Industries (Development and Regulation) Act, 1951 in view
of Entry 52 in Union List read with Entry 24 in State List further read with Article 246,
Parliament alone is competent to pass the law on the subject and not the State Legislature
and, therefore, the impugned legislation is void.
 The State of UP contended that Entry 42, List III allowed them to acquire the sugar
industry and that the pith and substance of the legislation was not industry but
acquisition, so even if sugar was a declared industry under Entry 52, List I, the State
Legislature was not beyond its powers in making the impugned Act.
 Court dismissed the writ petition, on the grounds that the Central legislation was about
control and regulation, but it did not speak of absolute control. Furthermore, if the State
was not allowed to make laws on any industry, then Entry 33, List III would become
redundant. In this way, the power of the Centre was restricted.
 Court also limited the acquisition under Entry 42, List III to merely transfer of ownership,
excluding control from the ambit of acquisition, thereby restricting the power of the State
as well.
 Entry 52, List I was therefore, limited to mere control in development and regulation and
all other powers regarding the industry remained with the State under Entry 24, List II. In
this way, Harmonious Construction was applied.
C. ITC Limited v. Agriculture Produce Market Committee

 ITC manufactures tobacco, which is a controlled industry under Entry 52, List I. The
Tobacco Board Act, 1975 was also enacted by the Centre.
 The Agriculture Produce Market Committee [APMC] was created by the state legislature
and the question in this case pertained to raw tobacco, which was an agricultural produce.
 ITC was asked to pay market fees to APMC. They however, contended that since tobacco
was a controlled industry under Entry 52, List I and the APMC was a state-created body,
the state could not legislate on matters pertaining to tobacco.
 Entry 28, List II and Entry 52, List I were therefore, in conflict.
 Court said that Article 246 provided the power of legislation and that the three lists were
not powers but fields of legislation.
 Invariably, the question that arose before the Court in this case was, what was the ambit
and scope of ‘industry’ under Entry 52, List I?
  Court said that if ‘industry’ under Entry 52, List I was given the widest amplitude
meaning, then Entry 27, List II would in this case, become completely redundant. Entry
27, List II being a specific entry, the ambit of industry had to be restricted in order to
facilitate the State application in making laws under Entry 27.
 But in the present case, ‘industry’ was to be construed in its widest amplitude and
therefore, it said that when Parliament was given the power to control an industry under
Entry 52, it included the produce of such goods as well and therefore, the AMPC was
held to not have the power to levy market fees on raw tobacco and to that extent, the
AMPC was restricted.

D. State of Bombay v. Balsara

 A conflict was seen between entry 41, List I and entry 8, List II. These items in the
respective lists deal with import of intoxicating liquors.
 It was argued for a broader view of the Central entry that the State could not prohibit the
possession and sale of intoxicating liquors as that would amount to a power to prohibit
their import into the country.
 However, to reconcile the two entries, the Supreme Court gave a limited meaning to the
word ‘import’ in the Central entry in order to give effect to the State entry.
 The court held that ‘import’ could not include sale or possession of the article imported
into the country by the person residing in the territory in which it was operated. The State
entry has no reference to import and export but merely to production, manufacture,
transport, purchase and use of liquors.
 Thus, entry 8 has been given effect by narrowing down the scope of entry 41 which could
otherwise nullify the State power if it were to be broadly interpreted.

III. DOCTRINE OF PITH AND SUBSTANCE

A. Prafulla Kumar v. Bank of Commerce, Khulna

 In this case, the constitutional validity of Section 30 of the Bengal Moneylenders Act,
1940 was challenged.
 This case was under the Government of India Act, 1935; a Privy Council decision.
 The legislation wanted to remedy the evil of moneylending and therefore, under Entry 28
of the Federal Legislative List, they had the power to regulate cheques, bills of exchange,
promissory notes and other like instruments. However, under Entry 27 of the Provincial
List, the provinces had the power to regulate trade and commerce…..moneylenders and
moneylending.
 The question in this case was whether the State was competent to enact the Act under
Entry 27, because there was incidental encroachment into the domain of the Federal
Legislature, wherein the regulation of moneylending involved the regulation of modes of
moneylending, which included not just cash, but promissory notes and bills of exchange
as well.
 The High Court had applied the Doctrine of Repugnancy and declared the federal
government prevalent.
 However, there were four limbs to the State argument:
1. If the provinces had the power to make laws with respect to moneylending, then it
obviously had the right to make laws regarding the contractual rights of borrowers
and moneylenders, whether by promissory notes or bills of exchange is irrelevant.
2. In Pith and Substance, the legislation was about moneylending and, making
references to Canadian and Australian decisions, incidental encroachment wouldn’t
declare the legislation void.
3. There is a difference between negotiable instruments and contractual relations
through negotiable instruments and specific moneylending contracts were within the
ambit of the state. Contract law and general principles therefore, were to apply to all
contracts irrespective of negotiability of the instruments used in said contract.
4. In the impugned legislation, negotiable instruments were not the only instruments
used and the legislation in question impacted those and all other instruments equally.
 What had to be considered in the case was, the scope, object and effect of the
legislation and the Court therefore rejected the contention that the Doctrine of Pith
and Substance did not apply to India because of clear-cut division of powers.
 Broad interpretation given to each of the entries in the three legislative lists would
result in overlaps and even though there is a demarcation, the Doctrine of Pith and
Substance has to be applied in order to resolve conflicts between the lists.
 The Court asked whether the Pith and Substance was moneylending, whether the
incidental encroachment declared the legislation void and lastly, if in P&S the Act
was about moneylending then would the degree of incidental encroachment be a
material fact.
 The Pith and Substance was held to be moneylending, incidental encroachment did
not declare the legislation void and the degree of overlap did not matter in cases
where the P&S of the legislation made the legislation valid.
B. State of Karnataka v. Drive-In Enterprises

 In this case, the legislation challenged is the Karnataka Entertainment Tax Act, 1998.
 Respondent herein, is the proprietor and owner of a drive-in theatre on the outskirts of
Bangalore, which exhibits cinema films.
 Under Entertainment Tax, fees of Rs. 3 was charged. However, if one wanted to admit
their car in to watch the film inside their car, they had to further pay Rs. 2.
 After Karnataka HC struck down S.2 of the Act, amendments were made to S. 4A and S.
6 and again entertainment tax was levied on cars entering the drive-in theatres.
 Appellant contended that based on the amendments, the Act was about levying tax on
entertainment and not, in P&S, about the admission of cars and motor vehicles.
 However, the respondent contended that the special and distinguishing feature of drive-in
theatres pertained to how a person could watch movies within the confines of his car. In a
nutshell, what their argument said was that the tax had to be imposed on the person being
entertained, and not on inanimate objects.
  Reference to Goodyear India Ltd. V. State of Haryana, where it was held that the
nomenclature of an act cannot be used to determine its constitutional validity. The P&S
i.e. the object, scope and effect of the impugned Act had to be taken into consideration
 The Court observed that the car formed an essential part of the process of entertainment
in drive-in theatres, because the admission of the car added to the entertainment value.
Thus, it said that the quality of entertainment would differ between a mere spectator
watching the show as compared to a person sitting in the comfort of his car.
 So the Court held that, in spite of the form and name of the legislation, the P&S of the
legislation and the tax was entertainment, and therefore the order of the HC was struck
down and the Act was held to be constitutionally valid.
D. State of Rajasthan v. G. Chawla

 The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplification Control) Act,
1952.
 The respondents in this particular case contended that under Section 432 of the Code of
Criminal Procedure, the Pith and Substance of the Entry 31, List I and not within Entry 6
of List II.
 G. Chawla was prosecuted because he had taken a permit but failed to adhere to two
conditions
o No audibility beyond 30 yards.
o No sound amplifiers over six feet from the ground.
o No amplifiers near schools and hospitals.
o No amplifiers in public places without a permit.
 State justified the Act as coming under Public Healthcare because it covered the noise
pollution caused as a result of sound amplifiers. It contended that in object, scope and
effect, the legislation covered public healthcare and not communication, as contended
under the Entry 31, List I argument.
 Applying Prafulla Kumar and other similar case laws, the Ajmer legislation was said to
be valid.
IV. DOCTRINE OF COLOURABLE LEGISLATION

A. K.C. Gajapati Narayan Deo v. State of Orissa

 The impugned Act in this case was the Orissa Estates Abolition Act, 1952.
 The Act, insofar as its main features were concerned, followed similar Acts enacted by
the Bihar, Uttar Pradesh and Madhya Pradesh Legislative Assemblies. The primary
purpose of the Act was to abolish all zamindary and other proprietary estates and interests
in the State of Orissa and after eliminating all the intermediaries, to bring the ryots or the
actual occupants of the lands in direct contact with the State Government.
 Under the first head, the appellants’ main contention was regarding the validity of the
Orissa Agricultural Income Tax (Amendment) Act, 1950. It was contended that this
legislation was a colourable legislation as the true purpose of the legislation was to
actually reduce by artificial means, the net income of the intermediaries, so that the
 compensation payable to them would be reduced. The rate of taxation had been increased
almost three times by the time of the second amendment to the Act, so the compensation
reduction argument had some factual basis.
 It may be made clear at the outset that the Doctrine of Colourable Legislation does not
involve any question of bona fides or mala fides on the part of the legislature. The whole
doctrine resolves itself into the question of competency of a particular legislature to enact
a particular law. If the legislature is competent to pass a particular law, the motives which
compelled it to act are really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. Whether a statute is
constitutional or not is thus always a question of power.
 Court refers to State of Bihar v. Maharaja Kameshwar Singh, where two clauses of a
similar Bihar Act were held to be unconstitutional on the grounds of it being colourable
exercise of power.
 The Court said that Canada, the US and India provide express liitations for legislative
power in the form of Fundamental Rights and competency under Article 246.
 The idea of the Colourable Legislation Doctrine is that even though the enacting
legislature appears to be competent to make the legislation, but in Pith and Substance it
has been coloured as a competent legislation.
 The State was held to have the competency to levy taxes, increase rate of taxes and even
though there existed possible mala fide intention and the intermediaries were affected
indirectly, the substance of the impugned Act was to increase the agriculture tax rate and
to that effect, the Orissa Legislature was held to be competent to enact the legislation.
 THE EXECUTIVE

I. PARDONING POWERS (ARTICLES 72 AND 161)

A. N.B. Khare v. Election Commissioner of India (Article 62)(Article 54)(1957-1958)

 10% members who were voting or candidates to the Presidential election can challenge
the Presidential or Vice-Presidential election.
 Matter pertained to the election of Sir Rajendra Prasad as President in 1957, which was
challenged by the petitioner.
 The Supreme Court further held that it would not entertain any petition challenging the
Presidential election before the completion of the election process and declaration of
results. This was because if it was allowed, then conceivably the mandatory provisions
under Article 62 would be violated.
 Furthermore, under Section 14 of the Presidential and Vice-Presidential Elections Act, an
election could be called into question either by a candidate or by ten or more electors.
E. K.M Nanavati v. State of Bombay (Article 72 vis-à-vis Article 161)(1961)

 K.M, Nanavati was sentenced to death by the Bombay High Court. He was however,
given pardon by the Government of Maharashtra.
 This pardon was given even before the case appeal reached the Supreme Court, and the
Supreme Court held that the pardon went against the rules of the Supreme Court.
 In this case, the Supreme Court held that pardon could not be given before all judicial
proceedings and judicial recourses have been resorted to.
F. Kehar Singh v. Union of India (Indira Gandhi assassination case) (1989)

 The Indira Gandhi assassin was convicted under Section 120B read with S.302 IPC, and
given death sentence by the High Court, and his appeal to the Supreme Court was
dismissed.
 When a mercy petition was filed by his son before the President, the President outright
rejected the petition and Kehar Singh’s request for a personal hearing was rejected as
well, on the ground of not being in conformity with the “well established practice in
respect of consideration of mercy petitions.”
 President further stated, when the counsel communicated to him, that the President could
not go into the merits of the case finally decided by the Court.
 The question before the Court was, to what extent does the pardoning power of the
President allow him to scrutinize evidence with respect to the case?
 The Court held that in scrutinizing evidence for the exercise of his pardoning power, the
President under Article 72 had the most liberal interpretation.
 In scrutinizing evidence, the Court held that he did not modify the judicial record so set,
as the judicial record remained intact. The President was held to have acted under a
 constitutional power, the nature of which was very different from the judicial power of
the Courts.
 The Court further observed that the power under Article 72 was of the widest amplitude.
It was further mentioned that it was required for him to mention the merits and reasons
which led him to making the decision.
 SC further refused to lay down any guidelines.
G. G. Krishna Goud v. State of Andhra Pradesh (1976)

 Two persons were sentenced to death for committing murder in implementing their
ideology of social justice through terrorism.
 The President refused to commute their death sentence. Here, they argued before the SC
that their crimes were of a political nature and therefore, warranted different
consideration.
 Court rejected the petition, and pointed out that Article 72 granted the President the
humane and vast jurisdiction to pardon. Historically, it was a sovereign power but
politically, it is a residuary power.
 Court however, pointed out that all power, however majestic, the dignitary wielding it
had to exercise good faith, with intelligent and informed care and honesty for the public
weal. In the instant case, the Court found no ground to consider the refusal of
commutation.
H. Kuljeet Singh v. Lieutenant Governor of Delhi (1982)

 Kuljeet Singh had kidnapped and brutally killed two children because of a feud with the
children’s family.
 The High Court gave the death sentence, and the Supreme Court upheld it. When a mercy
petition was filed to the President, the President rejected the petition without pointing out
any reasons for his actions.
 The SC, in a writ petition filed, held that the question as to whether the Government had
to form guidelines regarding the exercise of Article 72 rights by the President was an
important one, but in turn did not really address the question and dismissed the petition
anyway on the grounds that the murders committed by him were so grave that the only
justifiable sentence was the death sentence.
I. Maru Ram v. Union of India (1980)

 There was an Amendment to the Cr.P.C. in 1978, which amended Section 433A,
providing that people given life imprisonment had to be given minimum fourteen years’
imprisonment in cases of (i) People who could have been given the death penalty; (ii)
People whose death sentence was commuted.
 In this case, the Court clarified that it is not open to the President to take an independent
decision or to direct or refuse release of anyone on his own choice. They said, “The
President here is an abbreviation for the Central Government.”
 The Court further mentioned Article 14 and the protection against arbitrariness, stating
that the power to pardon, grant remission or commutation, being of the highest pedestal
for the life and liberty of the citien, could not be exercised mala fide and ordinarily,
 guidelines for fair and equal execution were necessary in order to eliminate arbitrariness
on part of the Governor and President.
J. Epuru Sudhakar v. Government of Andhra Pradesh (2006)

 In this case, a Congress worker was given the death sentence by the Andhra Pradesh HC
for murdering a member of the TDP and the SC confirmed the death sentence.
 The Governor of Andhra Pradesh granted pardon to this murderer, and the pardon was
challenged before the High Court.
 The argument was that since the ex-party of the Governor was the same as that of the
sentenced murderer, the pardon had been granted mala fide.
 The HC quashed the pardon and on appeal, the SC upheld the HC decision. Pasayat J.
further laid down certain guidelines for the judicial review of Article 72 and 161 pardons.
They were:
o That the order had been passed without application of mind;
o That the order is mala fide;
o That the order has been passed on wholly extraneous or irrelevant considerations;
o That the relevant materials had been kept out of consideration;
o That the order suffers from arbitrariness;
 The Court further held that pardon obtained on the basis of manifest mistake or fraud can
also be rescinded or cancelled. This is the most recent position regarding pardoning
power in India.
K. Devendra Pal Singh Bhullar v. State (NCT of Delhi) (2002)

 1993 bomb blast convict, who had killed 9 and injured 17. The rest of the accused were
acquitted, however the Trial Court awarded him a death sentence.
 Bhullar’s appeal against the conviction was rejected by the Supreme Court in December
2006, and his plea for Executive clemency was also rejected by the President.
 In 2011 however, the Court sought to grant him a second appeal and this time a
Constitutional Bench heard the case rather than a Trial Bench. In April 2013, the Court
upheld the death sentence.
 After several scandals involving a letter sent to the German Chancellor requesting
diplomatic pressure, the Court issued a notice to the Central Government asking for the
commutation of his death sentence to life imprisonment on the grounds that he had gone
insane inside the prison.
 The President granted the mercy petition, and the Court upheld his commutation on the
ground of inordinate delay in his case and because of his suffering from schizophrenia.
 The Court mentioned that grant of pardon was a constitutional right and had to be
exercised with the aid and advice of the Council of Ministers, in order to prevent
arbitrariness or unreasonablesness regarding the same.
V. ORDINANCE-MAKING POWERS (ARTICLES 123 AND 213)

A. A.K. Roy v. Union of India (1982)

 Power of the President to issue ordinances under Article 123 was questioned with respect
to the National Security Ordinance, 1980.
 The Supreme Court here, held that the power of the President to issue an ordinance is not
totally excluded from judicial review. It further said that the satisfaction of the President
cannot be regarded as a purely political question and kept beyond judicial review.
 However, the Court refused to go further as in the interim, the Ordinance was replaced by
an Act and the material placed before the Court regarding the ordinance was meagre.
L. T. Venkata Reddy v. State of Andhra Pradesh (1985)

 The Andhra Pradesh State Government promulgated an ordinance abolishing posts of

part-time village officers in the State. Ordinance was not succeeded by an Act though it
was succeeded by four ordinances.
 Argued before the SC that the Legislature not having enacted the Ordinance, the posts
had to be revived and successive ordinances did not serve any purpose. The SC rejected
the argument.
 The Court said that if the Ordinance comes to an end for any reason, it does not become
void ab initio. It is valid when enacted and any transactions so completed under the
Ordinance cannot be reopened once the Ordinance has lapsed.
 Articles 123 and 213 make use of the phrase ‘cease to operate’ and it only means that no
future transactions could be carried out on the basis of the Ordinance, not that past
actions had to be declared invalid.
M. K. Nagaraj v. State of Andhra Pradesh (1985)

 The age of superannuation was reduced from 58 to 55 years by virtue of an ordinance

amending the service rules.
 Here, the Court rejected the contention that the Ordinance could be invalidated on the
ground of non-application of mind. The power of Ordinance was held to be executive
legislative power and thus, the limitations to which this power was subject were the same
limitations to which the State Government was subject to.
 It was held that even though an Ordinance could be invalidated for contravention of
constitutional limitations, it cannot be declared invalid due to non-application of mind.
N. D.C. Wadhwa v. State of Bihar (1987)

 256 Ordinances were continually re-promulgated in the State of Bihar.

 The Court in this case, held that the executive power of Ordinance-making cannot be
used as a substitute for legislative power of Parliament and therefore, the courts will
invalidate the ordinances which are re-promulgated time and again without being brought
before the Parliament as required under clause (2) of Article 123.
  The Court called the practice of re-promulgating Ordinances a “reprehensible practice of
the highest constitutional importance.” One of the Ordinances so declared
unconstitutional was the Bihar Intermediate Education Council Ordinance, 1985.
O. Krishna Kumar Singh v. State of Bihar (1998)

 The Bihar Sanskrit School Ordinance was re-promulgated till 1994.

 The Ordinance made these Sanskrit school teachers government servants, and the Court
said that Ordinances beyond the first do not create any new rights.
 Rights under an Ordinance were said to persist only if: (i) Right continuation necessary in
public interest; (ii) If there is a constitutional necessity in order to ensure that
Fundamental Rights violations are not continued. This was the Theory of Enduring
Rights.
 First Ordinance itself was held to be invalid as it was not placed before the House, and it
will cease to operate if not done so. Furthermore, the Court held that there were certain
pre-requisites under Article 213(1) that had to be necessarily followed. The pre-requisites
were: (i) Necessary conditions; (ii) Ordinance promulgated to deal with the necessary
conditions; (iii) The Ordinance is to be placed before the Legislature.
 Furthermore, Rule 140 of the Rules of Procedure of the Bihar Vidhan Sabha was referred
to, and it was held that the copy of the Ordinance which was to be sent to the Bihar
MLAs was not done.
 Re-promulgation of Ordinances was held to be a fraud of the Constitution, and was
further declared to be a mechanism for executive overreach into legislative domain. Open
discussion of laws in the Legislature allows for excessive scrutiny, while Ordinances
attempt to avoid this process.
 Thus, the Governor was criticized for colorable exercise of power.
VI. GOVERNOR

A. B.P. Singhal v. Union of India (2010)

 In this case, the newly elected Central Government had removed the Governors of Uttar
Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14th Lok Sabha election.
When these removals were challenged, the Supreme Court held:
 The President, in effect the central government, has the power to remove a Governor
at any time without giving him or her any reason, and without granting an opportunity
to be heard.
 However, this power cannot be exercised in an arbitrary, capricious or unreasonable
manner. The power of removing Governors should only be exercised in rare and
exceptional circumstances for valid and compelling reasons.
 The mere reason that a Governor is at variance with the policies and ideologies of the
central government, or that the central government has lost confidence in him or her,
is insufficient to remove a Governor. Thus, a change in central government cannot be
a ground for removal of Governors, or to appoint more favorable persons to this post.
  A decision to remove a Governor can be challenged in a court of law. In such cases,
first the petitioner will have to make a prima facie case of arbitrariness or bad faith on
part of the central government. If a prima facie case is established, the court can
require the central government to produce the materials on the basis of which the
decision was made in order to verify the presence of compelling reasons.
In summary, this means that the central government enjoys the power to remove Governors of
the different states, as long as it does not act arbitrarily, without reason, or in bad faith.
P. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016)

(Article 356)

 The Governor postponed the Assembly session in Arunachal Pradesh, contrary to the aid
and advice of his Council. He further authorized the Deputy Speaker to preside when
considering the removal of the Speaker.
 Here, the Governor, without giving the Chief Minister the opportunity to conduct a floor
test, recommended action under Article 356.
 A Constitution Bench of the Supreme Court invalidated this action of the Governor
compelling the President to withdraw the action under Article 356 after over six months.
 Furthermore, it was held that summoning of any House without the aid and advice of the
Council of Ministers was unconstitutional.
 PARLIAMENT

I. PARLIAMENTARY COMPOSITION

A. Kuldip Nayar v. Union of India [(2006) 7 SCC 1]

 This case pertained to writ petitions under Article 32, which were filed to challenge the
deletion of the requirement of “domicile” in the State concerned for getting elected to the
Rajya Sabha. This, according to the petitioners, violated the principle of federalism,
which was a basic feature of the Constitution.
 There was a further challenge to the introduction of an open ballot system through which
according to the petitioners, violated the principle of secrecy which was the essence of
the voter’s right to vote and by extension, the right to expression which was granted to
the voters by virtue of Article 19(1)(a) of the Constitution.
 Thus, the two issues before the Supreme Court were:
o What was the nature and significance of “domicile” and whether there was any
need of a domiciliary link between the person appointed to the Council of States
and the State concerned?
o What was the importance of secrecy in voting under the Constitutional scheme?
 It was the argument of the petitioners that in context of the first requirement, in order to
effectively ‘represent a State or Union Territory in the Council of States’ as envisaged
under Article 80, the person had to be from the State concerned as each State or Union
Territory created had its own problems, interests, etc.
 Therefore, in order to effectively represent a State or Union Territory in the national
legislature, it was contended that a person had to be from the same State.
 It was further contended that in order to effectively represent the State at the Centre, the
MP had to be conversant with the language, culture etc. of the people of the State. In this
context as a result of the Amendment, the person would only be representative of the
State Assembly that got him elected and not of the people of the State itself, as was
required under Article 80.
 The petitioners further argued that under Article 84(c) read with Article 327 and Entry
72, List I of Schedule VII, it could be reasonably inferred that the Parliament had
legislative competence to make laws defining or modifying the qualifications from time
to time.
 This was further followed by a concession that even though having a person “ordinarily
resident” in the State as required by the RP Act, Section 3 was not the only way to ensure
representation of the State, but there had to be some mechanism put in place. Section 3
could be amended, so long as it put some qualification in place. This had to be done by
putting forward some method that would ensure the representation of States.
 “Representative”, according to the petitioners, had two connotations in a democracy: (1)
Authority to represent; and, (2) Power to represent; as only a member of a class could
represent a class in a system of self-governance. In this case, the class was the State and
the members of the class were the citizens of the State, and therefore, a member elected
 to the Council of States has to first represent the State and then be elected by the State
Assembly.
 The representation of State had to be a requirement under Article 80(4), and this
representation of State had to then be supplemented by State Assembly vote, and mere
Assembly vote id not hold him “qualified” to be an MP in the Council of States.
 The Supreme Court dismissed this writ petition, on the grounds that in the Lok Sabha, the
constituencies were divided on the basis of population, and thus there as largely unequal
representation of States in the Lok Sabha. The Rajya Sabha then became an indicator of
federalism.
 Bicameralism as a concept emerged from the growing need of the interests of constituent
States to be represented at the Centre, and the need for bicameralism is shown for the
effective working of a federal structure and better coordination between the Centre and
the constituent States.
 Under Article 83(1), the Rajya Sabha was a permanent body with 1/3 rd of its members
retiring every 2 years and every member having an effective tenure of 6 years. These
staggered terms reflect how the political terms present in the Rajya Sabha may not reflect
the political situation in the Lok Sabha, however it is no principle of federalism that the
representatives of one State must belong to that State.
 Residence is not in the Constitution expressly, and neither is it a feature of such grave
magnitude that its exclusion would lead to a collapse of the element of residence is
removed.
 Moreover, in the contemporary context, it was noted that the second chambers were
gaining a more national character based on social, economic and political affinity and this
change was compared to the change in the role of the Senate in the US, which changed
because of direct election of Senators, development of national parties and national
integration.
 Similarly in India, after the relaxation of central control of the economy in 1990,
federalism as a concept had undergone a sea change.
 The role of the Rajya Sabha is a revising chamber, and a chamber which helps improve
the bills passed by the Lok Sabha. Even though supposed to be a champion of interests of
States, the Rajya Sabha members do not vote based on State affiliation, but they vote
along party affiliation and their own views.
 As regards the Article 84(c) contention, the Court held that other than the two express
restrictions under Articles 84(a) and (b), the Legislature had free competence to enact any
other qualifications, and the only express disqualifications that could not be changed are
those under these Articles in the Constitution, as well as that under Article 102.
 The Court found no basis in the contention that somehow, a person resident in a State had
better ability to represent the State as opposed to someone who was not domicile.
Furthermore, the Court mentioned that it is the electorate of the State who are in the best
position to decide the representatives of the State, whether as members of the Upper
House or the Lower House.
 It was important to note that even after the Amendment:
o Electors remained the same i.e. the State Assemblies.
o The elected representatives remained the representatives of the State.
o The choice to elect the person remains with the State Assemblies.
 The thrust of the petitioner’s argument was that outsiders would be given preference, but
this was rebutted as ultimately, it was the Assembly electing them and the Assembly
would look out for the best interests of the State when making these appointments.
 With respect to the principle of secrecy, it was held to not be an absolute principle. The
principle was free and fair elections and the purity of elections. The rule of secrecy could
not be put in motion in order to suppress a wrong or allow a fraud to the Constitution to
take place.
 In the present case, the open ballot system for Rajya Sabha voting is done to prevent the
evil of cross-voting which could stem out of other anti-Constitutional practices like
corruption, and this transparency was done to protect the larger interest of free and fair
elections.
 In a case where there is secrecy, a voter may choose to disclose his vote, however where
such disclosure affects the administration of justice, the disclosure of vote was necessary
to protect from larger evils.
 The right to vote in the context so sought in the petition, had to yield to the larger concept
of free and fair elections. The right to vote is an ingredient of free and fair elections, and
it is free and fair elections which provides content to this right to vote. However, it is not
a necessary ingredient, the Court mentions. Right to vote for Rajya Sabha members is not
a constitutional right, there is nothing under Article 80(4) declaring it to be an absolute
right under the Constitution.
 Right to stand for elections was further, a statutory right and Parliament had the right to
regulate the same, and the manner in which the same was carried out.
 The Court thereby held that secret ballot could not be construed to be a constitutional
right, and that secret ballot could be regulated via changes to the statute regulating
elections.
 Where the Constitution sought the express necessity of secrecy, it was done so eg. In the
cases of election of the President and Vice-President. Reading it as an implied necessity
even in this context would defeat the purpose of Constitutional and statutory
construction.
 Furthermore, as regards to an Article 327 contention, it was held that Article 327 gave
Parliament the absolute right to make laws with respect to election, and no advice given
by the Election Commission in this regard was binding on Parliament, as there was
Parliamentary supremacy in this regard.
 As regards to the Article 19(1)(a) contention, the Court further mentioned that firstly, the
right to vote was only forfeited by the MLA is he refused to show his vote. Secondly,
even if he voted against the party, he would not face disqualification but at most,
admonishment from his party. Thirdly, this Amendment was sought to prevent cross-
voting and other corrupt evils and could be read as a reasonable restriction under Article
19(2). Lastly, the elections of Speaker, Deputy Speaker and Chairman were also open
ballot, so the impugned Amendment did not cause any faults.
VII. OFFICE OF PROFIT

A. Shibu Soren v. Dayanand Sahay [(2001) 7 SCC 425]

 Appellant was nominated as the chairman of the Interim Jharkhand Area Autonomous
Council under section 23 of the Jharkhand Area Autonomous Council Act, `1994.
 Office held at the pleasure of State Govt under section 23(7) of the Act.
 As chairman he received:
o An honorarium of Rs. 1750/- per month.
o Daily allowance of Rs. 150 for period spent outside HQ.
o Daily allowance of Rs. 120/- for attending meetings of Interim Council.
o Furnished accommodation.
o A car with driver.
 Appellant filed for position in Rajya Sabha as EC announced vacancy, but even when
elected, respondent raised contention that based on S. 80 and 81 of RP Act, 1951, the
appellant held office of profit.
 Three contentions by appellant:
o No profit as such as he was only earning honorarium;
o Office held cannot be office of profit under State government;
o Disqualification stood removed by virtue of S.3 of Parliament (Prevention of
Disqualification) Act, 1959.
 Three conditions for attracting Art. 102(1)(a):
o Under the Government of India or of any State;
o The office should be an “Office of profit”;
o The office should not be one which is declared by Parliament by law so as to not
disqualify its holder;
 Court mentions that “profit” in its ordinary connotation denotes some pecuniary gain. If
there is some real gain, then whether it is called ‘honorarium’, ‘remuneration’, ‘salary’ is
immaterial. Similarly, the quantum of pecuniary gain is also irrelevant.
 A practical view, not pedantic basket of tests must guide the courts to arrive at an
appropriate conclusion. A ban on candidature must have a substantial and reasonable
nexus with the object sought to be achieved, viz., elimination of or in any event reduction
of possibility of misuse of the position which the legislator concerned holds or had held
at the relevant time.
 The principle for debarring a holder of office of profit under the Government from being
a Member of Parliament is that such person cannot exercise his functions independently
of the executive of which he becomes a part by receiving “pecuniary gain”.
 The main question in the case thus became, whether the Rs. 1750/- honorarium
constituted pecuniary gain for the purposes of Article 102. Court held this to be pecuniary
gain, as this payment was made in addition to the already given allowances i.e. the Rs.
150/- and Rs. 120/- payments.
 By virtue of Section 6(2) of the JAAC Act, MPs and MLAs could not be members of the
Interim JAAC, and also by virtue of Section 23, it was a State body. The decisive ‘hire
and fire’ test applied here.
 Thus, appellant said to have held an office of profit and was thus, disqualified.

Q. Biharilal Dobray v. Roshanlal Dobray [(1984) 1 SCC 551]

 Respondent employed as a teacher at a basic primary school established by the Zila

Parishad.
 On coming into force of the U.P. Basic Education Act, 1972, he became an employee
under the Board of Basic Education vide S.9(1) of the Act.
 At this point, while holding this position, he filed to become an MLA, and was rejected
by the Returning Officer as he held an office of profit and was disqualified under Article
191(1)(a). HC declared election void, but appeal filed under Section 116A of the RP Act.
 The elements of office of profit discussed as firstly, being an office under the government
and secondly, as being an office of profit.
 The purpose of the office of profit clause discussed, largely in concurrence with the
principles in the Shibu Soren case.
 The 1972 Act was enacted with the purpose of having the State take over control of
primary education from local authorities, and thus his appointment, which was initially
by the Zila Parishad, was now by the State government.
 Based on these reasons, it was held to be an office of profit and HC decision reversed.

R. S.C. Raju v. Vyricherla Pradeep Kumar Dev [(1992) 4 SCC 404]

 Appellant was a primary school teacher in an educational institution controlled by the

Integrated Tribal Development Agency (ITDA). Government directed that all ITDA
educational institutions were to now come under the purview of the State government. \
 Appellant applied for nomination to the Assembly and was elected, but the losing
respondent alleged that he held an office of profit.
 HC observed that:
o State government exercised full control over the sanctioning of posts;
o Composition of governing body consisted of officers of the government;
o Entire expenditure met by the government;
o Government fixed the pay scales;
o The A.P. civil services rules were the disciplinary rules applicable to these
institutions;
 On the basis of these, HC held there to be office of profit.
 The court summarized the tests to determine office of profit thus: \
o Power of appointment by the Government and discretion, although mere control
over appointment does not lead to disqualification;
o Payment from government revenues is an important factor, although not a
decisive factor;
o Incorporation as a body corporate does show intent to not make it a statutory
corporation, but mere incorporation cannot satisfy the test as to determine
independence, as it may just be an alter ego of the Government. \
 o True test of determination is the degree of functional and administrative control
on part of the government in the activities of the organization.
 The purpose of the office of profit disqualification is again discussed, and it is largely in
concurrence with earlier cases. Same for the elements of office of profit.
 Court mentions that the HC judge did take relevant tests into consideration while giving
his judgment, but the SC could not agree with him as they did not necessarily believe that
the position he held had any conflict with the work of the appellant as a legislator and his
obligations with the government because of the post he holds.
 Court distinguishes the Biharilal Dobray case, mentioning that in that case, the
Government intended taking complete functional control of the whole field of education
and that was not there in the present case, and because the appellant therein was a
member of the Board who ipso facto became a holder of an Office of Profit.
 The control of the Project Officer over the appellant is higher as compared to the control
of the Government, and this project officer was not a member of Government.
 Thus in this case, the office was held to not be an office of profit.

S. Jaya Bachchan v. Union of India and Ors. [(2006) 5 SCC 266]

 Writ petition under Article 32 filed to challenge the Presidential order disqualifying the
appellant from being a member of the Rajya Sabha under Article 103, in consultation
with the EC as required under Article 103(2). This disqualification was because she was
the Chairman of the U.P. Film Development Council and was appointed by the
Government of Uttar Pradesh to the same.
 Benefits due to her post were:
o Honorarium of Rs. 5000/- per month.
o Daily allowance at Rs. 600/- per day.
o Staff car with driver, telephones at PC and PS, a PA, two class IV employees.
o Bodyguard and night escort.
o Free accommodation and medical facilities to her and her family members.
o Free accommodation even while on travel.
 Petitioner contended that the benefits were only “decorative”, as she did not avail of
them.
 By applying the earlier test in the Shibu Soren case, Court found that there was definite
pecuniary gain from the office so held. Furthermore, it held that what mattered was
whether the office was capable of yielding any pecuniary gain, and not whether any
pecuniary gain was actually obtained.
 Writ petition therefore, dismissed.

T. Divya Prakash v. Kultar Chand Rana and Anr. [(1975) 1 SCC 264]

 Respondent was elected to the Himachal Pradesh State Assembly in March 1972, and
appellant filed a complaint contending that the respondent held an office of profit and
was thus disqualified under Article 191(1)(a). The HC dismissed this complaint.
  The respondent was the Chairman of the Board of School Education of Himachal Pradesh
under Section 18 of the HP Board of School Education Act, 1969 and under Section 3,
the Board is constituted by the Government.
 Question only of profit, as the fact that it is an office under the State government is not
contested.
 No salary to the respondent by virtue of his position, and furthermore, there was no real
profit as the respondent could not sue for any possible scale of pay he was to receive in
an honorary capacity by virtue of his position.
 Thus, the appeal was dismissed.

U. P.A. Sangma v. Pranab Mukherjee [(2013) 2 SCC 239]

 The petitioner submitted that the respondent’s election to the post of President of India
was to be declared void merely because at the time of being elected, he held an office of
profit by virtue of being the Chairman of the Indian Statistical Institute (Kolkata) and the
Leader of the House in the Lok Sabha, and was disqualified under Article 58(2).
 In the majority opinion given by Kabir C.J., it was held that the ISI Chairman position
was one of an office of profit, but the mere characterization would not necessarily entail
that there was any profit out of that position. There was no pecuniary gain out of that
office and that office was further not capable of actually yielding any pecuniary gain.
 Furthermore, the respondent had submitted his resignation with respect to the LS position
before standing for the presidential elections.
 In any case, the Constitutional scheme under Article 102(1) does not contemplate being a
Minister of Union or State as being an office of profit, and explicit mention is found
regarding the same. Furthermore, it could not be accepted that the ISI Chairman post was
such that bye-laws of society prevented him from resignation and that he had to continue
against his own free will.
 Based on these factors, the petition was dismissed.

VIII. DEFECTION (SCHEDULE X)

A. Kihoto Hollohan v. Zachillhu and Ors. [(1992) Supp (2)SCC 651]

 The constitutionality of the Constitution (Fifty-Second Amendment) Act, 1985

challenged in this writ petition before the Supreme Court.
 The majority opinion was given by Justice Venkatachalaiah.
 With respect to the curtailment of the jurisdiction of the Courts under Article 136, 226
and 227 under paragraph 7 of the Amendment, the majority held that no further change to
the actual provisions was necessary as ‘in effect’, the jurisdiction of the Court under these
Articles was curtailed.
 The power of the High Courts was to be determined by the State Legislature however,
thus further ratification under Article 368(2) was necessary.
  However, excluding para 7, the rest of the Amendment does not become invalid as one
provision which required Art. 368(2) ratification was not ratified, for that the test of
competence of legislature was to be applied.
 The difference between substantive and procedural limitations of the legislature was
spoken about, and substantive limitations were those which restrict the field of exercise
of amending power, while procedural limitations were those which impose restrictions
regarding the mode of exercise of the amending power itself.
 Limitation requiring special majority was a procedural limitation, and the doctrine of
severability was spoken about, wherein the court only struck down a certain severable
part of the Amendment which violated Part III or the Basic Features of the Constitution.
 Para 7 was held to be severable, and only the provisions of para 7 which required
ratification by the States under Article 368(2) were held to be invalid.
 In a subsequent challenge to Para 6(1) of the Amendment, the Court held that the
provision is valid insofar as it seeks to keep finality of the decision with the
Speaker/Chairman.
 This provision was held to not preclude judicial review and it was held that the Tenth
Schedule, by creating a new disqualification criterion for MPs and MLAs, did not seek to
create a non-justiciable constitutional area.
 The Speaker/Chairman acting in this capacity of Para 6(1) was held to be of the nature of
a tribunal. This para does not remove the jurisdiction of the Courts under Article 136, 226
and 227, but it does limit the scope of its jurisdiction in the particular matter of defection.
 Paragraph 2 of the Tenth Schedule was further held to not violate the freedom of speech,
freedom to vote and conscience as guaranteed under Article 19(1)(a). Furthermore, it
does not violate the freedom of speech under Articles 105 and 194 as even then, the
freedom of speech is not absolute.
 Political parties function on the basis of shared beliefs, and freedom of members to vote
independently and of their own volition undermines the credibility of the party by
tarnishing its public image and popularity while also taking away public confidence
which is the source of the party’s very survival.
 Thus, on the basis of these contentions, the Amendment was upheld and para 7 was the
only paragraph struck down.

IX. TAXATION POWERS (FREEDOM OF TRADE, COMMERCE AND INTERCOURSE)

A. Atiabari Tea Co. v. State of Assam [(1961) 1 SCR 809]

 The constitutionality of the Assam Taxation (On Goods Carried by Roads or Inland
Waterways) Act was challenged in this case.
 It appears that the appellants are growers of tea in West Bengal or in Assam and carry
their tea to the market in Calcutta from where the tea is sold for consumption in the
country or is exported for sale out of the country.
 The Act was passed by the Assam Legislature and by virtue of this Act, there was a tax
levied on the goods which were transported by road or through inland waterways in the
 State of Assam. While the appellants paid the tax, the same was challenged under Article
226 before the Assam HC who dismissed their writ petition.
 The primary question in this case pertains as to whether the impugned Act violate the
provisions under Part XIII of the Constitution, which constitute Trade, Commerce and
Intercourse.
 The Court in this case, held that taxation simpliciter is not within the terms of Article
301.
 In this regard, the initial Section 297 of the GOI Act, 1935 was also discussed.
Furthermore, the power of taxation as envisaged under the Union List under Entries 30
and 89. However, taxes on goods and passengers carried by road or by inland waterways
covered under Entry 56 of List II.
 Parts XII and XIII supposed to be self-contained in their respective fields.
 The comprehensive and inclusive sense of freedom of trade, commerce and intercourse as
being free from taxation was pointed out by the appellants, and the Court rejected this,
maintaining the stance that it is impossible to think that the framers intended absolutism
in free trade, to the extent that it would be absolutely free of any taxation whatsoever.
 Taxation is discussed in this case not necessarily as a restriction, but as a wherewithal to
improve the conditions of the roads or waterways the tax in the present case sought to
impose tax on.
 The arguments in favour of taxation were:
o Taxation implies it necessarily being in public interest;
o The power to govern is vested in the government and in governance, taxation
needs to perhaps be imposed on a wider array of fields, and the entries in the three
legislative lists would be redundant if taxation simpliciter was within the ambit of
Article 301.
o If the appellants’ arguments accepted, then every tax would have to go through
the gamut of Article 303 and 304, and this would retract from the limited state
sovereignty as envisaged by the Indian Constitution.
o Taxes would become justiciable and the Legislature would have to satisfy the
Courts regarding every tax, a course that would affect the division of powers and
which was sought to be prohibited in India.
o Taxation on movement of goods and passengers is not necessarily an impediment.
 Article 301 only sought to crease out customs or practices which were necessarily
impediments to free flow of trade and commerce. Article 304, while recognizing the
power of a State to tax, necessarily requires that the goods taxed be manufactured or
produced within the State.
 On a fair construction of the provisions in Part XIII, there were certain points made out
by the Court:
o Trade, commerce and intercourse was not absolutely free, and was subject to
taxation by Parliament or State Legislatures;
o Freedom under Article 301 does not mean freedom from taxation simpliciter, but
it does mean freedom from any tax which would necessarily impede the free flow
of trade in the State;
o The freedom envisaged in Article 301 is subject to non-discriminatory restrictions
imposed by Parliament or State Legislatures (Article 302);
 o In cases of emergency or scarcity, even discriminatory taxation may be made by
the Parliament or State Legislatures (Article 303(2));
o Reasonable restrictions may be imposed by State Legislatures in public interest
(Article 304(b));
o Non-discriminatory taxes may be imposed on goods coming in from other States,
if similar taxes are imposed on goods manufactured or produced within the State
(Article 304(a));
o Restrictions imposed by existing laws have continued, insofar as the President has
not directed otherwise (Article 305);
 The argument of discrimination was also made, as it was only tea carried in chests and
jute carried in bales which were taxed. To this, the Court replies that the Court’s position
was not to explain to the Legislature any alternative methodology or any form or variety
of tax that was to be imposed. This was entirely at the Legislature’s discretion.
 THE MAJORITY DECISION: Beyond paragraph 26.
 The majority however, maintained the positivist stance that Article 301 had a non
obstante clause, which read, “Subject to the other provisions of this part, there shall be
free flow of trade, commerce and intercourse throughout the territory of India.” And thus
the majority maintained that it was only to the other provisions of Part XIII that Article
301 was subject.
 Part XII restrictions could not be said to be included within the ambit of Articles which
could restrict free trade and commerce.
 Article 302 allows for the Parliament to impose restrictions on inter-State trade,
commerce and intercourse along with intra-State trade, commerce and intercourse.
Article 302 was read as an exception to Article 301, in the sense that it allowed for
restrictions in case it was necessary in public interest.
 Article 303(1) was then referred to, which prohibited Parliament from making any
discriminatory law preferring one State which would hamper the flow of free trade.
Article 303(2) is the exception, in and how it allows for discriminatory treatment in case
of scarcity of certain goods or in case of emergency.
 It is urged that Article 303(1) explicitly makes references to the Entries in the Seventh
Schedule which refer to trade and commerce, indirectly providing the scope of Article
301 itself as being restricted to those Entries alone.
 Article 304(a) provides that foreign State goods be treated the same way that intra-State
goods are. Furthermore, Article 304(b) provides the manner of said treatment. Thus,
Article 304 is treated as another exception to Article 301.
 Three conditions when passing an Act under Article 304(b):
o Prior sanction of the President;
o The Legislation must be in public interest;
o The Legislation must impose restrictions which are reasonable;
 The general agreement therefore is that taxing laws do come under the ambit of Article
301, but it is also agreed that it is only those taxes which directly and immediately
impede the free flow of trade and commerce which come under the ambit of this Part.
 Legislations under Entry 56, List II were held to be subject to the provisions of Part XIII.
 The Act was thus held to have directly violated free trade and commerce, and as it did not
comply with Article 304(b), it was held to be void and unconstitutional.
V. Automobile Transport Ltd. v. State of Rajasthan and Ors. [(1963) 1 SCR 491]

 In this case, the Court which was of a larger Bench as compared to the Atiabari Tea Co.
case, agreed with the earlier judgment, hereby making one clarification that regulatory
measures or compensatory taxes would not come under the purview of Article 301.
 In the present case, the Motor Vehicles Tax in Rajasthan which was the tax so
challenged, was upheld as it was of the nature of a compensatory tax and thus, not subject
to the Part XIII restrictions.
 Justice Subba Rao, in his part of the judgment, concurred with Justice Das, who gave the
first part of the judgment. To summarize his points:
o Article 301 declares a right of free movement of trade without any obstructions by
way of barriers, inter-State or intra-State, or other impediments operating as such
barriers.
o The said freedom is not impeded, but, on the other hand, promoted, by regulations
creating conditions for the free movement of trade, such as, police regulations,
provision for services, maintenance of roads, provision for aerodromes, wharfs
etc., with or without compensation.
o Parliament may by law impose restrictions on such freedom in the public interest;
and the said law can be made by virtue of any entry with respect whereof
Parliament has power to make a law.
o The State also, in exercise of its legislative power, may impose similar
restrictions, subject to the two conditions laid down in Article 304(b) and subject
to the proviso mentioned therein.
o Neither Parliament nor the State Legislature can make a law giving preference to
one State over another or making discrimination between one State and another,
by virtue of any entry in the Lists, infringing the said freedom.
o This ban is lifted in the case of Parliament for the purpose of dealing with
situations arising out of scarcity of goods in any part of the territory of India and
also in the case of a State under Article 304(b), subject to the conditions
mentioned therein. And
o The State can impose a non-discriminatory tax on goods imported from other
States or the Union territory to which similar goods manufactured or produced in
that State are subject.
 On the basis of these reasons, the appeal was dismissed in this case and the tax, being of a
compensatory nature, was upheld.
W. State of Mysore v. H. Sanjeeviah [(1967) 2 SCR 361]

 Mysore Forest Act, 1900, by virtue of Section 37, the transit of timber, firewood,
charcoal and bamboos from all lands was regulated.
 Respondent filed a petition under Article 226 contending that the provisos added to allow
this regulation was in violation of the freedom of trade, commerce and intercourse under
Article 301.
 Article 304 not applied in this case, as it was a pre-constitutional executive order that led
to these rules, and it was thus, a case wherein the enactment of the two provisos clearly
affects the flow of trade, commerce and intercourse within the territory of India.
 On this basis and applying the Automobile Transport Co. case, the appeal was dismissed
and the regulations were held to be invalid.

X. Jindal Stainless Steel Co. v. State of Haryana and Ors. [(2006) 7 SCC 271]

 This case pertained to the answering of three important questions:

o Whether the levy of non-discriminatory tax violated Article 301 of the
Constitution?
o What were the tests to determine the existence of regulatory or compensatory tax?
o Whether the taxes which were regulatory or compensatory would be saved under
Article 304A or Article 304B?
 The Court answered only the first question in depth, as the answer de facto answered the
other two questions.
 The Court examined the history of Article 13 of the Constitution as well as purposive
interpretation of the Constitutional provisions. Furthermore, the nature of the Commerce
clause was examined, relying on the Constituent Assembly debates.
 India was examined as a peculiar centripetal federation, wherein federalism was a basic
structure and the purpose behind the Commerce clause was to preserve economic unity.
 The Court further mentioned, “The meridian divides India into the economically affluent
West and the poor East.” If the question came up as to why states should help those other
poor states, it would destroy the federal structure of the Constitution.
 The idea behind Arts. 301 through 304 were described as being to prevent hostile
discrimination against goods from different states as well as to prevent protectionism.
 The Australian change in jurisprudence, based on the Krayfish case of Cole v. Winfield
was analyzed, wherein the Australian Court looked at the nature of the prohibition in that
case and thought it to be conservationist and discriminatory, thus showing the application
of Section 92 of the Australian Constitution.
 Prevention of discrimination was held to be the purpose of Article 301, and the
compensatory and regulatory tax theories were rejected.
 Compensatory and regulatory tax were held to have no basis in the Constitution, and they
were all judicial constructs. Thus, the compensatory and regulatory tax test was
completely overruled.
 The Court further held that the specific tax entries in List I and List II were the sources of
power, not the general entries in the Constitution.
 Furthermore, the Court mentioned that Articles 304A and 304B had to be read
disjunctively, and the non obstante clause was only with respect to Article 304A.
 A tax, violative of Article 304A could thus not be saved under Article 304B, and taxation
simpliciter was not within the contemplation of Part XIII. ‘Free’ did not mean free from
taxation.
 Te discriminatory and non-discriminatory tax distinction was upheld, and discriminatory
taxes were held to be violating Article 301, while non-discriminatory taxes were held to
not do so.
  The earlier Jindal case, the Atiabari and Automobile Transport Company cases were
overruled.
 The tests of ‘Direct and Inevitable effect’ test as well as the ‘Compensatory and
regulatory tax’ test were overruled, and Entry Tax was upheld.
 Article 304A frowned upon protectionist discrimination in a hostile sense, but the
exception to this was in case for a limited period in a specific industry, limited period
protectionism was sought.
X. PARLIAMENTARY PRIVILEGES,

A. P.V. Narasimha Rao v. State (Through CBI) [(1998) 4 CC 626]

 In the General Elections for the Tenth Lok Sabha, the Congress (I) emerged as the
winning party with P.V. Narasimha Rao as the Prime Minister.
 In 1993, a no confidence motion was moved against the minority government of P.V.
Narasimha Rao, and the support of 14 members was needed to defeat this motion.
 Four members of the Jharkhand Mukti Morcha (JMM) and six members of the Janata
Dal, Ajit Singh (JD, AS) group voted against the no confidence motion and Ajit Singh, a
JD, AS member abstained from voting. Thus, the no confidence motion was defeated as
there were 251 members in support but 265 against.
 In a complaint filed by a member of the Rashtriya Mukti Morcha, it was alleged that in
July 1993, there was a criminal conspiracy pursuant to which bribes were given to
members to vote against the no confidence motion. It was further stated that P.V.
Narasimha Rao was a party to this conspiracy.
 The Special Judge, Delhi took cognizance of the case and prosecution was initiated but
the appellants filed a petition before the Delhi HC seeking to quash these petitions, but
the petition was dismissed. The SC then heard this on appeal.
 The Supreme Court had to answer two pertinent questions, which were grounds for
challenge in this case:
o By virtue of the provisions under Article 105, are they immune from prosecution?
o In any event, can they be prosecuted under the Prevention of Corruption Act,
1988?
 As per Justices Babu and Bharucha, the freedom of speech under Article 105(1) is
different from that in Article 19, in the sense that it is wider in ambit. Furthermore, it is
stated that this freedom of speech is put affirmatively under Article 105(1) but is re-
asserted negatively in Article 105(2), which protects him from liability for things said in
the House.
 The right to vote is recognized as an extension of the freedom of speech itself, and by
virtue of this right, members can vote for or against a motion. What is protected by this
right is things said and votes cast, things not done or not said (silence or abstaining from
voting) cannot be said to be protected.
 Furthermore, in regard to the expression “in respect of” as can be seen in the words of
Article 105(2), it protects MPs in Court from proceedings related to, or concerning, or
having a nexus with, anything said or any vote given in Parliament.
 In this regard, the Court understood that all the MPs, having received the bribe, actually
voted against the no confidence motion but Ajit Singh abstained from voting.
 The Court further held that in order to freely participate in Parliamentary proceedings, the
MPs have to be given freedom from all civil and criminal liability arising from anything
said, or any vote that is given in Parliament. Thus, while the Court says that if the
allegations are true, they do present a sad status of government and a clear betrayal of the
people they so represent, as they have helped keep a government in power, it says that the
are nonetheless entitled to the protection under Article 105(2).
 It was therefore held that all the alleged conspirators, apart from Ajit Singh who
abstained from voting in Parliament, must be given the immunity under Article 105(2).
Ajit Singh was however, not given said immunity.
Y. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee [(1961) 3 SCR 486]

 The appellant was a medical practitioner, elected to the WB Legislative Assembly.

 The appellant, in January 1954, gave notice of his intention to ask certain questions in the
Assembly. However, in February 1954, these questions were disallowed in accordance
with the rules of procedure and conduct of the Assembly itself.
 The appellant published these disallowed questions in a local magazine called “Janamat”,
issue of Feb. 1955. The respondent, whose conduct was the subject-matter of the
disallowed questions, in July 1955, filed a complaint under Section 500 of the IPC
against the appellant, alleging that the false scandalous accusations were published by
him with the intent of having said accusations be read by the public at large, thereby
causing a loss of reputation to him.
 Relying on the Suresh Chandra Banerjee case, the HC held that the appellant was not
entitled to claim privilege here, in spite of being a government servant. He filed
subsequent cases, claiming Article 194 protection and when the HC rejected this over and
over, he filed an appeal before the SC under Article 136.
 This case pertained as to whether the words “anything said, or any vote given by him”
had to necessarily be within the four walls of the Assembly.
 The Court answers all questions in the negative and, placing reliance on May’s
Parliamentary Practice as well as the laws in England pertaining to privileges in the
House of Commons, the Court answers the question pertaining to Article 105(3) in the
negative as well.
 Thus, the Court herein mentions that the legal position is undisputed unless absolute
privilege could be proven on part of the appellant, and the appeal was accordingly
dismissed.
Z. Pandit M.S.M. Sharma v. Sri Krishna Sinha (The Searchlight Case) [AIR 1960 SC

1186]

 The petitioner, a journalist by profession and Editor of Searchlight magazine, impugned

the validity of the proceedings and published in the magazine, parts of a speech which
were sought to be expunged from the record by the Speaker of the House.
 The argument was that there was a freedom of speech and expression given to the media
in the country and this freedom could not be taken away or curtailed.
 Furthermore, the Bihar Legislature in this case was contended to not have any power to
curtail the publication of proceedings of the House in any manner whatsoever.
 The Court herein held that the petitioner did not have the rights under Article 19 that he
claimed he had.
 Secondly, the validity of the proceedings inside the House of Legislature cannot be called
into question merely because a procedure established by law was not followed. In this
regard, the Court mentions that Article 212 provides a clear answer, wherein it is
explicitly provided for that the conduct of business within the House is not subject to
scrutiny by the Courts.
 The Courts have always recognized the difference between want of jurisdiction and
improper or irregular exercise of jurisdiction. Mere noncompliance with rules of
procedure cannot warrant an Article 32 writ petition.
 As regards the last limitation argument made by the petitioner in this case, the Court held
that the contention was baseless as prorogation did not amount to dissolution.
 On the basis of this, the writ petition was dismissed.
AA. In re, Keshav Singh [AIR 1965 SC 745]

 This case was under the advisory jurisdiction of the Supreme Court under Article 143(1),
as it pertained to substantial questions of public importance, which were necessary to be
answered by the Court in expedient public interest.
 On 14th March 1964, a reprimand was issued by the U.P. Legislative Assembly to Keshav
Singh, a resident of Gorakhpur, for having committed contempt of the house and breach
of privilege of Narsingh Narain Pandey, a member of the House.
 A petition was filed in the Lucknow Bench of the Allahabad High Court, contending that
firstly, his imprisonment was made after the reprimand by the House and was thus illegal
and secondly, because the imprisonment was made without giving Keshav Singh due
hearing and thus, the imprisonment as such was against the principles of natural justice.
 The High Court admitted the matter and a two-judge bench of the Allahabad HC allowed
the writ petition, which was adjudicated ex parte as the respondents’ lawyer never
showed up. As a result, Keshav Singh was released.
 Instead of filing a return on the application made by Keshav Singh pertaining to his
allegedly illegal imprisonment, the Assembly initiated contempt proceedings against the
two judges who gave the order for Keshav Singh’s release, as well as Keshav Singh and
the Advocate who appeared on his behalf, on 21st March, 1964. ‘
 The Assembly held them guilty of contempt and immediately, Article 226 proceedings
were initiated at the Allahabad HC and a full bench of 28 judges allowed the writ
petition. Similar action was taken pertaining to the Advocate who appeared for Keshav
Singh. ‘
 The President referred this case to the Court for answers to five pertinent questions:
o Whether the judges of the Lucknow Bench of the Allahabad HC had a right to
hear and allow the petition which led to the release of Keshav Singh?
o Whether Mr. Solomon, who was the Advocate on behalf of Keshav Singh in the
writ petition, had committed contempt by appearing in Court to defend him?
 o Whether it was competent for the UP Legislative Assembly to call the two
Hon’ble judges and the Advocate under contempt proceedings?
o Whether the full bench of the Allahabad HC was allowed to pass an interim order
restraining execution of the Speaker’s orders?
o Whether a judge who entertains petitions challenging the validity of contempt
proceedings initiated against him commits contempt of legislature and if so, is the
legislature allowed to initiate action against him for contempt?
 Herein it was held that the provision of Article 19(1)(a) does not control the actions under
Article 105 or Article 194 of the Constitution.
 It is also observed by the Courts that Articles 105 and 194 are not made subject to the
provisions of Part III. The Court however, makes reference to the Searchlight case where
it was also held that Article 21 applies where the Legislature has exercised powers under
Article 194(3) of the Constitution.
 The question regarding whether the petition could be admitted was answered in the
affirmative, as the Court says that the judges had the right to hear the case and decide on
the basis of its merits as to whether the case was admissible or not. As to whether the
Court was authorized to release a person who was punished for contempt, the Court
refuses to answer this question, saying that it was not the purpose of the reference.
 To answer the second question, the Court held that the two judges and the Advocate
appearing on behalf of Keshav Singh did not commit contempt of court by actually taking
part in the court proceedings initiated through the habeas corpus petition.
 On the basis of the facts and circumstances, it was held that it was not competent for the
Assembly to call for the production of the two judges and the Advocate in the Assembly,
for contempt proceedings.
 Furthermore, it was held that it was competent for the full Bench of the Allahabad HC to
hear and pass interim orders restraining the Speaker and other members of the Assembly
from implementing the orders of the UP Legislative Assembly.
 Lastly, as regards the question as to whether a judge of the High Court is competent to
pass an order in dealing with a petition challenging the arrest, imprisonment or any order
of punishment meted out to him, the Judge was held to be competent to do so.
BB. Raja Ram Pal v. Hon’ble Speaker, Lok Sabha [(2007) 3 SCC 184]

 There was a telecast on 12th December, 2005 based on sting operations conducted by the
channel, depicting 10 Lok Sabha MPs and one Rajya Sabha MP as accepting money,
directly or through middlemen, as consideration for raising certain questions in the House
or for otherwise espousing certain causes for those offering the money.
 The enquiries were made and the evidence against the 10 MPs was incriminating, and the
report was laid on the table of the House and a motion was adopted by the Lok Sabha to
expel the 10 MPs and a similar process was adopted in the Rajya Sabha.
 The questions before the Supreme Court in this case were threefold:
o Whether the SC has the jurisdiction to decide the content and scope of powers,
privileges and immunities of the Legislature and its members?
o Do the powers and privileges of the Legislature include the power of expulsion of
its members?
 o If the power of expulsion exists, is it subject to judicial review and if so, what is
the extent of such judicial review?
 Here the Court mentioned the difference between disqualification and expulsion, here
mentioning that disqualification struck at the very root of the candidate’s qualification
and renders him unable to occupy a Member’s seat, while expulsion merely meant that
even though he was elected by the people, the House believes that he is unworthy of
membership.
 The Court analyzed the provisions under Articles 102, 103, 104 and 105, along with
Articles 14, 20 and 21, to find that there was no violation of Part III rights in the present
matter. The majority was of the view that proper opportunity to explain and defend was
given to the MPs, and the Court impliedly accepted that it had the right to adjudicate and
consequently, that the power of judicial review of contempt or privilege actions existed.
 Furthermore, as no violation of due process had taken place the Court upheld the action
taken by the Lok Sabha in expelling the 10 MPs and found no merits in the arguments of
the petitioners.
XI. PARLIAMENTARY QUALIFICATIONS.

A. Manoj Narula v. Union of India [(2014) 9 SCC 1]

 This case was a writ petition filed under Article 32, concerning the appointment of
certain members to the Council of Ministers, despite their involvement in serious and
heinous crimes.
 It is envisaged that the Constitution hopes to move away from elected representatives
who are involved in serious crimes or heinous offences, in that it desires complete
decriminalization of politics.
 The Justice J.S. Verma Committee Report on Criminal Law has been highlighted, as it
proposed the insertion of Schedule I to the Representation of Peoples Act, 1951 and this
Schedule was to define heinous offences.
 Also, the Committee Report suggested that a stance be adopted wherein if there has been
cognizance of the crime by the Court under Sections 190(1)(a), (b) or (c), the person
would be disqualified under the proposed Amendment to Section 8(1) of the said Act.
 In cases of conviction, the disqualification was to operate for a period of six years after
the date of release and in case of acquittal, the disqualification was from the date of
cognizance to the date of acquittal.
 The Court further mentions that the scheme of disqualification as is in the present RP Act
also envisages that a person convicted for certain categories of criminal offences is unfit
to be a representative of the people.
 The Doctrine of Implied Limitations was addressed, wherein the Court mentioned that
the question before the Court is whether the implied limitation can be put on the
President following the advice of the Prime Minister under Article 75(1), so that the
Prime Minister is constitutionally prohibited from giving advice allowing a person facing
trial for criminal offences to be instated as a member of the Council of Ministers.
Reading such an implied limitation would tantamount to creating a new disqualification
pertaining to the induction of people to the Council.
 The Court in this regard, held that where there is no constitutional provision or statutory
embargo which warrants the exclusion of such members to Parliament, State Legislatures
or the Council of Ministers in either, such a limitation could not be read into Article 75(1)
or Article 164(1) of the Constitution.
 Next, the principles of constitutional silence or abeyance was discussed by the Court, as a
modern Constitutional law methodology to eliminate casus omissus in law. To whether
this principle can be applied to read a disqualification for the purpose of advancing
constitutional culture, the Court says that it cannot be done.
 The Court then addresses the doctrine of constitutional implications, addressing the
argument that the words “on the advice of the Prime Minister” have to be construed as
containing the implied limitation of him not advising the inclusion of someone who has
allegedly committed heinous offences.
 To this, the Court mentions that the principle of constitutional implications is founded on
a rational inference from the words so given in the text, and the concept of legitimate
deduction is always discussed. The Court herein opined that the proposition as suggested
would not be a logical inference from the text of the words, and thus could not be
accepted by the Court.
 The Court further addresses the constitutional morality, good governance and
constitutional trust, and holds them as important pillars in the framework of
Constitutional law.
 In conclusion, the Court mentions that trust was placed in the Prime Minister to act in a
responsible manner by keeping this particular thing unwritten. Thus, it is the
responsibility of the Prime Minister to choose a responsible and capable government and
ministers to surround himself with.
 However, no additional disqualification could be read into the existing ones and the writ
petition was therefore dismissed.
 JUDICIARY

I. SUPREME COURT: CONTEMPT OF COURT

A. C.K. Daphtary v. O.P. Gupta [(1971) 1 SCC 626]

 The respondent in this case got a pamphlet published, which contained allegations against
Justice Shah, who was accused of colluding with the Government of U.P. and of flouting
the Constitution directly only to feed his own bias.
 When a contempt of court proceeding was initiated against him by the BCI President, he
went on to apologize, but later continued the alternative and additional defence to
contend that there was no contempt of court.
 The argument regarding whether the law relating to contempt of court was a law under
Article 13 itself, was dismissed on the ground that contempt of court was held to be a
reasonable restriction under Article 19(2).
 The plea of Article 105(2) as taken by the respondent in this case as also rejected as there
was no express authority on part of the Lok Sabha and there could not be said to be any
implied authority which allowed him to take unilateral action.
 Article 129 gave the Court the power to punish for contempt, and Article 142(2) further
extended this power by allowing the Court to investigate in matters of contempt.
 Furthermore, it was a reasonable restriction in public interest, perfectly warranted by
Article 19(2).
 The Court further mentions that providing evidence justifying said contempt would not
be allowed as this would have the detrimental effect of:
o Taking away the integrity of the judiciary itself by lowering their image in the
eyes of the people;
o Encouraging disappointed litigants to come and abuse the judge who delivered the
verdict because the losing side is always disappointed, and allowing contempt
evidences would necessarily allow abuse to the judge;
 Even though under Article 142, the Court determined its procedure, the Court mentioned
that said procedure would have to be fair, just and reasonable.
 Lastly, the Court mentions that the apology which was couples with fresh abuses could
hardly be considered and the respondent was given two months’ punishment for contempt
of court.

CC. P.N. Duda v. P. Shiv Shanker and Ors. [(1988) 3 SCC 167

 In this case, the respondent who at the time, was the Minister of Law, Justice and
Company Affairs delivered a speech in the Bar Council of Hyderabad.
 In his speech, he made statements against the Supreme Court which were derogatory to
the dignity of the Court, attributing to the Court partiality towards economically affluent
 sections of the people and had used language which was extremely intemperate,
undignified, and unbecoming of a person of his stature and position.
 The Court herein mentions that any criticism about the judicial system or the judges
which hampers the administration of justice or which erodes the faith in the objective
approach of judges and brings administration of justice into ridicule must be prevented.
 While criticisms of judgments is allowed, the motives of judges have to be kept free from
discussion.
 Furthermore, what the Court said was that when the Minister spoke of the Supreme Court
having “unconcealed sympathy for the haves”, it led to a contrary interpretation of Article
31 which warranted the 1st, 14th and 17th Amendments, this as such did not affect the
administration of justice.
 When he made further statements about how it took twenty years for agrarian reforms
and alleviation of poverty itself, along with how the Kesavananda and Golaknath cases
were criticized in the context of the R.C. Cooper case, the Court stuck to its earlier
opinion that fair criticism of judgments was allowed.
 The statement, “Anti-social elements i.e. FERA violators, bride burners, and a whole
horde of reactionaries have found haven in the Supreme Court” seemed rather
intemperate to the Court as the judgments were pronounced in accordance with the laws
and any criticism of the same would be criticizing the laws, pointing out loopholes in the
legislation rather than the judgment of the Courts.
 On the basis of this, the Court dismisses the petition pertaining to contempt of court.

XII. TRIBUNAL JURISDICTION

A. Jaswant Sugar Mills Ltd. v. Lakshmi Chand and Anr. [AIR 1963 SC 677]

 In a labour dispute pertaining to the dismissal of sixty-three workmen from a sugar

production factory, the Regional Conciliation Officer, Meerut who granted permission for
the dismissal of eleven, but who held that the other fifty-two only had a passive role in
the dispute and thus, dismissal could not be warranted.
 The appellant company then went to the Labour Appellate Tribunal (hereinafter “LAT”),
appealing against the decision of the Conciliation Officer, but the LAT refused to
consider the appeal as the Conciliation Officer was not an authority within the meaning
of Section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950.
 The Company therefore, filed an SLP before the Supreme Court contesting both, the
order of the Conciliation Officer as well as the refusal of the LAT in considering their
appeal.
 The Court mentions that it is not merely judges or tribunals who necessarily take judicial
decisions, it is any authority. The line which separates judicial decisions from
administrative decisions is that a judicial authority has to act judicially, i.e. by hearing
both sides and considering the implications from the point of view of justice and not from
the point of view of how it affects the workers or citizens.
 To make a decision or act judicial, the criteria to be followed are:
 o If it is in substance a determination upon investigation of a question in the light od
pre-existing legal rules;
o It declares rights upon any person or imposes obligations upon any party affecting
their civil rights;
o That the investigation is subject to certain procedural attributes comparable to that
of a Court, in hearing both parties and giving a decision objectively;
 On the basis of these criteria, the Court held that the decision of a Conciliation Officer
has to be looked at from these angles and thus, is not purely administrative.
 On the basis of the relevant orders and Acts which established the post of Conciliation
Officer, it was established that there was no procedure to be followed for him, there was
no formal sitting, no formal pleadings, he could not compel attendance of witnesses, nor
is he restricted to making an enquiry into all the evidences.
 The Officer has to undoubtedly act in a judicial capacity based on his role under Clause
29 of his authorizing Act, but this could not make him a “Tribunal” for the purposes of
Article 136.
 Furthermore, as Section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act,
1950 was clear in allowing appeals to the LAT only from the Industrial Disputes
Tribunal, the Conciliation Officer could not be a Tribunal for this purpose.
 On the basis of these reasons, the Court dismissed both appeals.

DD. Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593]

 This case, which pertained to a labour dispute, was taken into Arbitration which was in
accordance with the Arbitration Act.
 In this case, there was no prior enquiry conducted, so the tribunal had the duty to conduct
and enquiry of its own and on the basis of the evidences so gathered, decide not only
whether a prima facie case was made out, but also whether the charges have been made
out.
 Therefore, under Section 11-A of the Act that allowed for the tribunal’s jurisdiction, the
tribunal was allowed to conduct a de novo inquiry in order to determine guilt and
punishment, and the arbitrator had full authority to adjudicate.
 There was a two-part test to determine judicial authority:
o Body constituted by the State.
o Conferred with judicial powers and functions by the State.
 On the basis of these facts, the tribunal’s jurisdiction was upheld.

EE. L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]

 The important questions pertaining to the jurisdiction of tribunals in the wide array of
Constitutional Law were considered in this case.
 The questions considered by the Court in this case are as follows:
o Whether the exclusion of jurisdiction as contemplated by Article 323A(2)(d) and
Article 323B(3)(d) in respect to matters under Article 323A(1) or Article 323B(2)
respectively, hamper the power of judicial review as exercisable by the High
 Courts under Articles 226/27 and the Supreme Court under Article 32 of the
Constitution?
o Whether the Tribunals, established under Article 323A or Article 323B, have the
power to test the Constitutional validity of an enactment/statute?
o Whether the Tribunals can be said to be effective substitutes of the High Courts in
the exercise of their power of judicial review? If not so, what changes need to be
made to make them conform to their funding objectives?
 The Central Administrative Tribunal, which was established by the Administrative
Tribunals Act, 1985, and the Statement of Objects of the Act in itself mentioned that the
purpose of establishment of these Tribunals was to on the one hand, alleviate the burden
of the various Courts involved and on the other hand, to simultaneously provide speedy
justice to the aggrieved party.
 The Court further discusses the duty of the superior Courts in maintaining the
Constitutional rule of law, as well as the fact that the salaries, allowances, tenure etc. are
determined by the Constitution, in order to ensure complete transparency while
discouraging legislative or executive encroachment into the domain of the judiciary.
 In lieu of these extra functions of superior courts under Articles 32, 226 and 227 of the
Constitution, along with how the Courts have the duty to ensure that the decisions of
inferior courts and tribunals do not fall short of legal correctness and judicial
independence.
 Consequently, judges of the Tribunals cannot be considered effective substitutes for the
judges of a superior court.
 Similarly, the powers of the High Court under Articles 226 and 227, as well as the power
of the Supreme Court under Article 32 cannot be curtailed by a Tribunal established
under Article 323A or Article 323B. Both powers can co-exist, but not to the exclusion of
the HCs and the SC.
 The power of the HCs to exercise judicial superintendence over all lower courts and
tribunals was held to thus, be a basic feature of the Constitution that could not be done
away with.
 Thus, clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent that it
excludes the jurisdiction of the High Courts and the Supreme Court, are unconstitutional.
The actual matter of the cases was thus sent to a Division Bench for further adjudication.

XIII. SPECIAL LEAVE TO APPEAL (ARTICLE 136)

A. Konkan Railway Corporation Ltd. v. Rani Construction Pvt. Ltd. [(2002) 2 SCC 388]

 The Court had, in an earlier case, come to the conclusion that any person acting as an
arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 acted in an
administrative capacity and thus, this could not attract the provisions of Article 136 of the
Constitution.
 The question before the Court in this case is similar: Whether an arbitrator acting under
Section 11 of the Arbitration Act was subject to the jurisdiction of Article 136 of the
Constitution?
  An order setting aside or refusing to set aside an order by an arbitral tribunal under
Section 34 is appealable under Section 37, as also awards pertaining to the jurisdiction of
the tribunal, under Section 16.
 The questions for consideration in the case was also:
o What was the nature of arbitrator appointment by the Chief Justice or by any other
person under Section 11(6) of the Arbitration Act?
o Even if the said order is to be administrative in nature, what is the recourse
available in case the request for change in arbitrator appointment is denied by the
CJI in any instance?
 Article 136 grants special leave to appeal against: (a) A judgment, decree, determination,
sentence or order; (b) passed or made by any Court or tribunal in the territory of India.
 The Court put this forward concisely by mentioning that in order for the invocation of
Article 136, the order had to be adjudicatory in nature based on the hearing of rival
contentions of both parties.
 On the basis of this, the Court decided that as the CJI was not a tribunal for this purpose
as his orders were not adjudicatory in nature, there was no jurisdiction of the Court under
Article 136 in this case.

FF. S.B.P. and Co. v. Patel Engineering Ltd. [(2009) 10 SCC 293]

 This was a special leave to appeal based on the order of the High Court which dismissed
a writ petition which challenged the appointment of Justice M.N. Chandurkar (Retd.) as
the third arbitrator in the case between the appellants and the respondent.
 In this second case, the Court mentioned that there was no provision in case of a
substitute arbitrator or in case the arbitrator refused to arbitrate.
 Furthermore, there was no provision in the arbitral agreement regarding the same either.
 On the basis of these factors, the Court applied the case of Yashwith Constructions v.
Simplex India Piles Ltd., wherein it was held that a provision in the Arbitration Act
cannot be read as filling an omission unless the provision explicitly seeks to eliminate
said omission.
 Thus, the Special Leave for Appeal was allowed and the Konkan Railway case was
overruled.

XIV. REVIEW JURISDICTION AND CURATIVE PETITION

A. A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531]

 Find from someone.

B. Rupa Ashok Hurra v. Ashok Hurra and Anr. [(2002) 4 SCC 388]

 The question before the three-judge Constitution Bench of the Supreme Court in this case
was: whether an aggrieved person is entitled to any relief against a final judgment/order
 of the Supreme Court, after dismissal of the review petition, under Article 32 or
otherwise.
 The question as to whether a writ petition of certiorari could be entertained in one High
Court, against the order of another High Court, or in the Supreme Court, against the order
of a High Court or a previous Supreme Court order, is answered in the negative.
 This was because it was a fortiori of the Court itself that the order of the Court was to
have a certain sense of finality. Furthermore, it is a settled principle of law itself that a
Court order under Article 32 cannot violate any of the Fundamental Rights under Part III
of the Constitution.
 The next and more important question in the case pertains to the validity of curative
petitions.
 The concern of the Supreme Court in rendering justice is not less important than the
principle of finality as attached to these judgments itself.
 The situations may arise where, because of human fallibility, a rarest of rare case arrives
wherein the Court may have to consider reviewing its own decision and for this purpose,
review jurisdiction of the court has been granted under Article 137 itself.
 This however, in the case of curative petitions, has to also be considered from the point of
view that a curative petition may be exercised in the form of a second review petition,
even after the dismissal of the first review petition.
 In order to prevent this, certain circumstances were laid down by the Court which would
be the circumstances which would warrant curative petitions:
o Violation of the principles of natural justice, in and how he wasn’t a party to the
litigation but the judgment adversely affected his interests or if he was a party to
the litigation, he was not served a notice and the matter proceeded as though he
was given a notice; and
o Where in the proceedings a judge failed to disclose a bias that existed and this
bias adversely affected the judgment which affected the petitioner;
 The petitioner would further have to specify in the curative petition that the grounds
mentioned above were included in the review jurisdiction which was dismissed. The
curative petition would have to contain the signature of a senior Advocate who would
certify as to the fulfilment of all requirements.
 At this juncture, the judgment would have to be placed before the three senior-most
judges as well as the judges who passed the order under review. If a majority of the
judges on this panel conclude that the matter has to be re-heard, the petition would be put
forward before the same bench (as much as possible).
 In the event that the curative petition is found to be vexatious or without merit, exemplary
costs would be imposed on the petitioner.
XV. APPOINTMENT OF JUDGES

A. Supreme Court Advocates-on-record Association v. Union of India [(1993) 4 SCC 441]

 A public interest writ petition was filed in the SC by the Lawyers’ Association raising
several issues concerning the judges of the SC and the HCs. This petition was considered
by a bench of nine judges. ‘
 The majority opinion, delivered by Justice J.S. Verma, answered the question pertaining
to primacy of the Chief Justice’s opinion by emphasizing that the question had to be
considered in the context of achieving the constitutional purpose of selecting the best
suitable for composition of the Supreme Court.
 Referring to the consultative process envisaged under Article 124(2), the Court
emphasized that this procedure indicates that the Government does not enjoy primacy or
absolute discretion in the matter of appointment of Supreme Court judges.
 The Court, when considering the position of the Chief Justice with respect to appointment
of judges, noted that the opinion of the Chief Justice should have the greatest weight, and
that the selection should be the result of a participatory consultative process in which the
executive should have the power to act as a mere check on the exercise of power by the
Chief Justice of India, to achieve the constitutional purpose.
 The Court mentioned that the use of the word ‘consultation’ instead of ‘concurrence’
indicated that absolute discretion was not to be given to any one, not even the CJI.
 The Court further clarified that the primacy of the opinion of the Chief Justice of India
meant the primacy of his opinion in consultation with his senior colleagues who are
required to be consulted by him. Therefore, the meaning of “opinion of the Chief Justice”
is reflective of the opinion of the judiciary.
 The Court laid down the following propositions pertaining to the appointment of judges
of the Supreme Court:
 Initiation of the proposal for appointment of a Supreme Court judge must be by
the Chief Justice.
 In exceptional cases alone, on disclosure of reasons as to why a person
recommended was not suitable for appointment, the recommendation made by the
CJI may not be accepted. However, if the stated reasons are not accepted by the
CJI and other SC judges consulted, the appointment should be made as a healthy
convention.
 No appointment of an SC judge can be made by the President unless it is in
conformity with the CJI’s final opinion formed in the aforementioned manner.
 The advice given by the Council of Ministers in the matter of appointment of a
SC judge, is to be given in accordance with Article 124(2) as interpreted by the
Supreme Court.
 All consultation with everyone involved, including the judges, must be in writing
as the expression of opinion in writing is an inbuilt check and ensures due
circumspection.
 Appointment of the CJI ought to be the senior-most judge of the Supreme Court
considered fit to hold the office. Doubts about the fitness of a Supreme Court
 judge to hold the office of CJI is what alone may permit a departure from the
long-standing convention of appointing the senior-most judge as the CJI.
 Inter se seniority among HC judges and their combined seniority on an all India
basis should be given due weight when making appointments from HC judges to
the Supreme Court. Similar to the point about the SC, unless there is a reason to
justify departure, order of seniority must be maintained between them while
making their SC appointment.
 The main purpose was to reiterate the importance of minimalizing political influence in
the judicial process.
GG. In re: Special Reference 1 of 1998 [AIR 1999 SC 1]

 This decision arose because of an advisory opinion as demanded by the President under
Article 143. In this opinion, the SC has laid down certain clarifications in regard to
appointment of SC judges.
 In making his recommendation for appointment to the SC, the Chief Justice ought
to consult four senior-most puisne judges of the SC. Thus, the collegium to make
recommendation for appointment should consist of the Chief Justice and four
senior-most judges.
 The opinion of all members of the collegium in respect of each recommendation
should be in writing.
 The view of the senior-most SC judge who hails from the HC where the person
recommended comes from must be obtained in writing for consideration by the
collegium.
 If a majority of the collegium is against the appointment of a particular person as
a judge, the appointment shall not be made. However, if even two judges of the
Court express strong views for good reasons, that they are against the
appointment of a particular person, that person should not be appointed.
 The rule of seniority was now made subject to certain exceptions:
 HC judge of outstanding merit can be appointed as a SC judge regardless
of his standing in the seniority list.
 HC judge may be appointed as a SC judge for good reasons among other
several judges of equal merit, if for example, the region in which his
parent HC is situated is not represented on the Supreme Court Bench.
 Thus, the responsibility of appointment was taken away from the Central Executive and
placed in the hands of a collegium of judges. The sphere of consultation was expanded,
as the earlier consultation was only of a collegium of the CJI and two senior-most judges
of the SC.
 Thus, this case formalized the process of appointment of judges to the SC as each judge’s
opinion was given equal value and had to be obtained in writing.
HH. Supreme Court Advocates-on-record Association v. Union of India [(2016) 5

SCC 1]

 This case pertained to a writ petition which challenged the constitutionality of the 99 th
Amendment which created the National Judicial Appointments Commission (hereinafter
“NJAC”).
 The Attorney-General, on part of the Union of India, contended that this case pertained to
a reconsideration of the Second Judges’ case, which was basically emphatically put
forward and expanded in the subsequent Third Judges’ case in 1999. He continued by
mentioning that all that the Union of India had to prove herein was that the independence
of the judiciary, which forms part of the basic structure of the Constitution, is not
compromised by the Constitution (99th Amendment) Act, 2014.
 In para 29, the AG contended that there must be a check on the powers and discretion of
the judiciary in making its own appointments and the independence of the judiciary,
which is a basic feature of the Constitution, remains irrespective of provisions like Article
125 and 130.
 Article 125 allows for Parliament to determine the salaries, while Article 130 requires
approval of the President in order to shift the bench of the Supreme Court. Furthermore,
Article 140 grants supplementary power.
 The contention by the respondents that the Executive had no role to play anymore in the
appointment of judges to the Supreme Court was rejected, and the Court mentioned that
under the Memorandum for Procedure that had been published by the Ministry of Law,
Justice and Company Affairs on 30th June, 1999,

 MISCELLANEOUS HEADS

I. AMENDMENT POWERS (BEYOND KESAVANANDA BHARTI)

A. Indira Nehru Gandhi v. Raj Narain [(1975) 2 SCC 159]

 This case pertained to the Constitutional validity of clause 4 of the 39 th Amendment of

1975.
 This Amendment sought to do three things:
o To withdraw the election of the Prime Minister, President, Vice-President and
Speaker of the Lok Sabha from the scope of the original jurisdiction of the
Supreme Court;
o To void the Allahabad HC decision declaring Indira Gandhi’s election to the Lok
Sabha as void;
o To exclude the Supreme Court’s jurisdiction to hear any appeal.
 Clause 4 of this Amendment, which proposed the aforementioned points, was challenged
as destroying the basic feature of the Constitution insofar as it contained a gross
interference with the judicial process.
 This was the first case in which the basic structure doctrine as had been propounded in
the Kesavananda Bharati case, had to be applied.
 Clause 4 was held to be unconstitutional, and was regarded as violating three “essential
features” of the Constitution. According to MATTHEW J., the Amendment destroyed the
basic feature of resolution of election disputes by ascertaining the adjudicative facts and
applying the law to determine the real representative of the people. Thus, free and fair
election in its true essence, was violated.
 CHANDRACHUD J. found that it further violated the principles of separation of powers, as
a purely judicial function was sought to be exercised by the Legislature. Also, he
contended that equality of status and opportunity, which was another essential feature,
was violated as there was no rational reason for creating a privileged regime for the
election of the Prime Minister.
 Furthermore, it was contended that the basic principle of natural justice in the form of
audi alterem partem was violated by this Amendment, as it gave no chance of hearing to
the person challenging the Prime Minister’s election.
 It was held that democracy was a basic feature, and the retrospective application of the
Amendment as sought by the Legislature would sound the death knell of democratic
structure.
 RAY C.J. emphasized that the principle of rule of law was also violated, as even if
judicial power was exercised by the Legislature, it had to be for some purpose. KHANNA
J. concurred and further elaborated on the violation of democratic principles of free and
fair elections.
 Another question which emerged from this case was whether it was only constitutional
amendments which were subject to the restriction of the basic structure doctrine or
whether ordinary legislation was as well.
 CHANDRACHUD J. explained this by saying that constitutional amendments were of a
higher status and had to be judged against the backdrop of basic features of the
Constitution. But for ordinary legislation, it had to only be tested against the competence
of the legislature enacting the said legislation. If the basic structure doctrine was applied
to all legislation, it would denude the power of Parliament and State Legislatures to enact
any laws.
 The judges here also held that judicial review was not a basic feature and an amendment
could exclude judicial review, and this was also true for the principles embodied under
Articles 14, 15 and 16. Both these propositions are however, overruled and judicial
review and equality are basic features of the Constitution.
II. Minerva Mills v. Union of India [AIR 1980 SC 1789]

 In this case, the question of application of the basic structure doctrine again came up, in
light of the changes brought about by the 42 nd Amendment, which inserted clauses 4 and
5 to Article 368, introduced by Section 55 of the said Amendment.
 As pertaining to the instant case, the petition was filed in the Supreme Court challenging
the validity of taking over the management of the mill under Section 18-A of the
Industrial (Development and Regulation) Act, 1951. These clauses had to be challenged
as the 39th Amendment had put the Nationalization Act in Schedule IX.
 The true object of this Amendment was seen as wanting to remove the limitations
imposed on Amendment power by the Kesavananda case.
 Clause 4 of the amended Article 368 sought to deprive the courts of their power to call in
question any Amendment to the Constitution, while clause 5 sought to empower
Parliament to exercise its constituent power without any limitation whatsoever and it
even empowered Parliament to “repeal the provisions of the Constitution”.
 The Court held both clauses to be void and unconstitutional. With respect to clause 4, the
Court held that depriving the power of judicial review of the Courts would amount to
making Fundamental Rights “a mere adornment” as they would be rights without
remedies and went on further to state that a controlled Constitution would become
uncontrolled.
 Clause 5 allowed Parliament to abrogate democracy itself and could also deny
expression, belief, faith, liberty of thought as well. The Court held in this regard, “the
power to destroy is not a power to amend.” Limited amending power was one of the basic
features of the Constitution, but this amending power could not be expanded to destroy
other basic essential features.
 The Court further opined that the goals set out in Part IV were to be achieved without
abrogating any of the rights under Part III. To give absolut4e primacy to either would be
to violate the harmony and balance set out in the Constitution.
 The Amendment also sought to abrogate Article 14 and 19 rights in case of laws
described under Article 31C, and this was further struck down by the Courts as it gave
the State Legislatures an almost unfettered discretion to deprive the people of their civil
liberties.
 BHAGWATI J. although upheld the validity of the amended Article 31C, but put forward a
proviso that that the Court would have to adjudicate upon whether there was a “real and
substantive connection” between the kaw and a Directive Principle and whether the
predominant effect of the law was to give effect to the Directive Principle.
 In this formulation however, which was rejected by the other judges, the Court would
have discharged a more oert policy-making role which the courts do not generally relish.
JJ. Waman Rao v. Union of India [AIR 1981 SC 271]

 In this case, the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on
Holdings) Act was challenged. As the Act was placed in the IX Schedule, the
constitutional validity of Arts. 31A, 31B and 31C were also challenged on the ground of
damaging the basic structure of the Constitution.
 The Court, reiterating the judgment in the Kesavananda case, ruled that the First and
Fourth Amendment Acts in 1951 and 1955 did not damage th basic structure of the
Constitution and were valid. The First Amendment introduced Article 31A and Article
31B, while the Fourth Amendment amended the First.
 Article 31A obliterates Article 14, 19 and 31 completely for laws coming under its scope.
In th9is regard, the Court stated that if Article 31A was not enacted, then some of the
main purposes of the Constitution would have been delayed and invariably denied and
that the Constitutional edifice was actually strengthened by the Amendment.
 Article 31B contained a device for saving laws from challenge on the ground of violation
of Fundamental Rights, and had to be read along with the IX Schedule.
 Article 31B was held to be a constitutional device to protect State laws from being
declared void under Article 13(2), and Parliament was empowered to insert a State law
into Schedule IX via Amendment through Article 368.
 All Schedule IX laws were to now receive complete Article 31B protection, but the
Constitutional amendments through which the additions were made to the IX Schedule
after the Kesavananda case were to be valid only if they did not damage the basic
structure of the Constitution. There was no ipso facto protection to these laws.
 Article 31C was held valid to the extent that it had been declared valid in the
Kesavananda case.
KK. I.R. Coelho v. Union of India [(2007) 2 SCC 1]

 In this case, the challenge pertained to the insertion of the Guddalum Janman Estates
(Abolition and Conversion into Ryotwari) Act, 1969 and the West Bengal Land Holding
Act, 1979 into Schedule IX.
 After the Waman Rao judgment explained the scope of Article 31B, the 24 th April, 1973
line was drawn, wherein any Act added to Schedule IX after the Kesavananda judgment
would be judged on the basis of its constitutional validity. The inconsistencies of this
application however, led to this matter coming up before a nine-judge Bench in this case.
 The validity of immunization of legislation from Fundamental Rights by the President
through Schedule IX insertion was reconsidered in this case, and as a corollary, what was
the implication of this on the power of judicial review?
 This was strongly supported by the fact that the number of Schedule IX protected
legislations had increased from 13 to 284, at the point the case was reconsidered.
 In Minerva Mills and Indira Gandhi, Justices Bhagwati and Khanna respectively,
mentioned that only post-Kesavananda Amendments were to be tested based on the basic
structure doctrine as then legislative ignorance could not be claimed. Justice Khanna also
clarified that it was only the right to property that he sought to exclude from the basic
structure doctrine, the other fundamental rights under Part III were to be included within
the doctrine.
 In this case, the Court disagrees with the respondents, hereby holding that the mere
passing of the 29th Amendment in the earlier decisions was not indicative of how
fundamental rights were completely excluded from the ambit of basic structure but that it
was indicative of how some fundamental rights could be.
 When the Minerva Mills case held that the golden triangle, as propounded in the Maneka
Gandhi case, was part of the basic structure doctrine, the corollary was that Article 31B
laws could not be excluded from judicial review.
 The Court thus held that basic rights such as secularism, rule of law and equality, basic
tenets on the basis of which the Constitution was formed, could not be abrogated through
the insertion of laws into Schedule IX to completely absolve the Parliament from making
these laws consistent with Fundamental rights.
 By conferring itself with this power, it was held that Parliament was going beyond the
Constitution and the Parliament was surrounded by limitations as Constituent power
needed a system of checks and balances to function in consonance with principles of
Constitutionalism and rule of law.
 Since the Amendment power under Article 368 could not be made unlimited, it followed
that Article 31B could not confer unlimited power and consequently, the necessity of the
judiciary in this regard is undeniable and basic. Judicial review was held to be part of the
basic structure of the Constitution.
 The ‘essence of rights test’ as evolved in the M. Nagaraj case was not enough to deal
with the question of basic structure, as in this case, it allowed for Part III, in its entirety to
be excluded.
 The ‘rights test’, which said that the actual content of the right had to be looked into and
not just the principle behind the right, was the right test to be applied when deciding how
to apply the basic structure doctrine in this case, where the scope of Article 32, Equality
Code and Freedom Code was being taken away through a single stroke.
XVI. EMERGENCY PROVISIONS

A. A.D.M. Jabalpur v. Shivkant Shukla [(1976) 2 SCC 521] [OVERRULED]

 In this case, the validity of the 38th and 39th Amendments was challenged before the
Court, the proclamation of emergency on June 25th, 1975 and the validity of the arrests
made after that date.
 The State raised a preliminary objection that under Article 359, the enforcement of
fundamental rights could not take place in an emergency and Articles 14, 21 and 22 and
by virtue of Article 358, Article 19 rights had been expressly suspended, and there was a
bar on the respondents in seeking a writ under Article 226 of the Constitution.
 As per RAY CJ, in periods of public danger or apprehension the protective law which
gives security and confidence to every man in times of tranquility, has to give way to the
interests of the State.
 The Courts held that adjudicating the competency, gravity or necessity of suspension of
rights during an emergency was a right which the Court could not comprehend and
hence, could not adjudicate upon.
 He further opined that the law was the positive, State-made law and it had to have some
firmness.
 Furthermore, he held that liberty was confined and controlled by law, and that it was a
regulated freedom.
 As per BEG J, the matters as to national emergency, national security were matters which
were of exclusive legislative competence. Furthermore, he held that suspension could not
mean retention under disguise, and if the fundamental law of the land sought the rights to
be declared suspended, they had to be so.
 With respect to Articles 21 and 22, he mentioned that if the right to “move any court”
under Article 359 had been suspended, then the intention was clearly to ensure that the
enforcement of rights, even those rights under Article 21, was suspended.
 He held that the habeas corpus petition could not be entertained, as the locus standi of the
person had been suspended.
 Furthermore, he sought to mention that Article 21 was the sole repository of personal
freedom and even if not so, the others were Articles 19 and 22, all of which stood
suspended in light of Article 359.
 Lastly, he mentioned that Fundamental Rights were mere enunciations of the natural
rights, and that they were not natural rights guaranteed itself, thus making them
susceptible to suspension.
 CHANDRACHUD J. mentioned that by the suspension of Articles 14, 19, 21 and clauses (4)
to (7) of Article 22, there was a serious inroad on the exercise of personal freedom and
this serious inroad, which allows for detention without trial, now bore the sanction of the
Constitution itself.
 Thus, the appeal was allowed.
 NOTE: This case was only expressly overruled in the K.S. Puttaswamy judgment in
2017.
LL.State of Rajasthan v. Union of India [AIR 1977 SC 1361]

 After the general elections in 1977, the Janata Dal government came into power at the
Centre and the Congress was badly routed in a number of States.
 The Central Home Minister sent a letter to these States, asking them to seek dissolution
from the Governor and obtain fresh mandates from the electorate. The State of Rajasthan,
along with several other States, filed a case which was heard by the Supreme Court in its
original jurisdiction under Article 131.
 It was argued that the letter in question was a prelude to the invocation of Article 356 and
that in substance, the ground on the basis of which the emergency was sought to be
imposed was prima facie outside the purview of Article 356. In substance thus, the suit
was design to forestall the invocation of Article 356 in those States.
 The Supreme Court unanimously dismissed the suit, on the grounds that it could not
interfere with the Centre’s exercise of power on the ground that it embraced ‘political and
executive policy and expediency’, unless a constitutional provision was being infringed.
Article 74(2) disabled the Court from doing so. Article 356(5) further made it impossible
for the Courts to inquire into the same.
 BHAGWATI J. emphasized that the satisfaction of the President under Article 356 was
subjective and could not be tested through objective tests or judicially discoverable and
manageable standards.
 In the instant case, the Court held that the possibility of the governments having lost
majority could not be ruled out, and thus continuing those governments would be purely
“undemocratic in character.”
 The highlight of the decision itself however, was in how in spite of the broad ambit of
Article 356 power, a presidential proclamation could be challenged if it was mala fide, or
on constitutionally or legally prohibited grounds.
MM. S.R. Bommai v. Union of India [(1994) 3 SCC 1]

 In 1989, when a number of ministers of the Janata Dal Ministry, headed by Shri. S.R.
Bommai, defected from the party, the government’s majority was in question. Here, the
Chief Minister proposed the conducting of a floor test but the Governor ignored this
suggestion.
 The possibility of an alternate government was also ignored, and President’s Rule under
Article 356 was declared, as there remained no majority of the party in the government.
 When the validity of this proclamation was challenged before the Karnataka HC, it held
that the proclamation was not free from judicial scrutiny, and that the scope of judicial
scrutiny was to examine whether the disclosed reasons bear any rational nexus to the
action proposed or the proclamation issued.
 However, it held that:
1. The Governor’s report was not held to be irrelevant, Governor’s bona fides were
not questioned and his satisfaction was based on reasonable assessment of facts.
2. Furthermore, it held that recourse to the floor test was neither compulsory nor
obligatory as a pre-requisite to sending the report to the President.
 Similar proclamations were issued in Meghalaya and Nagaland and in the wake of the
Babri Masjid demolition, in Madhya Pradesh, Himachal Pradesh and Rajasthan, as the
 governments of these states were of the BJP, who had come off as sympathetic to the
organizations responsible for the demolition.
 The M.P. High Court even declared the emergency imposition invalid, and this was
unprecedented as no emergency had been invalidated before. Thus, these matters were all
clubbed and brought before the SC.
 On the basis of the consensus among the judges, certain points can be noted in relation to
Article 356(1) and the scope of judicial review thereunder:
1. The President here exercises his power of state emergency on the aid and advice
of the Council of Ministers.
2. The floor test was compulsory and the question of majority had to be decided on
the floor of the House and not in the Governor’s Chamber. In this regard, the
Karnataka HC was overruled.
3. The Governor should explore the possibility of installing an alternative ministry,
when the erstwhile ministry loses support in the House.
4. The validity of the proclamation is justiciable on the grounds as:
 Whether it was issued on the basis of any material at all.
 Whether the material was relevant.
 Whether there was mala fide exercise of power.
 Whether it was based on wholly extraneous or irrelevant grounds.
5. The material had to be of such nature so as to lead a reasonable man to believe
that the Government of the State cannot be carried out in accordance with the
Constitution. On existence of such material, the satisfaction of the President is not
open to question.
6. When a prima facie case against the proclamation is made out, it is the burden of
the Central Government to prove the existence of relevant material warranting the
proclamation.
7. The dissolution of the Legislative Assembly in case of a proclamation is not a
necessary consequence of the proclamation, the Assembly need only be dissolved
when it is found to be necessary to achieve the purpose of the proclamation.
8. Article 356(3) is a check on Article 356(1), as how the proclamation has to be
approved by Parliament within two months, and the President ought not to take
any irreversible action till the emergency proclamation is approved by both
Houses of Parliament. Thereby, the Assembly does not need to be dissolved and if
done so, it would be per se invalid.
9. Once the proclamation is approved by Parliament, and it lapses at the end of six
months or is revoked, neither the dismissed State Government nor the dismissed
State Assembly if dissolved, will revive.
10. If the Court invalidates the proclamation, even if approved by the President, it
becomes invalid and the State Government and State Assembly are restored.
11. Article 74(2) bars inquiry into what advice was tendered by the ministers to the
President, but it does not bar inquiry into the material that led to said advice being
tendered to the President. Even if the material is shown, it does not partake into
the character of advice.
 Applying these principles, the Karnataka, Meghalaya and Nagaland proclamations were
invalidated.
  The Bommai case was celebrated as a marvel in judicial creativity, in and how it
promoted several basic features of the Constitution, such as parliamentary system,
federalism, checks as well as checks and balances. Furthermore, it promoted the
multiplicity of ideologies, a facet India had adopted by being a pluralist democracy.
 Political ideology thus, did not prevail over how different parties could prevail at the
Centre and in the States.
 The application of this case can be seen in Rameshwar Prasad v. Union of India (2006)2
SCC 1, [p 729 MP Jain]
XVII. FINANCIAL RELATIONS

A. Mafatlal Industries v. Union of India [(1997) 5 SCC 536]

 In this case, where there was excess tax payable under the Central Excise Act, the
Supreme Court held that in case of Excise Duty, the burden of tax was shifted from the
taxpayer.
 In such a case, if the taxpayer has already reimbursed himself through the shift of tax
burden, then the court may also refuse refund of tax.
 Similarly, in B.R. Metals v. Union of India, no refund was granted where there was
excess levy of Customs Duty.
NN. Commissioner, Hindu Religious Endowments v. L.T. Swamiar [AIR 1954 SC

282]

 In this case, a tax was levied under Entry 28, List III on the Hindu Charitable Trusts
based on the Hindu Charitable Trusts, 1951.
 The question in this case pertained to whether the said tax was in fact, a tax or a fee
imposed, as this institution, the Hindu Religious Endowments Trusts, did not have the
authority to demand tax.
 The argument was that it was tax, simply because the money so put in was not used for
the sole purpose of maintenance of the religious endowments.
 Tax was herein defined as a compulsory exaction of money by public authority for public
purposes enforceable by law, and it is not payment for services rendered.
 Fees as such, were defined as a special charge rendered to individuals for a service
provided by a government agency.
 Taxes and fees were herein differentiated, as tax was levied for a common burden, but
fees were levied for a special privilege.
 The Court referred to the Australian case of Matthew v. Sugary Marketing Board, to
further describe how compulsion was the essence of tax and that it is statutory power
exercised without taxpayer consent.
 Furthermore, the imposition of tax for public purpose was described, and further
supplemented with how no reference as to what the public purpose was, had to be made.
Furthermore, there was no element of quid pro quo between the taxpayer and public
authority.
 Another differentiating factor was that the fees are uniform but taxes were differentiable,
based on social strata.
 Fees always showed a direct relationship between the fee and the benefit, but this was not
true in case of tax. Furthermore, specific tax grants can be made under Article 282 for
public purposes.
OO. International Airport Authority v. Delhi Municipal Coroporation [AIR 1991

Del. 302]

 The International Airport Authority of India is its own juristic entity, constituted by the
International Airports Authority Act, 1971. It had its own property, fund and employees.
 In this case, it was held that it was a statutory corporation distinct from the Central
Government and accordingly, the property vested in the authority was subject to
municipal taxation.
 The authority could not avail of tax immunity created by Article 285(1) of the
Constitution.
PP.New Delhi Municipal Committee v. State of Punjab [AIR 1997 SC 2847]

 The question in this case pertained to whether the property of the States situated in the
Union Territory of Delhi would be exempt from taxation by the Delhi Municipality
because of Article 289(1).
 A nine-judge bench of the Supreme Court held in the affirmative. The term “Union
taxation” under Article 289 was held to be inclusive of taxes by the New Delhi
Municipality.
 The Court argued that Union Territories were directly under the control of the Union, and
there was no distribution of powers with respect to Union Territories. Therefore, “Union
Taxation” had to include municipal taxes levied by municipalities in the Union
Territories, and it had to be given the widest amplitude meaning.