FEATURES OF INDIAN CONSTITUTION

SOVERIGINITY

Sovereignty is one of the foremost elements of any independent State. It means

absolute independence, i.e., a government which is not controlled by any other
power : internal or external. A country cannot have its own constitution without
being sovereign. India is a sovereign country. It is free from external control. It
can frame its policies. India is free to formulate its own foreign policy.

CASE LAWS :

Hukam Chand Shyam Lal vs Union Of India And Ors on 17 December,

1975

The appellants filed C.W. 470 of 1973 in the High Court praying for a writ to
quash these orders of the General Manager and for restoration of their telephone
connections. This writ petition was heard by a learned Single Judge of the High
Court who allowed the same and quashed the impugned orders and further
directed that the telephones be restored to the appellants.Aggrieved, the Union
of India and other respondents carried a special appeal to the appellate Bench of
the High Court. Before the appellate Bench it was contended that the impugned
action was bad because: (a) no prior notice in regard to the same was given to
the appellants; (b) the Divisional Engineer did not apply his mind and record his
own satisfaction about the existence of any emergency and as such there was a
contravention of Rules 421 and 422 which had to be read together; (c) the
reason given in the impugned order, to the effect, that the appellants were
making illegal and improper use of their telephones inasmuch as they were
transmitting messages and information in regard to satta business which had
been banned, was irrelevant and extraneous to Rule 422 under which the
impugned action has been purportedly taken; (d) the emergency contemplated
by Rule 422 is not the same as a 'public emergency' declared under s.5, but is an
emergency arising out of the breakdown of the telecommunications due to a
technical defect, labour trouble, vis major, fire or the like, the existence of
which was to be established to the satisfaction of the Divisional Engineer and
not any extraneous authority. Stress was laid, in this connection, on the fact that
the word "emergency" in Rule 422 is not qualified by the prefix "public",
instead, the words used are "any emergency"."421. Disconnection of
telephones.-Where the Divisional Engineer is satisfied for reasons to be
recorded in writing that it is necessary to do so, he may, after giving the
subscriber a notice in writing for a period which shall not except in emergent
cases be less than 7 days, disconnect the telephone, and in such case, the
subscriber shall be entitled to refund of rent for the unexpired portion of the
period for which the connection or service was given.Rules 421 and 422 occur
in serial order in a section of Part V under the group caption, "Telephone
connections and other services". Rule 421 requires the Divisional Engineer to
record his satisfaction, supported by reasons, for the proposed disconnection of
the telephone. It further requires that authority to give a notice in writing to the
subscriber. Such notice shall ordinarily be of not less than seven days. In
emergent cases, the period of this notice can be less than seven days. But even
in emergent cases under this Rule, the notice cannot be dispensed with
altogether.Assuming that the General Manager was competent to make an order
under Rule 422, the power has been exercised mainly on a ground which is not
a relevant consideration under this Rule. This ground as recited in the Delhi
Administration Notification of December 4, 1972 and reproduced in the
impugned order of the General Manager, Telephones, is that illegal forward
trading (satta) in agricultural commodities is being practised in a large scale
through the telephones in question at the premises of Coronation Hotel,
Fatehpuri. In other words, the impugned action has been taken chiefly on the
ground that the appellants have been making improper or illegal use of these
telephones. This being the position, the appropriate course to be followed was
that laid down in Rule 427 read with Rules 416 and 421. But this was not done.

N.Nagendra Rao & Co vs State Of A.P on 6 September, 1994

The Judgment of the Court was delivered by R.M. SAHAI, J.- Is the State
vicariously liable for negligence of its officers in discharge of their statutory
duties, was answered in the negative by the High Court of Andhra Pradesh on
the ratio laid down by this Court in Kasturi Lal Ralia Ram Jain v. State of U.P1
while reversing the decree for payment of Rs 1,06,125.72 towards value of the
damaged stock with interest thereon at the rate of 6% granted by the trial court
for loss suffered by the appellant due to non-disposal of the goods seized under
various control orders issued under the Essential Commodities Act, 1955
(hereinafter referred to as 'the Act'). But for determining correctness of the view
taken by it, the High Court granted certificate under Article 133(1) of the
Constitution of India as the case involved "substantial questions of law, of
general importance". Although the claim of the appellant was negatived mainly
on the sovereign power of the State, but, that was only one of the reasons, as the
High Court further held that the goods of the appellant having been seized in the
exercise of statutory power for violation of the Control Orders and the seizure
having been found, by the appropriate authorities, to be valid at least for part, no
compensation was liable to be paid to the appellant for the goods which were
directed to be returned. The further questions, therefore, that arise for
consideration are, whether seizure of the goods in exercise of statutory powers
under the Act immunises the State, completely, from any loss or damage
suffered by the owner. Whether confiscation of part of the goods absolves the
State from any claim for the loss or damage suffered by the owner for the goods
which are directed to be released or returned to it.Since the High Court did not
interfere with the findings recorded by the trial court and decided the appeal as a
matter of law, it is not necessary to narrate the facts in detail, except a gist of it
so far it is helpful in deciding the issues in question. It has been found and is not
disputed that the appellant carried on business in fertiliser and foodgrains under
licence issued by the appropriate authorities. Its premises were visited by the
Police Inspector, Vigilance Cell on 11-8-1975 and huge stocks of fertilisers,
foodgrains and even non-essential goods were seized. On the report submitted
by the Inspector, the District Revenue Officer (in brief 'the DRO') on 31-8-
1975, in exercise of powers under Section 6-A of the Act, directed the fertiliser
to be placed in the custody of Assistant Agricultural Officer (in brief 'AAO') for
distribution to needy ryots and the foodgrains and non- essential goods in the
custody of Tehsildar for disposing it of immediately and depositing the sale
proceeds in the Treasury. The AAO did not take any steps to dispose of the
fertiliser. Therefore, the appellant made applications on 17-9-1975 and 1 AIR
1965 SC 1039: (1965) 1 SCR 375 21-9-1975 before the DRO and on 11-2-1976
before AAO that since no steps were being taken the fertiliser shall deteriorate
and shall be rendered useless causing huge loss to the appellant. Request was
made for diverting the fertiliser either to the places mentioned by the appellant
as the demand was more there or to release it in its favour for disposal and
deposit of the sale price. But neither any order was passed by the DRO nor any
action was taken by the AAO. On 29-6-1976 the proceedings under Section 6-
A of the Act were decided and the stock of horsegram (foodgrain) was
confiscated as the appellant's licence had been cancelled. As regards fertiliser it
was held that the explanation of the appellant for difference in stock was not
satisfactory. The only violation of Control Orders found was improper
maintenance of accounts. In consequence of this finding, rather in absence of
any material to prove that the appellant was guilty of any serious infringement
such as black marketing or adulteration or selling at higher price than the
controlled price, the Collector was left with little option except to direct
confiscation of part of the stock and the rest was released in favour of the
appellant. That the confiscated stock was only nominal, shall be clear from a
comparative chart of the stock seized and released.

SOCIALIST

The word socialist was not there in the Preamble of the Constitution in its
original form. In 1976, the 42ndAmendment to the Constitution incorporated
‘Socialist’ and ‘Secular’, in the Preamble. The word ‘Socialism’ had been used
in the context of economic planning. It signifies major role in the economy. It
also means commitment to attain ideals like removal of inequalities, provision
of minimum basic necessities to all, equal pay for equal work. When you read
about the Directive Principles of the State Policy, you will see how these ideals .

CASE LAWS

Atam Prakash vs State Of Haryana & Ors on 27 February, 1986

The right of pre-emption based on consanguinity has been variously described

by learned judges as 'feudal', 'piratical', 'tribal', 'weak', 'easily defeated', etc.
[Ralwa v. Vaaakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490
and Bishan Singh v. Khazan Singh [1959] S.C.R.

878. Fusing as it does the Lies of blood and soil, it cannot be doubted that the
right is antiquated and feudal in origin and in character. The right is very much
like another right of feudal origin and character which subsisted here and there
in India until recently, particularly amongst the princely families, namely, the
right of succession by primogeniture. It is a well-known characteristic of
feudalism that the control of the most important productive resource, land,
should continue in the hands of the same social and family group. The right of
pre-emption based on consanguinity is a consequence flowing out of this
characteristic. It is entirely inconsistent with our Constitutional scheme. Since
the Forty-Second Amendment, India is a socialist republic in which feudalism
can obviously have no place and must go. Our Constitution now proclaims India
as a sovereign, socialist, secular democratic republic in which the right to
equality before the law and the equal protection of the laws are guaranteed and
all citizens are assured that the State shall not discriminate on grounds only of
religion, race, caste, sex, place of birth or any of them. The citizens are also
assured of the right to move freely through out the territory of India, to reside or
settle in any part of the territory of India and to practise any profession or to
carry on any occupation, trade or business. The State is further enjoined to
direct its policy towards securing that the operation of the economic system
does not result in the concentration of wealth and means of production to the
common detriment. The right to property has also now ceased to be a
fundamental right since the Forty- Fourth Amendment. The question now is
whether this adjunct of the right to property, perhaps perfectly reasonable in a
feudal society, can be constitutionally sustained in a society dedicated
to socialistic-principles. The question has to be examined with reference to
Arts. 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the
Constitution and Art.39(c) of the Directive Principles of State Policy. We think
that the question has to be primarily answered with reference to Art 14.

Now, to the question at issue and first, a word about interpretation. Whether it is
the Constitution that is expounded or the constitutional validity of a statute that
is considered, a cardinal rule is to look to the Preamble to the Constitution as the
guiding light and to the Directive Principles of State Policy as the Book of
Interpretation. me Preamble embodies and expresses the hopes and aspirations
of the people. The Directive Principles set out proximate goals. When we go
about the task of examining statutes against the Constitution, it is through these
glasses that we must look, 'distant vision' or 'near vision'. The Constitution
being sui-generis, where Constitutional issues are under consideration, narrow
interpretative rules which may have relevance when legislative enactments are
interpreted may be misplaced. Originally the Preamble to the Constitution
proclaimed the resolution of the people of India to constitute India into 'a
Sovereign Democratic Republic' and set forth 'Justice, Liberty, Equality and
Fraternity', the very rights mentioned in the French Declarations of the Rights of
Man as our hopes and aspirations. That was in 1950 when we had just emerged
from the colonial-feudal rule. Time passed. The people's hopes and aspirations
grew. In 1977 the 42nd amendment proclaimed India as a Socialist Republic.
The word 'socialist' was introduced into the Preamble to the Constitution. The
implication of the introduction of the word 'socialist', which has now become
the centre of the hopes and aspirations of the people a beacon to guide and
inspire all that is enshrined in the articles of the Constitution -, is clearly to set
up a "vibrant throbbing socialist welfare society" in the place of a "Feudal
exploited society". Whatever article of the Constitution it is that we seek to
interpret, whatever statute it is whose constitutional validity is sought to be
questioned, we must strive to give such an interpretation as will promote the
march and progress towards a Socialistic Democratic State. For example, when
we consider the question whether a statute offends Article 14 of the Constitution
we must also consider whether a classification that the legislature may have
made is consistent with the socialist goals set out in the Preamble and the
Directive Principles enumerated in Part IV of the Constitution. A classification
which is not in tune with the Constitution is per se unreasonable and cannot be
permitted. With these general ennunciations we may now examine the questions
raised in these writ petitions.

Gopal Das vs State Of Assam And Anr. on 15 June, 1954

For the petitioner, it has been argued that the booklet merely discusses the
political philosophy and economic theory underlying socialism; it shows that
capitalism has no progressive role to play in solving the manifold problems that
face the country and that the socialistic order alone can release all the
productive forces of society. The booklet, therefore, according to the petitioner,
appeals to the people to unite to establish a Kisan-Mazdoor Panchayat Raj in
order to emancipate humanity from all its bondage

National Textile Workers vs P.R. Ramkrishnan And Others on 10

December, 1982

Learned counsel has submitted that the Company Law in India is the same as in
the Company Law in England. The law cited may be good law for England with
altogether a different system of economy ; but is abhorrent to India, particularly
after the Constitution (42nd Amendment) Act, 1976, by which the "Socialist"
and "Secular" concepts have been added and incorporated into the Preamble of
our Constitution. Our `Democratic Republic' is no longer merely `Sovereign' but
is also `Socialist' and `Secular'. A Democratic Republic is not Socialist if in
such a Republic the workers have no voice at all. Our Constitution has expressly
rejected the old doctrine of the employers' right to `hire and fire'. The workers
are no longer ciphers ; they have been given pride of place in our economic
system. The workers' right to be heard in a winding-up proceeding has to be
spelt out from the Preamble and Articles 38 and 43-A of the Constitution and
from the general principles of natural justice.
Sonakka Gopalagowda Shanthaveri ... vs U.R. Anantha Murthy And Ors.
on 2 December, 1987

Interim reliefs sought for by the plaintiffs in the suit were to restrain defendants-
1, 2 and 3 from re-publishing the Kannada novel written by defendant-1 under
the title "Avasthe" and to restrain defendants4 to 8 from exhibiting and
screening the picture based on the aforesaid novel going by the name "Avasthe".
It is common ground that the book was published earlier in the year 1978 and it
has reached the stage of second reprint obviously because the book must have
been in good demand by the lovers of Kannada -Literature in this State.
Defendant-1 who has written the book is a well-known litterateur and he has got
to his credit some other works in Kannada language. It is also on record that his
novel 'Samskara' was considered to be a 'classic' in Kannada literature and it has
been translated in various foreign languages. The fact that he is a person of very
high attainments is established by the fact that he is now the Vice-Chancellor of
Gandhi University, Kottayam, Kerala State: It is also not in dispute that
defendant-1 was a close friend of one late Gopala Gowda who between the
years 1950 and 1970 had made a mark as a politician of unquestionable
integrity and strong political convictions. He appears to have taken a very active
part in the social and political life in this State and participated in a Satyagraha
known as 'Kagodu Satyagraha' in his native village to champion the cause of
tenants in Shimoga District as against the landlords who according to him were
coming in the way of the betterment of the conditions of tenants. He was also a
member of the then Mysore Legislative Assembly in the year 1952 and a leader
of the opposition in the then Mysore Legislative Assembly. He was the
President of the socialist party, Karnataka Unit between 1965 and 1967 and he
became the Chairman of the All India Parliamentary Board of
the Socialist Party in the year 1967. He was returned to the Mysore Legislative
Assembly both in the years 1962 and 1967 from the Thirthahalli Constituency.
In 1970-71 he was the President of the Karnataka Samyuktha Vidhayaka Dal
which was a federation of all the opposition parties in the State. It is mentioned
in the plaint that late Gopala Gowda was a well-known freedom fighter and he
was the unquestioned leader of the working class in Karnataka and he was
instrumental in bringing about revolutionary changes to secure ownership fights
to the actual cultivators of the land; that he was a 'fire brand opposition leader
who led an uncompromising life and was especially feared by the Treasury
Benches in the Karnataka Legislative Assembly. He was widely respected by
one and all and especially those who were at the helm of affairs during his
public life; that he was a firm believer in Socialist ideals and was close
associate of late. Dr. Ram Manohar Lohia who championed the cause of the
down-trodden in this country.
SECULARISM

In the context of secularism in India, it is said that ‘India is neither religious, nor
irreligious nor anti-religious.’ Now what does this imply? It implies that in India
there will be no ‘State’ religion – the ‘State’ will not support any particular
religion out of public fund. This has two implications, a) every individual is free
to believe in, and practice, any religion he/ she belongs to, and, b) State will not
discriminate against any individual or group on the basis of religion.

CASE LAW :

Bhupati Nath Smrititirtha vs Ram Lal Maitra on 28 August, 1909

Does the principle of Hindu law, which invalidates a gift other than to a sentient
being capable of accepting it, apply-to a bequest to trustees for the
establishment of an image and the worship of a Hindu deity after the testator's
death and make such a bequest void?

Whether the cases of Upendra Lal Boral v. Hem Chundra Boral (1897) I.L.R.
25 Calc. 405, Rojomoyee Dassee v. Troylukho Mohiney Basset (1901) I.L.R.
29 Calc. 200 and Nogendra-Nandini Dassi v. Benoy Krishna Deb (1902) I.L.R.
30 Calc. 521 have been correctly decided, so far as they lay down the
proposition that a gift to a Hindu deity, whose image is to be established and
consecrated in future, is void?

The disposition which has led to this reference is contained in the will of Umesh
Chandra Lahiri, and is in these terms:

All my properties shall be placed in the hands of Babu Ram Lal Maitra, son of
late Ram Chandra Maitra of Haripur, and the grandsons of my father-in-law,
Sriman Kali Prasanna Maitra, Sriman Chandra Maitra, Sriman Pratap Chandra
Maitra, Sriman Abhay Govinda Maitra, etc., as trustees. They shall according to
the provisions made in para. 4 pay to the persons mentioned in that para., their
monthly allowances, as fixed by me: and shall defray the expenses for the
performance of rites for the spiritual welfare of my mother, full sister and
cousin (father's sister's daughter): and shall pay to my gurudev Srijukta Hari
Nath Bhattacharya of village Purbasthali in the district of Burdwan Rs. 10 as
barshik and to my purohit Srijukta Srish Chandra Chakrabarty of Salkeah Rs. 5
as barshik, and after defraying the expenses for the sheba and worship, during
my turn of the ancestral ijmali bighraha, Iswar Gopal Dev Thakur, Saligram
Narain and Iswar Mahadev Thakur, they shall spend the surplus income which
may be left in the sheba and worship of Kalee after the name of my mother, i.e.,
in the name of Iswar Anandamoyee Kalee. The image of the deity shall be
established and consecrated at my dwelling-house or at Kashee, and in case any
of the persons mentioned in para. 4 dies, then the allowance which I have fixed
for him or her, during his or her lifetime, shall, after his or her death, be spent
for the worship of the said Iswar Anandamoyee Kalee.If the said. Ram Lal
Maitra or any of the grandsons of my father-in-law dies, his heirs shall be
appointed in his place, in order of seniority and act according to the provisions
made in para, (ka) and hold the estate as trustees. If any of those heirs be a
minor, then his lawful guardian shall hold the estate during his minority, and
when he will have attained his majority then the estate shall pass into his hands
as a trustee.The will then goes on to provide that if for any reason the image of
Iswar Kalee Debee is not established and if the income of the testator's
properties is not used for her sheba and worship, then the testator's gurudev and
his sons, grandsons, etc, in succession should get his Rangpur properties and
possess the same in absolute right from generation to generation.The view that
no valid dedication of property can be made by a will to a deity, the image of
which is not in existence at the time of death of the testator, is based upon a
double fiction, namely, first, that a Hindu deity is for all purposes a juridical
person, and secondly, that a dedication to the deity has the same characteristics
and is subject to the same restrictions as a gift to a human being. The first of
these propositions is too broadly stated, and the second is inconsistent with the
first principles of Hindu jurisprudence.

(ii) The Hindu law recognises dedications for the establishment of the image of
a deity and for the maintenance and worship thereof. The property so dedicated
to a pious purpose is placed extra-commercium and is entitled to special
protection at the hands of the Sovereign whose duty it is to intervene to prevent
fraud and waste in dealing with religious endowments: Manohar Ganesh
Tambekar v. Lakhmiram Govindram (1887) I.L.R. 12 Bom. 247 affirmed, on
appeal, by the Judicial Committee in Chotalal Lakhmiram v. Manohar Ganesh
Tambekar (1899) I.L.R. 24 Bom. 50 L.R. 26 I.A. 199. It is immaterial that the
image of the deity has not been established before the death of the testator or is
periodically set up and destroyed in the course of the year.
Indulal Hiralal Shah And Ors. vs S.S. Salgaonkar And Ors. on 24
December, 1982

An interesting question to whether the Educational Institution run by the

petitioner is an Institution run by minority community and, if so, whether the
provisions of Rule 77.3 (3) (vii) of the Secondary School Code violate
fundamental right guaranteed under Article 30(1) of the Constitution of India,
falls for determination in this petitioner.The petitioner No. 5 Prabhubhai
Bhogilal Upadhyaya conducted an educational institution at Khar in Bombay
Known as "Adarsh Bal Mandir". The institution was set up in the year 1938 by
opinion a primary school and in June, 1963, High School was stated. The
institution was conducted on the Gandhian principles of truth and non-violence
and with a view to inculcate in the students Gandhian ideals and Gandhian view
of life. The petitioner No. 5 executed a Deed of Declaration of Trust dated July
12, 1962 and created a Trust in respect of the educational institution and
appointed and petitioner as the trustees. The Trust was registered under the
Bombay Public Trust Act as a Public Trust. In the school run by the Trust, the
students are imparted secondary education and are prepared for the S. S. C.
Examination. Along with the general curriculum, the pubic are also taught to
clean the premises, the class rooms, the sanitary blocks, etc., in order to
inculcate in them the spirit of self-help and social service as taught by Mahatma
Gandhi. The students are also required to undertake training in mass spinning
and the Uniform prescribed is of Khadi both for the students as well as the
teachers. The petitioner No. 5 and the remaining Trustees are Gujarati speaking
and 90% students come from Gujarati speaking families and have Gujarati as
their mother tongue,. About 80% of the teacher and 50% of the members of the
staff are also Gujaratis. The petitioner, therefore, claim that the school is an
educational institution established and administrated by a linguistic minority in
the State of Maharashtra and are entitled to exercise rights conferred by Article
30(1) of the Constitution of India.From the judgment of the Supreme Court, it is
obvious that the submission urged on behalf of the respondents that the
advantage of Art. 30 (1) of the Constitution of India is not available to the
petitioners because the educational institution was not established and
administered for the benefit of the minority community and the aims and objects
of creation of the Trust was not restricted to the members of the minority
community cannot be entertained. A faint submission was advanced that the
Deed of Trust does not prohibit members of the other communities from being
the Trustees and, therefore, it should be held that the school was not established
or administered by the minority community. It is not possible to accede to this
submission. The first five trustees appointed under the deed are all Gujarati
speaking persons and were to hold the office for their lifetime and the Trust
Deed itself provides that in case a vacancy occurs, it can be filled by the
remaining trustees by nomination of a person of their choice. In my judgment,
reading the Trust deed as a whole and taking into consideration the various
circumstances like that all the trustees are Gujarati speaking, the medium of
teaching is Gujarati and 80% of teachers are Gujarati speaking, it is to be
concluded that educational institution of the petitioners is of a minority
community and the petitioners are entitled to the protection of Art, 30 (1) of the
Constitution of India.

T. Srinivasa Rao And Anr. vs Annadhanam Seshacharlu And Anr. on 14

March, 1941

Their Lordships further pointed out in that case that the necessity for the
alienation need not be of the same character as in the case of alienations
for secular purposes, that the Hindu system recognises two sets of religious
acts, one obligatory and the other optional, and that the alienation for both the
sets of acts would be binding on the reversionary heir but only in regard to acts
which are optional, the alienation must relate only to a reasonable portion of the
property. Their Lordships upheld the gift of a small portion of the property for
the offerings to the deity and for the maintenance of the priest charged with the
performance of that duty on the ground that it was a pious act in the Hindu
system.

Commissioner Of Income-Tax vs Upper Ganges Sugar Mills Ltd. on 13

December, 1984

The impugned enactment does not stand in the way of the society establishing
and maintaining institutions for religious and charitable purposes. It also does
not stand in the way of the Society to manage its affairs in matters of religion. It
has only taken over the management of the Auroville by the Society in respect
of the secular matters. This case merely recognises the distinction between
religious and charitable purposes of the society and the other purposes. The
Supreme Court has pointed out that the Act does not stand in the way of the
society managing its affairs in matters of religion.

DEMOCRATIC REPUBLIC

As you have noticed while reading the Preamble to the Constitution, that the
Constitution belongs to the people of India. The last line of the Preamble says
‘…. Hereby Adopt, Enact And Give To Ourselves This Constitution’. In fact the
Democratic principles of the country flow from this memorable last line of the
Preamble. Democracy is generally known as government of the people, by the
people and for the people. Effectively this means that the Government is elected
by the people, it is responsible and accountable to the people. The democratic
principles are highlighted with the provisions of universal adult franchise,
elections, fundamental rights, and responsible government. These you will read
in subsequent lessons. The Preamble also declares India as a Republic. It means
that the head of the State is the President who is indirectly elected and he is not
a hereditary ruler as in case of the British Monarch.

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

The Supreme Court ruled that all provisions of the constitution, including
Fundamental Rights can be amended. However, the Parliament cannot alter the
basic structure of the constitution like secularism, democracy, federalism,
separation of powers. Often called the "Basic structure".
The Kesava Nanda Bharti judgment also defined the extent to which Parliament
could restrict property rights, in pursuit of land reform and the redistribution of
large land holdings to cultivators, overruling previous decisions that suggested
that the right to property could not be restricted. The case was related to the
limitations to the power to amend the Indian constitution.

RULE OF LAW

Keshavan Madhava Menon vs The State Of Bombay on 22 January, 1951

This was the rule of the English common law which was applied in cases of

statutes which were repealed and under this rule all pending actions and
prosecutions could not be proceeded with after the repeal of the law under
which they were started. This rule was however changed by the Inter- pretation
Act of 1889, section 38. Therein it was enacted that unless the contrary
intention appears, no repeal is to affect any investigation, legal proceeding,
including the initiation of criminal proceedings, or remedy in respect of any
such right, privilege, obligation, liability, penalty, forfeiture, or punishment and
any such investigation, legal proceeding or remedy may be instituted, continued
or enforced and any such penalty, forfeiture or punishment may be imposed as
if the repealing Act had not been passed. A similar provision exists in India in
section 6 of the Gener- al Clauses Act of 1868 and 1897. The High Court held
that the provisions of article 13(1) were analogous to the repeal of a statute and
therefore section 6 of the General Clauses Act had application to the
construction of these provisions and that being so, the coming into force of the
Constitution did (1) 180 E.R. 1403; (1830) 6 Bing. 576.

It is admitted that after the 26th January, 1950, there has been no infringement
of the appellant's right of freedom of speech or expression. In September, 1949,
he did not enjoy either complete freedom of speech or full freedom of
expression. It is in relation to the freedom guaranteed in article 19(1) of the
Constitution to the citizen that the provisions of article 13 (1) come into play.
This article does not declare any law void independently of the existence of the
freedoms guaranteed by Part III. A citizen must be possessed of a fundamental
right before he can ask the court to de- clare a law which is inconsistent with it
void ;but if a citizen is not possessed of the right, he cannot claim this relief.
The appellant in the present case was not possessed of any fundamental right on
the day that he published the pamphlet and in these circumstances the question
is whether he can claim protection under the rights guaranteed to him on 26th
January, 1950, for escaping the consequence of his act on any principles of
construction of statutes. Accord- ing to the contention of the learned counsel,
the principles applicable to repealed statutes are not in terms applicable to such
a case, whether they are to be found in the rules of the common law of England
or whether they are contained in the Interpretation Act or the General Clauses
Act. Those rules are applicable to cases either of repeal or to cases of a statute
dying a natural death by efflux of time. None of those however have any
application to the construction of statutes framed in languages like the one
contained in article 13 (1) of the Constitution. Besides the rule of construction
which applies to repealed statutes or to tempo- rary statutes our attention was
not drawn to any other rule of construction under which a person who commits
an offence against an Act during its existence as a law becomes unpun- ishable
on its termination. Both on considerations of con- venience and also on grounds
of justice and reason I am inclined to think that penalties incurred under
a law in force at the time when the act was committed would survive its
extinction so that persons who violate its provisions might afterwards be
punished. Persons who during the contin- uance of a statute have obtained rights
under it cannot be affected by a declaration that the statute with effect from a
certain date will become an inoperative statute. When in the case of repeal of a
statute, which according to Tindal C.J. obliterates it completely from the records
of Parlia- ment as if it had never been passed, the common law rule has been
abrogated by statute, it is difficult to apply that rule on any sentimental grounds
at this date to the case of statutes which are declared void or declared to have no
effect whatsoever after a certain date only. The expres- sion "void" has no larger
effect on the statute so declared than the word "repeal". The expression "repeal"
according to common law rule obliterates a statute completely as if it had never
been passed and thus operates retrospectively on past transactions in the
absence of a saving clause or in the absence of provisions such as are contained
in the Interpretation Act, 1889, or in the General Clauses Act, 1897, while a
provision in a statute that with effect from a particular date an
existing law would be void to the extent of the repugnancy has no such
retrospective operation and cannot affect pending prosecutions or actions taken
under such laws. There is in such a situation no necessity of introducing a
saving clause and it does not need the aid of a legislative provision of the nature
contained in the Interpretation Act or the General Clauses Act. To hold that a
prospective declaration that a statute is void affects pending cases is to give it
indirectly retrospective opera- tion and that result is repugnant to the clear
phraseology employed in the various articles in Part III of the Con- stitution.

Jugalkishore Saraf vs Raw Cotton Co. Ltd on 7 March, 1955

In this judgment in the present case the executing court expressed the view that
the phrase could only mean that the rights had been transferred "on account of
devolution of interest on death, etc". In delivering the judgment in the Letters
Patent Appeal, Chagla, C.J., said:- "The operation of law contemplated by
Order XXI, rule-16 is not any equitable principle but operation by devolution as
in the case of death or insolvency"

The learned Chief Justice does not give any reason for the view expressed by
him but assumes the law to be so. The genesis for such assumption is probably
traceable to the observations of Sir Robert P. Collier who delivered the
judgment of the Privy Council in Abedoonissa Khatoon v. Ameeroonissa
Khatoon(1). The question arose in that case in this way. One Wahed sued his
father Abdool for possession of certain properties. The trial Court dismissed the
suit and Wahed appealed to the High Court. During the pendency of the appeal
Wahed died and his widow Abedoonissa was substituted in the place of Wahed
for prosecuting the appeal. The High Court allowed the appeal and by its decree
declared that Wahed was in his lifetime and those who became his heirs were
entitled to recover the properties in suit. Abedoonissa applied for execution of
the decree for herself and for one Wajed who was said to be the posthumous son
of Wahed born of her womb. Objection was taken, inter alia, that Wajed was
not the legitimate son of Wahed. This objection was overruled and it was held
that Abedoonissa was entitled to execute the decree for herself and as the
guardian of Wajed. Then the judgment-debtor Abdool died. Abdool's widow
Ameeroonissa filed a suit for a declaration that Wajed was not the legitimate
son of Wahed and for setting aside the last mentioned order. Abedoonissa took
the point that the matter was concluded by principles of res judicata. To that
Ameeroonissa's reply was that the proceeding in which the question of the
legitimacy of Wajed was decided was wholly incompetent so far as (1) [1876]
L.R. 4 I.A. 66; I.L.R. 2 Cal. 327.

Bhillai Conductors (P) Ltd. vs Cce on 14 January, 2000

Learned Counsel for the appellants have submitted that there was no finding by
the lower authority that the party had attempted to clear the goods clandestinely
without payment of duty or that they had resorted to non-accountal of the goods
in R.G.I. with intent to evade payment of duty. The order of confiscation and
penalty was passed on the finding that the party had not complied with Rules 53
and 173G of the Central Excise Rules. Relying on the case law cited, the
learned Counsel have, further, submitted that the confiscation of goods and
imposition of penalty on the appellants are not sustainable under Rule 173Q in
the facts and circumstances of the case especially in the absence of finding of
mensrea against them.. Learnd Departmental Representatives have relied on
the case law cited them, in support of the Revenue's stand that the order of
confiscation and penalty under Rule 173Q (1)(b) cannot be interfered with on
the ground of absence of mensrea inasmuch as intention on the part of
manufacturer to evade payment of duty is not necessary for invoking the said
Clause (b). I have considered the rival submissions and the case law cited. I
observe that, as rightly pointed out by the learned Advocates, the lower
authority ordered confiscation of the goods and imposed penalty on the
appellants for contravention of the provisions of Rules 53 and 173G and that
the order was passed under Rule 173Q without specifying any sub-rule or
clause thereof. Which of the two relevant clauses - Clause (b) or Clause (d)
of Rule 173Q(1) did the learned Collector invoke against the party? The
contraventions found by the Collector were of Rules 53 and 173G. A case of
contravention of Rule 53, as I have already found, is covered by Clause (b)
of Rule 173Q(1). A case of contravention of Rule 173G can be covered only by
Clause (d) and not any other clause of Rule 173Q (1). But I have already found
that Clause (d) would cover a case of contravention of Rule 53 as well. It thus
turns out that a composite case of contravention of Rules 53 and 173G can
attract only Clause (d) of Rule 173Q(1). This would lead to the inference that
the lower authority's order of confiscation and penalty was under Clause (d)
of Rule 173Q(1). The said order, unsupported by any finding of mensrea
against the party, cannot be sustained inasmuch as mensrea is sine qua non for
invoking Clause (d), ibid. Even otherwise, as I have already found, the
appellant's case is one covered by Clause (d) read with Clause (b), in
which case too mensrea is indispensable for confiscation and penalty.In the
above view of the matter, the learned Departmental Representatives' arguments
cannot be accepted. The case law cited by them does not seem to be applicable
to the appellants' case covered by Clause (d) of Rule 173Q(1) of the Central
Excise Rules. The case law cited by the learned Advocates, on the other hand,
has been found to be applicable. It supports the counsel's contention that, in the
facts and circumstances of the case and especially in the absence of mens rea on
the part of the appellants, neither the confiscation of the goods nor the
imposition of penalty on them is sustainable under Rule 173Q.

Kaushalya Rani vs Gopal Singh on 19 September, 1963

It has been observed in some of the cases decided by the High Courts that the

Code is not a special or a local law within the meaning of s. 29(2) of the
Limitation Act, that is to say, so far as the entire Code is concerned, because it
is a general law laying down procedure, gene- rally, for the trial of
criminal cases. But the specific question with which we are here concerned is
whether the provision contained in s. 417(4) of the Code is a special law. The
whole Code is indeed a general law regulating the procedure in criminal trials
generally, but it may contain provisions specifying a bar of time for particular
class of cases which are of a special character. For example, a Land Revenue
Code may be a general law regulating the relationship between the revenue-
payer and the revenue- receiver or the rent-payer and the rent-receiver. It is a
general law in the sense that it lays down the general rule governing such
relationship, but it may contain special provisions relating to bar of time, in
specified cases, different from the general law of limitation. Such a law will be
a 'special law' with reference to the law generally governing the subject-matter
of that kind of re- 64-2 S C India/64 lationship. A 'special law', therefore, means
a law enacted for special cases, in special circumstances, in contradis- tinction
to the general rules of the law laid down, as ap- plicable generally to
all cases with which the general law deals. In that sense, the Code is a
general law regulating the procedure for the trial of criminal cases, generally;
but if it lays down any bar of time in respect of special cases in special
circumstances like those contemplated by s. 417(3) & (4), read together, it will
be a special law contained within the general law. As the Limitation Act has not
defined 'special law', it is neither necessary nor expedient to attempt a
definition. Thus, the Limitation Act is a general law laying down the
general rules of limitation applicable to all cases dealt with by the Act; but
there may be instances of a special law of limitation laid down in other statutes,
though not dealing generally with the law of limitation. For
example, rules framed under Defence of India Act, vide S. M. Thakur v. The
State of Bihar(1); Canara Bank Ltd. v. The Warden Insurance Co.(2) dealing
with the special rule of limitation laid down in the Bombay Land Requisition
Act (Bom. XXXIII of 1948). These arc mere instances of special laws within
the meaning of s. 29(2) of the Limitation Act. Once it is held that the
special rule of limitation laid down in sub-s. (4) of s. 417 of the Code is a
'special law' of limitation, governing appeals by private prosecutors, there is no
difficulty in coming to the conclusion that s. 5 of the Limitation Act is wholly
out of the way, in view of s. 29(2) (b) of the Limitation Act. But the question is
whether it can be said that even though the provisions of s. 417(4) are a
'special law', they prescribe a different period of limitation from that prescribed
by the First Schedule of the Limitation Act, because s. 29(2) applies where there
is a difference between the period prescribed by the Limitation Act and that
prescribed by the special law. It is said that the Limitation Act does not
prescribe any period of limitation for an application for special leave to appeal
from an order of acquittal at the instance of a private prosecutor. In the first
instance, the Limitation Act, Art. 157, has prescribed the rule of limitation (1)
I.L.R. 30 Pat. 126.

EQUALITY

Ashok Kumar Gupta , Vidya Sagar ... vs State Of U.P. & Ors on 21 March,
1997

Shri Rakesh Dwivedi, learned Additional Advocate General, contended that the
Micro Lexicon surgery conducted by the counsel for the appellants-petitioners
to make distinction between conclusions and directions requires no detailed
examination. The end result is that five out of eight learned judges, who opined
in the negative on the issued reservation in promotion direction that reservation,
from that date, will continue for five years, while giving liberty to the
appropriate Government to make suitable legislative amendments. In fact,
the right to promotion is a facet of right to recruitment to a post or a office
under the State. No express provision in required in this behalf in Article
16(1) or 16(4) of the Constitution. After the judgment in Mandal's case,
however, the Constitution (77th Amendment) Act was enacted by the
parliament which was come into force w.e.f. June 17, 1995 for which
date Article 16 (4A) was brought into the Constitution. It provides that "nothing
in this Article shall prevent the State from making any provision for reservation
in matters of promotion of any class or classes of posts in the services under
State in favour of Scheduled Castes and Scheduled Tribes which, in favour of
Scheduled Castes and Scheduled Tribes which , in the opinion of the State, are
not adequately represented i the services under the State". Thereby, the
Parliament has re-manifested its policy that right to reservation in promotion is
a part of constitutional scheme or public policy in order to accord socio-
economic empowerment and dignity of person and status to the Dalits and
Tribes. The right to reservation in promotion would be available to Dalits and
Tribes in any, class or class, of post in the state does not get adequate
representation of Dalits & Tribes. This due to the historical evidence that the
Dalits and Tribes are socially, educationally and economically deprived, denied
and disadvantaged sections of the society to make their right to equality
meaningful. They are equally entitled to the facilities and apportunities, by way
of reservation in promotions, and the State in compliance of the mandate of the
Preamble. Article 14, 21, 38, 46 and 335 of constitution, has provided them with
the right to equality of opportunity is all post of classes of posts in the services
under the State. Therefore, the majority section of the society are required to
reconcile to an accept the equal fundamental rights of Dalits and Tribes
guaranteed under Articles 16 and 14 of the Constitution. The right to
reservation in promotions is not an anathema to right to equality enshrined to
other general candidates. The competing rights of both should co-exist and
consistently be given effect by balancing the abstract doctrine of equality and
the distributive justice would filled in the gap. Only upholding of affirmative
action of State by pragmatic interpretation under rule of law would enable the
State to harmonise competing rights of all sections of the society.

Shri Badrinarayan Shankar ... vs Ompraskash Shankar Bhandari on 14

August, 2014

Under the Dayabhaga School of Hindu Law, the daughters also got equal share
along with their brothers. Under the Dayabhaga School property is transmitted
by Succession and not by Survivorship. In this School, a female could be a
coparcener. So far as the Dayabhaga School was concerned, there was no
concept of a coparcenary property and every member of a Hindu family would
hold property in his/her own right and was entitled to dispose of the property as
he/she deems fit either by gift or Will. There was no concept of passing of
property by survivorship nor did a Hindu male in Dayabhaga School
acquire rights to property merely by virtue of his birth. Consequently, women
had a right equal to the rights to that of men belonging to the family in the
Dayabhaga School of Hindu Law. Section 6 of the Act deals with devolution of
interest of a male Hindu in coparcenary property and recognizes the rule of
devolution by survivorship among the members of the coparcenary. The
retention of the Mitakshara coparcenary property without including the females
in it means that the females cannot inherit in ancestral property as their male
counterparts to. The law by excluding the daughter from participating in the
coparcenary ownership not only contributes to her discrimination on the ground
of gender but also has led to oppression and negation of her
fundamental right of equality guaranteed by the Constitution. Having regard to
the need of render social justice to women, the States of Andhra Pradesh, Tamil
Nadu, Karnataka and Maharashtra have made necessary changes in the law
giving equal right to daughters in Hindu Mitakshara coparcenary property. The
Kerala Legislature has enacted the Kerala Joint Hindu Family System
(Abolition) Act, 1975.

Haidar Husain vs Puran Mal And Ors. on 27 March, 1935

On a sale to, or foreclosure by, any of the persons named in Section 12,
no right of pre-emption shall accrue to any person who has an equal or
inferior right of pre-emption.Subject to the foregoing provisions, a right of pre-
emption shall accrue to the persons mentioned in Section 12 whenever a
cosharer or petty proprietor sells any proprietary interest in land: forming part of
any mahal or village in which a right of pre-emption exists, or when any such
interest is foreclosed.The effect of a vendee possessing an equal right of
preemption is declared by Section 10 to be to prevent the-accrual of a right of
pre-emption. It is quite clear that a right of preemption accrues to persons
named in another section if the vendee has no-equal or inferior right of pre-
emption. Section 16 permits a suit for preemption; by the person entitled to
preempt. If there had been nothing in the Act, a right of pre-emption accruing
under Section 11, could be enforced in spite of the vendee acquiring anequal, or
inferior right of preemption after the date of sale; but the legislature thought it
fit to extend protection to the vendee who obtains such right after the date of
sale, and provided in Section 20. No suit for pre-emption shall lie where prior to
the institution of such suit the purchaser has transferred the property in dispute
to a person having a right of pre-emption equal or superior to that of the
plaintiff, or has acquired an indefeasible interest in the mahal which, if existing
at the date of the sale or foreclosure, would have barred the suit.

M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006

Petitioners have invoked Article 32 of the Constitution for a writ in the nature of
certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001
inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995
providing reservation in promotion with consequential seniority as being
unconstitutional and violative of the basic structure. According to the
petitioners, the impugned amendment reverses the decisions of this Court in the
case of Union of India and others v. Virpal Singh Chauhan and others , Ajit
Singh Januja and others v. State of Punjab and others (Ajit Singh-I), Ajit Singh
and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State
of Punjab and others , Indra Sawhney and others v. Union of India , and M. G.
In Ajit Singh (I)2, the controversy which arose for determination was whether
after the members of SCs/STs for whom specific percentage of posts stood
reserved having been promoted against those posts, was it open to the
administration to grant consequential seniority against general category posts in
the higher grade. The appellant took a clear stand that he had no objection if
members of SC/ST get accelerated promotions. The appellant objected only to
the grant of consequential seniority. Relying on the circulars issued by the
administration dated 19.7.1969 and 8.9.1969, the High Court held that the
members of SCs/STs can be promoted against general category posts on basis of
seniority. This was challenged in appeal before this Court. The High Court
ruling was set aside by this Court on the ground that if the 'catch-up' rule is not
applied then the equality principle embodied in Article 16(1) would stand
violated. This Court observed that the 'catch-up' rule was a process adopted
while making appointments through direct recruitment or promotion because
merit cannot be ignored. This Court held that for attracting meritorious
candidate a balance has to be struck while making provisions for reservation. It
was held that the promotion is an incident of service. It was observed that
seniority is one of the important factors in making promotion. It was held
that right to equality is to be preserved by preventing reverse discrimination.
Further, it was held that the equality principle requires exclusion of extra-
weightage of roster-point promotion to a reserved category candidate (emphasis
supplied). This Court opined that without 'catch-up' rule giving weightage to
earlier promotion secured by roster-point promotee would result in reverse
discrimination and would violate equality under Articles 14, 15 and 16.
Accordingly, this Court took the view that the seniority between the reserved
category candidates and general candidates in the promoted category shall be
governed by their panel position. Therefore, this Court set aside the factor of
extra-weightage of earlier promotion to a reserved category candidate as
violative of Articles 14 and 16(1) of the Constitution.
FREE AND FAIR ELECTIONS

Raghbir Singh Gill vs Gurcharan Singh Tohra & Ors on 9 May, 1980

Section 94 cannot be interpreted or examined in isolation. Its scope, ambit and

underlying object must be ascertained in the context of the Act in which it finds
its place, viz., the Representation of the People Act, 1951, and further in the
content of the fact that this Act itself was enacted in exercise of power conferred
by the articles in Part XV titled 'Elections' in the Constitution. An Act to give
effect to the basic feature of the Constitution adumberated and boldly
proclaimed in the preamble to the Constitution, viz., the people of
India constituting into a sovereign, socialist, secular, democratic republic, has to
be interpreted in a way that helps achieve the constitutional goal. Preamble sets
out the political society which we wanted to set up and, therefore, it must be
given all importance. The realisation of goals and vision set out in the preamble
forms the fabric and permeates the whole scheme of constitution. The goal on
the constitutional horizon being a democratic republic, a free and fair election,
a fountain spring and cornerstone of democracy, based on universal adult
suffrage is the basic. The regulatory procedure for
achieving free and fair election for setting up democratic institution in the
country is provided in the Act. Further, Sikri, C.J., Shelat, Grover, Hegde,
Mukherjea & Reddy, JJ. in His Holiness Kesavananda Bharati Sripadagalavaru
v. State of Kerala(1), have in clear and unambiguous terms laid down that
republic democratic form of Government is one of the basic and essential
features of our Constitution. To start with it is necessary to examine the format
and setting of section 94. It finds place in Chapter III headed "Trial
of Election Petitions". A cursory glance at various provisions included in
Chapter III from s. 86 to s. 107 would leave no room for doubt that the Chapter
prescribes procedure for trial of election petitions. Section 87(2) provides for
application of the provisions of the Indian Evidence Act (`Evidence Act' for
short) to the trial of election petitions subject to the provisions of the Act. In
order to unfetter election petitions from the fetter of property laws a far
reaching exception had to be enacted in s. 93 lifting the embargo on the
admissibility of documents for want of registration or inadequacy of
stamp. Section 95 is to some extent in pari materia with s. 132 of the Evidence
Act inasmuch as it does not excuse a witness from answering questions in the
trial of an election petition upon the ground that the answer may incriminate
him or may expose him to any penalty or forfeiture but extends protection in
respect of such answer by giving him a certificate of indemnity in respect of
specified offences. Looking to the format and setting, the question is : does s.
94 create merely a processual inhibition against compelling a witness to answer
a question disclosing for whom he had voted or does the substantive provision,
as was contended on behalf of the appellant, enacted with a view to ensuring
total secrecy of ballot as an integral part of free and fair election vouchsafed by
the Constitution, put a complete embargo on the disclosure for whom the
witness voted ? The larger question whether free and fair elections necessarily
imply secrecy of voting or to ensure free and fair elections in a given situation
secrecy or voting has to yield to the fundamental principle
of free and fair election, will be presently examined. At this stage it is
necessary to confine to the language in which the provision is couched.

Free and fair elections are the mainspring of a healthy democratic life and a

barometer of its strength and vitality. Electoral administra-

tion must, therefore, be free from pressure and interference of the executive and
legislature. It should be able to secure fairness to all parties and candidates. An
awareness by the people of the significance of their vote and the need for them
to exercise it responsibly and an assurance that the voter would be able to
exercise the franchise untrammeled by any fear and apprehension of any
adverse consequence flowing therefrom are the main ingredients of a truly
democratic and successful electoral system (see Elections in India by R. P.
Bhalla). If free and fair election is the life-blood of constitutional democracy
and if secrecy of ballot was ensured to achieve the larger public purpose
of free and fair elections either both must be complimentary to each other and
co-exist or one must yield to the other to serve the larger public interest.

Harbans Singh Jalal, Ex-Mla vs Union Of India (Uoi), Through ... on 27

May, 1997

 On behalf of the Election Commission, a detailed written statement has been

filed. According to them, the Government of Kerala took steps to evolve a code
of conduct for observance by organised political parties prior to the
general election of 1960. The code was discussed and approved by
representatives of leading political parties. In December, 1966, the same code
was adopted at a conference of the representatives of political parties in Kerala.
In 1966, that model code was accepted by the political parties in the States of
Madras, Andhra Pradesh and West Bengal. In 1968, Election Commission
circulated that code to all recognised political parties in India and to the State
Governments. On acceptance by the political parties, it was extended
throughout the country. In 1996, a series of meetings were held by the
Commission with recognised political parties at national and State levels. All
stressed need for observance of the model code of conduct and appreciated the
efforts of the Commission to ensure its compliance. Some of the national parties
even desired that the model code of conduct should be enforced at least three
months prior to the date of election so that the party in power may not misuse
the governmental machinery and its power for its partisan ends. The model code
of conduct was not framed by the Commission unilaterally, but by the
consensus of all political parties. Its implementation is necessary for the conduct
of free and fair election and to ensure that no political party gets an
unfair advantage by virtue of its being in power at the time of election.
Announcement of election is made prior to the issuance of statutory
notification, as contemplated by Section 15 of the Act. If implementation of the
model code of conduct is postponed to the date of notification, it will defeat the
very purpose of the said code of conduct. No political party has, till date, come
forward, to challenge the adherence of the model code of conduct by the
Commission. Challenge now put forth by the petitioner in his individual
capacity is only to be dismissed. If the model code of conduct is not followed
simultaneously with the announcement of election, it would give political
parties and candidates opportunity to violate the same in between the date of
announcement of election and issuance of statutory notification. That will give
opportunity to parties and candidates to resort to evil practices, if not corrupt
practices. If the petitioner's contentions are accepted, Election Commission will
have to remain a mute spectator to blatant violations of the Code of conduct and
the election will turn out to be a farce. It is to avoid such a situation that the
model code of conduct provides that it shall come into force from the date of
announcement of election. Apex Court has, on many occassions, critically
commented on the laxity of the election laws concerning election expenses as
well as misuse of official machinery for the purpose of electioneering dilute the
principle of free and fair election principle of free and fair election which is a
corner-stone of our democracy. Use of official machinery for
furthering election prospectus in some case will fall outside the net of corrupt
practices mentioned in Section 123 of the Act, but will certainly vitiate the
atmosphere of free and fair elections. Philosophy underlying the model code of
conduct is that unfair advantage should not be taken by the ruling party because
of its being in power to tilt the views of the electorate on the eve of election.
The present, writ petition has been filed, this writ petition is aimed at defeating
the purpose of holding a free and fair election. In this view, it is contended that
writ petition has only to be dismissed.

All India Anna Dravida Munnetra ... vs The State Election Commissioner
on 12 January, 2007

According to the petitioners, to vote by using secret ballot with free mind and

without any threat or pressure is the basic ingredient of free and fair election.
To ensure such free and fair election, proper security arrangements should be
made through independent agency, which will not take side of one or other
candidate or political party. It was submitted that on 13.10.06 what happened
was not a free and fair election. Large scale violence took place is evident from
the ballot papers, which were scattered outside almost all the booths, the
number of persons injured and hospitalised, reports published in the different
newspapers with photographs of scattered ballot papers, ballot boxes,
vandalism, photographs of injured persons and there was complete failure of
police power. The Government machinery failed and, thereby, purity
of election was not maintained allowing the rowdy elements to rig the poll by
resorting to bogus voting in favour of the ruling political party. Apart from the
above, large number of unpolled ballot papers with seal or without seal, number
of seals, newspaper reports, photographs and complaints made by one or other
person were produced before the Court to assess the gravity of the situation on
the day.Learned counsel for the petitioners submitted that if the records are
called for and looked into, it will be evident that they do not tally with the
number of votes polled and the number of votes shown to have been casted. In
most of the cases, the Court will find that the signature of the Presiding Officer
or the Polling Officer is not available in the ballot papers and if the signature of
the voters are compared, it will be evident that the genuine voters have not cast
their vote.The State Election Commission, while disputing the allegations had
taken plea that free and fair election had taken place on 13.10.06.
Mr.G.Masilamani, learned senior counsel appearing for the
State Election Commission informed that approximately 55% votes has been
cast by the voters. More than 50% of the voters having turned out to cast their
votes in the total Chennai Municipal area, one could presume
that free and fair election took place and so there was a good turn out of voters.
The learned senior counsel, while requesting the Court to dismiss the writ
petitions, submitted that there is a disputed question of fact relating to fairness
of the election, which cannot be determined under Article 226 of the
Constitution of India. However strong the allegation may be, such allegations
cannot take place of fact; it cannot be presumed, but it has to be proved. The
facts which has not been pleaded properly are required to be proved by the
petitioners in accordance with law, unless it is shown that there is no need to
prove the fact, there being no disputed questions of facts in a particular case. It
is only in a case where no disputed fact is available the Court can decide the
question of law under Article 226 of the Constitution of India. There being a
forum available, such as Election Tribunal, the parties should
raise election dispute before such Tribunal.

Natvarsinh Sardarsinh Mahida vs The Gujarat State Election ... on 19

February, 2021
Free and fair elections are the foundation of every healthy democracy, ensuring
that Government authority derives from the will of the people. But to have
confidence that their elections are truly free and fair, the voters need to be
assured of more than just a well-managed day of polling. Features
of free and fair elections also include a society that encourages citizens to vote,
that provides space for political parties to work and campaign freely and
independent media and civil society to flourish, and that has built a judiciary
capable of acting with impartiality.Thus, having regard to the aforesaid, how
does one expect the Chief Election Commissioner to control the thought
process or the mind of the voters. The paramount duty and function of the
Chief Election Commissioner is to ensure that none of the political parties or
any of the candidates in the fray indulge in any corrupt practices and thereby
influence the mind of the voters. But, it is very difficult to take the view that the
result of the election to Corporations may influence the mind of the voters in
the second part of the election, i.e. Panchayats and Municipalities, and
therefore, with a view to ensure free and fair election, the date of counting and
declaration of the results of the election should be uniform. It is possible, and to
a certain extent quiet obvious, that the result of one part of the election may
have its own influence on the second part of the election, but that by itself
would not be sufficient to say that the election is not free and fair. It all
depends on the individual voters how they look at it. Democracy contemplates
that the election should be free and fair so that the voters may be in a position
to vote for the candidates of their choice. Democracy can indeed function only
upon the faith that the elections are free and fair and not rigged and
manipulated. Free and fair elections require that the candidates and their agents
should not resort to unfair means or malpractices as may impinge upon the
process of free and fair elections. We should also keep in mind that the power
of judicial review should not be exercised unless the administrative decision is
illogical or suffers from procedural impropriety or it shocks the conscience of
the court in the sense that it is in defiance of logic or moral standards but no
standardized formula, universally applicable to all cases, can be evolved. It goes
without saying that when a court is satisfied that there is an abuse or misuse of
power and its jurisdiction is invoked, it is incumbent upon the court to
intervene. It is nevertheless right that the scope of judicial review is limited to
the deficiency in the decision making process and not the decision. When the
Constitution and other governing legislations have already provided a
regulatory procedure for conducting a free and fair election, it is not open to
think otherwise that by mere declaration of the result of the
Corporation election, the same will have an influence on the mind of the voters
in the Panchayat and Municipality election. As regards the framing of schedule
for holding the election, the matter lies within the exclusive domain of
the Election Commission and the same should not ordinarily be interfered with
unless exceptional circumstances indicating the influence
on free and fair election is demonstrated.