Judicial Doctrines Ready Reckoner

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JUDICIAL DOCTRINES
READY RECKONER

INDEX

Sl. No. Topic Page No.

1. Doctrine of Basic Structure 1–3

2. Doctrine of Pith and Substance 4–5
3. Doctrine of Incidental or Ancillary Powers 5–6
4. Doctrine of Colorable Legislation 6–7
5. Doctrine of Harmonious Construction 7–8
6. Doctrine of Eclipse 8–9
7. Doctrine of Severability 9 – 10
8. Doctrine of Separation` of Powers 10 – 11
Doctrine of Essential Religious Practices or Doctrine of
9. 11 – 12
Essentiality
10. Doctrine of Territorial Nexus 12 – 13
11. Doctrine of Proportionality 13 – 15
12. Doctrine of Due Process of Law 15 – 16
13. Doctrine of Judicial Review 16 – 17
14. Doctrine of Pleasure 17 – 18
15. Doctrine of Constitutional Morality 18 – 19
16. Doctrine of Cassus Omissus 19 - 20

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JUDICIAL DOCTRINES

S. Where Can You

Doctrines What is it About? Important Causes
No. Use?
Shankari 1. Recently the
Prasad vs Union passing away of
Of India: the seer
* It was Kesavananda
challenged that Bharati has
Amendment that brought the
takes away the landmark 1973
fundamental litigation into
right of the news.
* According to the
citizens is not
Basic structure
allowed by This doctrine
doctrine and its
article 13. can be used in
interpretation of the
the exam while
Indian Constitution
 It was argued talking about
by the Hon’ble SC,
by UoI that whether the
the parliament cannot
“State” includes Fundamental
alter or destroy
parliament and rights can be
certain basic features
“Law” includes changed as per
in the constitution.
Doctrine of Constitutional the will of the
* The basic features of
1. Basic Amendments. state. Also
the Indian
Structure about the
Constitution have not
* It was held by limitations on
been clearly defined
the Hon’ble SC parliamentary
by the Judiciary.
that ‘Law’ in powers in
* The claim of any
Article 13 is Indian system
specific feature of the
ordinary law and how India
Constitution to be a
made under the is not having
“basic” feature is
legislative parliamentary
determined by the
powers. And sovereignty as
Court on the basis of
therefore, the the judiciary
the cases.
parliament has can check the
the power to legality of the
amend the law passed.
constitution.
2. The discussion
* However, the SC around the
reversed its validity of the
decision in the CAA bill passed
Golaknath case. by the

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Parliament has
Golaknath Vs brought forth
State of Punjab: the question
* The Hon’ble SC whether the bill
ruled that the is not secular
Parliament does which is an
not have the integral part of
power to amend the basic
the Structure
Fundamental doctrine (BSD)
Rights. of the
Constitution.
Kesavananda
Bharat vs State of 3. The Centre in its
Kerala (1973): affidavit has
* The SC for the argued that the
first time ruled Basic structure
that the doctrine is
parliament has applicable only
the power to to the
amend any part Constitutional
of the amendment
constitution, but statutes and not
it cannot alter the ordinary
the “basic laws of the
structure of the parliament.
constitution”.
So, a question
This principle in this regard is
was later before the SC:
reaffirmed in
Indira Gandhi “Whether the
vs Raj Narain BSD is
case (1975), applicable only
Minerva mills for
case (1980). Constitutional
amendments
or for all
laws”?

4. Numerous bills
of the
Parliament are
before the

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scrutiny of the
SC invoking the
BSD:
* Maratha
reservation
issue.
* Reservation of
EWS
* Revocation of
J&K’s special
status
* Farm laws issue
* Electoral bonds
validity
* Rights of
Transgender
persons bill

* The Supreme
Court in 2016
struck down the
National
Judicial
accountability
commission act
as violative of
BSD because it
interferes with
the
independence of
the Judiciary.

* Pith means “true * Prafulla Kumar 1. In questions on

nature” and Mukherjee v. federalism.
Substance Bank of Khulna
means “the most 2. Parliamentary
important or In this case, the laws vs State
Doctrine of
essential part of validity of the laws.
2 Pith and
something”. Bombay Money
Substance
Lenders Act, 3. Providing
* Schedule 7 of the 1946 came to be flexibility in a
Constitution allocates questioned. The rigid federal
Powers and Functions main argument structure and
between the Union here was that the distribution

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and the States. promissory of powers.

notes formed a
* So, what happens if a part of the Each and every
legislation or law central subject law cannot be
passed by a state and not state declared void
intentionally or subject. because it
unintentionally enters infringes on a
into the domain that But on the subject of
is allocated or contrary, the another list. The
exclusive to the Privy Council essence or the
Union? held that true nature of
interpreting the the law must be
* This doctrine of Pith doctrine of Pith taken into
and Substance and Substance, account.
doctrine helps in the act is
examining the true actually a law
nature of a legislation with respect to
and deciding which ‘money lending
list it belongs to, and money
central or state. lenders’ and this
* For e.g.: A state may was clearly a
act on a subject in its state subject,
list and incidentally further the court
enter into a subject in went ahead and
the union list. So, stated an
should the law be important point
declared invalid on that this act was
account that it enters valid even if it
into the territory that entrenched
it should not? upon the subject
* The doctrine of Pith of ‘Promissory
and Substance is note’ which is a
applied here. It tests central subject,
the true essence of thus upholding
the law. Whether the the principle of
law is intended to act the doctrine of
purely within the Pith and
state list subject but Substance.
incidentally enters * State of
into a subject on the Bombay v FN
union list? So the law Balsara:
holds true.
* The doctrine The Bombay
examines the true Prohibition Act

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nature and substance was challenged

of the legislation in on the ground
order to determine that it
which List it belongs accidentally
to. encroaches
upon import and
export of liquor
across custom
frontier – a
central subject.
The court while
upholding the
impugned
legislation
declared that the
Act was in pith
and substance a
State subject
even though it
incidentally
encroached
upon a central
subject.
* This principle is an * State of
addition to the Rajasthan vs G
doctrine of Pith and Chawla AIR
Substance. 1959, the power
* The power to legislate to legislate on a
on a subject also topic includes
includes the power to the power to
legislate on ancillary legislate on an
matters that are ancillary matter 1. Limits on
Doctrine of
reasonably connected which can be ancillary
Incidental or
3. to that subject. said to be legislative
Ancillary
* For example, the reasonably powers of the
powers
power to impose tax included in the Union.
would include the topic.
power to search and
seizure to prevent the * This does not
evasion of that tax. mean that the
However, power scope of the
relating to banking power can be
cannot be extended to extended to any
include power relating unreasonable

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to non-banking extent. Supreme

entities. Court has
* However, if a subject consistently
is explicitly cautioned
mentioned in a State against such
or Union list, it extended
cannot be said to be construction.
an ancillary matter.
* For example, the
power to tax is
mentioned in specific
entries in the lists
and so the power to
tax cannot be claimed
as ancillary to the
power relating to any
other entry of the
lists.
* R.S Joshi v. Ajit * This has the
Mills maxim “What
(1977), the SC cannot be done
observed that directly,
“In the statute of should not be
* This Doctrine is also
force, the done
called “Fraud on the
colorable indirectly”.
Constitution”.
exercise of or
* The Doctrine of
extortion on The revocation
Colorable
administrative of the special
legislation comes into
force or status of J&K
play when a
misrepresentatio while its
Doctrine of Legislature does not
n on the assembly was
4. Colorable possess the power to
constitution, are suspended and
legislation make law upon a
articulations the
particular subject but
which only imply consideration of
nonetheless indirectly
that the the assent of
makes one.
assembly is the governor as
* By applying this
clumsy to the assent of
principle, the fate of
authorize a the assembly
the Impugned
specific law, has led to the
Legislation is decided
albeit the mark arguments for
of competency is determining
struck on it, and whether the
afterwards it is revocation is a
colorable colorable

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enactment.” legislation or
not.
In the landmark
case of CIT v.
Hindustan Bulk
Carriers
(2003) the
supreme court
* This doctrine was laid down five
brought about to principles of rule
bring harmony of harmonious
between the different construction:
lists mentioned in 1. The courts must
the Schedule 7 of the avoid a head-on
Constitution of India. clash of
Different subjects are seemingly
mentioned in different contradicting
lists in this schedule. provisions and
* However, there can be they must
a situation where an construe the * Questions on
entry of one list contradictory federalism.
overlaps with that of provisions.
Doctrine of
another list. This is 2. The provision of * Can state laws
5. Harmonious
the time when this one section and central laws
Construction
doctrine comes into cannot be used coexist even if
the picture. to defeat the they contradict
* When the court is provision one another?
unable to reconcile contained in
the differences another unless
between opposing the court,
provisions, the courts despite all its
must interpret them efforts, is unable
in such a manner to find a way to
that both the reconcile their
opposing provisions differences.
are given effect as 3. When it is
much as possible. impossible to
completely
reconcile the
differences in
contradictory
provisions, the
courts must
interpret them

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in such a way so
that effect is
given to both the
provisions as
much as
possible.
4. Courts must
also keep in
mind that
interpretation
that reduces one
provision to
useless number
or death is not
harmonious
construction.
5. To harmonize is
not to destroy
any statutory
provision or to
render it
fruitless.
* It is dealt under * Bhikaji Narain * The doctrine
Article 13(1) of the Dhakras v. only applies to
Indian Constitution. State of pre-
* It states that any rule Madhya constitutional
which interferes with Pradesh. In this laws that were
the fundamental case, the C. P. valid at their
rights is invalid. and Berar Motor inception.
* If any law passed Vehicles * The doctrine is
before the Amendment Act not applicable
independence has of 1947 was to post-
Doctrine of provisions violating challenged for constitutional
6.
Eclipse any Fundamental being violative of laws since they
right, the law Article 19(1) (g). are invalid from
becomes dormant. It This amendment the very
does not become act was a pre- inception
invalid but is kept on constitutional because of being
hold. If the law is law. Thus, the inconsistent
passed amending the Doctrine of with Part III.
law in tune with the Eclipse was Because the
Fundamental rights, applied, and the Parliament
then the law becomes Act’s provisions cannot pass
active again. were made laws that are

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* The doctrine of eclipse inoperative. violating the

means that an fundamental
existing law that is rights.
inconsistent with a
fundamental right,
although it becomes
inoperative from the
date of the
constitution’s
beginning, is not
entirely dead. By
amending the
constitution’s relevant
fundamental rights,
the conflict can be
eliminated so that the
eclipse vanishes and
the entire law
becomes valid
* It is also known as * In A.K. Gopalan
the doctrine of v. State of
separability and Madras
protects the (1950), the SC
Fundamental rights of held that in case
the citizens. of inconsistency
* As per clause (1) of to the * A very
the Article 13 of the Constitution, important
Constitution, if any of only the doctrine for the
the laws enforced in disputed protection of
India are inconsistent provision of the Fundamental
with the provisions of Act will be void rights.
Doctrine of
7. fundamental rights, and not the
severability
they shall, to the whole of it, and
extent of that every attempt
inconsistency, be should be made
void. to save as much
as possible of
* The whole law/act the act.
would not be held
invalid, but only the In State of
provisions which are Bombay Vs
not in F.N.Balasara
consistency with the eight sections of
Fundamental rights. the Bombay

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Prohibition Act
were declared
invalid, the
Supreme Court
said that the
portion which
was invalid to
the extent of
fundamental
rights was
separable from
the rest of the
act.
* Ram Jawaya v.
State of Punjab
* Important
* It mainly signifies (1955) case, the
doctrine when
the division of SC held: “Indian
talking about
powers between Constitution has
the checks and
various organs of not indeed
balances
the state; executive, recognized the
between the
legislature and doctrine of
three organs of
judiciary. separation of
the
* Separation Of powers in its
Government.
Powers signifies absolute rigidity,
* This doctrine is
mainly three but the
the foundation
formulations of functions of the
for the “Office
Governmental different parts or
of Profit”
Doctrine of powers: branches of the
clause leading
8. Separation` of 1.The same person government
to
Powers should not form part have been
disqualification
of more than one of sufficiently
of elected
the three organs of differentiated.”
representatives
the state.
under the
2. One organ should not * Indira Nehru
Representation
interfere with any Gandhi v. Raj
of People act,
other organ of the Narain (1975),
1951. Because
state. the SC held:
the same person
3. One organ should not “Separation of
should not form
exercise the functions powers is part of
part of more
assigned to any other the basic
than one of the
organ. structure of the
three organs of
constitution.
the state.
None of the
three separate

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organs of the
republic can
take over the
functions
assigned to the
other”.
* Test of Essentiality: * Sabarimala * In the wake of
The doctrine of temple case: increasing
“essentiality” was religious
invented by a seven- The hon’ble SC assertion in the
judge Bench of the tried to balance Indian society,
Supreme Court in between there is a
the ‘Shirur Mutt’ the Right to question:
case in 1954. The Freedom of
court held that the Religion and ot Whether
term “religion” will her religious
cover all rituals and constitutionall practices are
practices “integral” to y-guaranteed sacrosanct and
a religion and took rights, especiall should not be
upon itself the y the Right to altered to suit
responsibility of Equality changing times
determining the (Article 14: The and needs or
Doctrine of
essential and non- State shall not whether the
Essential
essential practices of deny to any principles of
religious
a religion. person equality humanity and
9. Practices
* So when a conflict before the law or rights enshrined
Or
arises out of the the equal in the
Doctrine of
religious practice and protection of the constitution can
Essentiality
the fundamental laws within the be given
rights especially territory of precedence?
under Article 13 and India),
Article 14, the SC will defining “essent Whether
invoke the doctrine of ial religious religious
essentiality. practice” and practices are
* Whether the practice “constitutional common laws or
is truly integral and morality” are they beyond
non-alienable practice * Other issues the purview of
of the religion? considered are laws?
* Whether the the practice of
revocation of the female genital In short
practice will alter the mutilation whether
religion in a negative among Dawoodi religious
way? bohras, entry of practices should
Parsi women remain

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married to non- unaltered, or

Parsis into can they be
agyari or Parsi changed
temple, entry of according to
women into times?
Mosque. These are all the
points that one
should think
upon and use
this doctrine.

Note: Please
read the
brilliant view of
the dissenting
Judge Hon’ble
Indu Malhotra
in Sabarimala
case saying why
the State should
not interfere
with religious
practices or
take up the role
of a reformer.
She puts forth a
brilliant
argument for
reformation of
religious
practices from
within and not
from outside.It
would offer you
an alternate
dimension of
the argument.
* According to the * A.H. Wadia v.
Doctrine of Territorial Income Tax
Doctrine of Nexus, laws made by Commissioner
10. Territorial a state legislature are (1948), it was
nexus not applicable outside held that a
that state, except question of
when there is a extraterritorialit

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sufficient nexus or y of enactment

relationship between can never be
the state and the raised against a
object. Supreme
Legislative
* This doctrine derives Authority on the
its authority from grounds of
Article 245 of the questioning its
Indian Constitution. validity.
The doctrine states * Supreme Court
that in order for a applied this
state law to have an doctrine in the
extraterritorial case of Tata
operation, there must Iron Steel vs.
be a nexus between the State of
the object and the Bihar.
State.

* Hence, to invoke the

doctrine of territorial
nexus, it must be
clear that the object is
located outside the
State’s territorial
limits, however, it
ought to have a
territorial connection
with the State.
* Proportionality means * Omkumar vs * This principle is
that the Union of India: very important
administrative action to use in GS 4
should not be more The Hon’ble SC Ethics paper.
drastic than it ought for the first * For e.g.: In Case
to be for obtaining the time applied studies dealing
desired result. This the Doctrine of with you
Doctrine of implies that a cannon Proportionality required to take
11.
Proportionality should not be used to in this case. an action on a
shoot a sparrow. subordinate for
Thus, this doctrine * This is any lapse, you
tries to balance generally used can use this
means with ends. in Doctrine of
administrative Proportionality
* The reaction by the law to uphold to reinforce your
administration should the principle of answer and

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be in proportion to Natural justice. upholding the

the action done or the principles of
end required. * Relevance in natural justice.
Puttaswamy * For any laws
* So, in case the (Privacy) that suspend a
government has to judgment and fundamental
suspend a Aadhar right, the degree
fundamental right judgement. of
especially Articles proportionality
14,19 and 21, to what Hon’ble should be
extent can it Chandrachud J. checked. The
suspend? Supreme Court Punishment
judge in should not be
* Here the doctrine of Puttaswamy more than the
Proportionality comes (Privacy) deed deserves.
into play. judgment, notes * For e.g.: The
that any suspension of
invasion of life 4g services and
or personal internet for 18
liberty must months in the
meet the three Kashmir valley:
requirements of: Does it adhere
* Legality, i.e. to the doctrine
there must be a of
law in existence proportionality?
* Legitimate (Anuradha
aim/State Bhasin vs Union
interest, which of India case)
he illustrates as
including goals
like national
security, proper
deployment of
national
resources, and
protection of
revenue, social
welfare; and
* Proportionality
of the legitimate
aims with the
object sought to
be achieved.
There should be

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a rational nexus
between the
objects and the
means adopted
to achieve
them.
* Due process of law * Maneka Gandhi
doctrine not only vs Union of
checks if there is a India: * This is an
law to deprive the life important
and personal liberty In Maneka doctrine that
of a person but also Gandhi vs can be used in
see if the law made is Union of India GS 4 Ethics.
fair, just and not case (1978) SC * In any Case
arbitrary. held that – study requiring
* If SC finds that any ‘procedure you to
law as not fair, it will established by contradict any
declare it as null and law’ within the rule or legality,
void. This doctrine meaning of would you
provides for more fair Article 21 must break the rule
treatment of be ‘right and or blindly follow
individual rights. just and fair’ the rule?
* Under due process, it and ‘not * Will you take a
is the legal arbitrary, teleological
Doctrine of
requirement that fanciful or approach or a
12. Due Process of
the state must respect oppressive’ deontological
Law
all of the legal rights otherwise, it approach?
that are owed to a would be no * Do you blindly
person and laws that procedure at all follow the law or
states enact must and the break the laws
conform to the laws of requirement of whenever you
the land like – Article 21 would wish?
fairness, fundamental not be satisfied. * These are some
rights, liberty etc. It Thus, the scenarios that
also gives the ‘procedure you can justify
judiciary to access established by breaking a law
fundamental fairness, law’ has by saying the
justice, and liberty of acquired the Doctrine of Due
any legislation. same Process of law
* Due Process of Law = significance in upholds the
Procedure India as the ‘due Principles of
Established by Law + process of law’ Natural justice.
The procedure clause in
should be fair and America.

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just and not

arbitrary.
* Judicial Review is the
power of Courts to
pronounce upon the
* This has been
constitutionality of
effectively used
legislative and
by the courts
executive acts of the
to check
government which fall
arbitrary
within their normal
administrative
jurisdiction.
or legislative
actions.
* Article 13 in fact
* India’s
provides for the
* This is a type parliament is
judicial review of all
of check on the not a sovereign
legislations in India,
arbitrary body because of
past as well as future.
administrative this Doctrine of
This power has been
power. Judicial review
conferred on the High
Doctrine of of the Judiciary.
courts and the
13. Judicial * Numerous * This doctrine
Supreme court of
Review hallmark can be
India which can
decisions like mentioned as a
declare a law
the Sankari effective
unconstitutional if it
Prasad case, protector of
is inconsistent with
Kesavananda Fundamental
any of the provisions
Bharati case, rights.
of part 3rd of the
Minerva mills
constitution.
case , Anuradha
Bhasin case
* In India, judicial
etc…The
review broadly covers
Hon’ble court
three aspects;
has utilized its
1. Judicial review of
power of the
legislative action
doctrine of
2. Judicial review for
Judicial review.
judicial decision, and
3. Judicial review of
administrative action
* The doctrine of * Article 311 * This doctrine
pleasure has places can be used
Doctrine of its origins in English restrictions on when answering
14.
Pleasure law as per which, a this doctrine about the
civil servant holds and provides appointment
office during the safeguards to and dismissal or

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pleasure of the civil servants role of

Crown. against any governors.
* Under Article 155, the arbitrary
Governor of a state is dismissal from
appointed by the their posts.
President and holds
the office during the The SC in State
pleasure of the of Bihar v.
President. Abdul Majid
* Under Article 310, the (1954), held that
civil servants the English
(members of the Common Law
Defence Services,Civil has not been
services , All-India adopted in its
Services or persons entirety and
holding military posts with all its
or civil posts under rigorous
the implications.
Centre/State) hold
office at the In Union of
pleasure of the India v.
President or the Tulsiram Patel
Governor as the case (1965), the SC
may be. held that the
“pleasure
doctrine” was
neither a relic of
the feudal age
nor was it based
on any special
prerogative of
the British
Crown but was
based upon
public policy.
* Constitutional * In Supreme We can use this
Morality Court’s doctrine of
means adherence to Sabarimala constitutional
Doctrine of or being faithful to verdict religious morality
15. Constitutional bottom line freedom, gender everywhere
Morality principles of equality and the when we write
constitutional right of women about the
values. It includes to worship constitution or
commitment to guaranteed und religious issues.

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inclusive and er Article 14,

democratic political 21 and 25 of the In fact, the
process in which both Constitution was doctrine of
individual and reinstated which constitutional
collective interests are struck down the morality has
satisfied. practice of precedence over
banning entry of the doctrine of
* Whenever a women of a essentiality as
legislation is passed certain age to said in the
by the Parliament, it the Sabarimala Sabarimala
should be in the spirit temple in Kerala temple case.
of the Constitution as
and uphold the unconstitutional
principles envisaged
by it. According to Dr. * Other
Ambedkar, Judgments by
Constitutional the Supreme
morality would mean Court defining
effective coordination Constitutional
between conflicting Morality:
interests of different
people and the In Kesavananda
administrative Bharati Case,
cooperation to resolve the Supreme
them amicably Court restricted
without any the power of the
confrontation Parliament to
amongst the various violate the Basic
groups working for Structure of the
the realization of their Constitution.
ends at any cost.
In the Naz
Foundation
case, the
Supreme Court
opined that only
Constitutional
Morality and not
Public Morality
should prevail.

In Lt Governor
of Delhi case,
SC proclaimed

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constitutional
morality as a
governing ideas
that "highlight
the need to
preserve the
trust of people
in the institution
of democracy.

In Sabarimala
case, the
Supreme Court
bypassed
the “doctrine of
essentiality” to
uphold the
Constitutional
morality
* A “Statute” or a “law”
* The term
is passed
‘construction’
representing the
has been
wishes of the people
explained
by the sovereign
in CWT vs.
legislative body.
Hashmatunnisa
* The executive must
Begum to mean * In the cases of
act and the judiciary
that something alleged increase
in the course of
more is being in Judicial
administration of
got out in the activism, this
justice must apply the
elucidation of doctrine can
Doctrine of law as laid down by
the subject help legislatures
16. Cassus the said legislative
matter than can maintain a
Omissus will.
be got by the check on the
* There will be a
strict encroachment
confusion regarding
interpretation of of the Judiciary
the wordings or how
the words used. into legislative
to interpret a word in
Judges have set spheres.
implementing the
themselves in
statute.
this branch of
* Very often occasions
the law to try to
will arise where the
frame the law as
courts will be called
they would like
upon to interpret the
to have it.
words, phrases and

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Judicial Doctrines Ready Reckoner

expressions used in
the statute. In the
course of such
interpretation, the
courts have, over the
centuries, laid down
certain guidelines
which have come to
be known as “Rules of
Interpretation of
Statutes”.
* This doctrine tells us
that the courts
cannot put words in
the mouth of the law.
The courts can only
interpret what is
present in the law. It
cannot take into
assumption anything
the law intends to but
has not mentioned or
omitted in the law.
* Interpret what is there,
omit what is not
there.

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