General Editor Abhinandan Malike 1A, LLB (HONS) INALSAR), LLM (UNIV. OF TORONTO) CONSTITUTIONAL LAW GOVERNANCE STRUCTURE UDAI RAJ RAI LLM (All, PRD (London) Distinguished Professor of Law, National Law University Odisha Formerly Krishna lyer Chait Professor of Public Law and Poliey Choice NLS, Bangalore; Ford Foundation Human Rights Chair Professor; ‘West Bengal National University of Juridical Science, Kolkata; and Professor of Law, DDU University, Gorakhpur EBC Lacknow | Delhi | Prayagra | Guwahati Bengalurs | Abmedabod | NagpurEBC Website: wwweehs.coin, E-mailsales@ebe-indiacom, “Webstore wwachewebstorecom Lucknow (H.0,): 34, Lalbagh, Lcknow-226 001 Phones: +91-522-4033600 (30 ines} Fax: +91-822-4033633 Delhi 1267, Kashnere Gate, Old Hind College Building, Delhi-110 006 Phones: ¢91-11-23917616,o91-9913080904, Fax: w91-11-23921656 Bengolura: 25/1, Anand Nira, 3c Coos, 6th Main, Gandhinagar, ‘Bengaluru-S60 03, Phone: :91-80-41225365 Prayagra: Mana Law House, La’ Publishers 8 Booksellers, Nee Prithvi Garden, ‘Opp. Dr. Chandra Eye Clini Elgin Road, Civil Lins, Prayagra}211 00], Phone: o91-532-2400877, 2422025, Fase ¥91-S32-2603884 Abmedabad: Saeyame Complex, Ground Foot, Shop No.7 (Opp, High Coure Gat No.2 (Caden Jbilee Gate) Sark) Gandhinagae Highwey Road, Sola, Ahmedabad 380 060, Phones: «91-9238012539, «91-7567905245 [Nagpur 9, Girish Heights, Near LIC Square, Kampee Road, Nagpur-440 001 ‘Phones: +91-712-6076S0,+91-7028924969 (GausahatisAdvika, Unit No. 208, 2nd Floor, M.G. Road, Pan Bazar, Guwahas-781 001 Phone: +91-8734091956 ‘wwwescconlnecom/blog “wee facchook com/easterbooksonp vwwertwittercombeing sweewcebcexploreccom First Edition, 2016 Second Eation, 2022 “Narayan Rao Melgii| ‘National Law Library” Bane. Thott js oh cmd ray par of al nat yaya other, bel Lemire opel hens or ied ate alert pre sna (efi coe shan a rh pba ed what amr coving ‘Senso pd omen pecans f nyo hic hier fi re ya wen, penn wd oe ore ys ane hs pe ofr en fg ober wl br ayo eae he fe py By ante cre py of work fon ibaa fr choo Copyright © EBC Publishing (P) Led, Lucknow Pablished by Eastern Book Company, 34, Lalbagh Licknow-226 001 ender Heence from EBC Publish ng (P) Led Lackaow Primed and Produced by Thomson Press (india) Ltd, Noida Dedication In Memory of my Gurus Professors Alan Gledhill and K.K. Bhattacharya swho apart from being eminent Scholars of Law were Excellent Human Beings And ‘Sri Baij Nath Pandey, my maternal uncle in whose laps I literally received my first lessons of educationXII Acknowledgement support and for creation of an academic atmosphere which is conducive to reading and writing, ‘Writing of a book is only che part of the work done, The other part is publication and marketing. This part is in the hands of Eastern Book ‘Company, Lucknow. I thank the company for having undertaken this task. At the personal level I thank Mr Sumeet Malik, Mr Abhinandan Malik and Ms AR Lakshmithaa, and her team at Eastern Book Company for everything they have done and also the consideration they have shown at every stage in the matter. At the end I express my sincere gratitude to MOTHER Goddess DURGA for enabling me to overcome all odds and impediments, some natural and some contrived, —UDAIRAJ RAL % 10. 1. 2. 1B. Brief Contents Table of Cases Constitution, Constitutional Law and Consticutionalism A Brief View of the Constitution and Its Salient Features Preamble Doctrine of Separation of Powers Executive . Mercy Power of the Executive and Executive Legislation Legislature: Composition, Procedure and Privileges Judiciary: Organisation of the Courts Respective Powers and Jurisdiction of the Supreme Court and the High Courts Federal Idea and an Overview of Indian Federalism Centre State Legislative Relations - Administrative Relations Financial Relations 23 35 45 9 1 163 29 269 349 367 - 407 . atxiv “4 15. 16. TA 18. Brief Contents Emergency Provisions and Their Impact on Distribution of Powers . Freedom of Trade, Commerce and Intercourse Throughout the Territory of India Givil Services and the Election Commission Amendment of the Constitution Judicial Review. . Subject Index vo .e.ceeeveeeveees 487 475 509 563 595 a Contents Table of Cases 1. CONSTITUTION, CONSTITUTIONAL LAW AND CONSTITUTIONALISM PARTI: MEANING OF CONSTITUTION ....ss000ee00+ * Institutions © Rules i Rules of the Constitution Organic laws Judicial decisions Conventions * Ideas are important elements of a Constitution Par II: CONSTITUTIONAL LAW * General a ae * Rules contained in the document known as the Constitution of India * Rules of procedure * Conventions of the Constitution + Ideas Parr III: CONCEPT OF CONSTITUTIONALISM. * Supremacy of the Constitution ...-...-20+++0 * System of representative and responsible government * Dispersal of power + Protection of individual rights * Creation of politically neutral zones 2. A BRIEF VIEW OF THE CONSTITUTION AND ITS SALIENT FEATURES + A.written Constitution : * A detailed and lengthy ConstitutionXVI Contents A BRIEF VIEW OF THE CO! ITUTION...., ete. (Contd.) ‘© Arigid Constieution ‘© Supremacy of the Constitution ‘© Government with limited and defined powers ‘+ Judicial review A federal Constitution ..-...22.+2 ‘+ No separation of powers in the strict sense ‘+ Parliamentary form of Executive ‘= Independent Judiciary + Largely based on borrewed ideas ‘+ Consensus and accommodation ‘+ Social document . + Asprational character ofthe Consticution . * Rule of law 3. PREAMBLE ‘Meaning of Preamble znd the message it conveys 35 Source of authority of the Constitution .......+ 36 Nature of polity 37 Objectives and goals... : 41 + Preamble as an interpretive aid . eae 4, DOCTRINE OF SEPARATION OF POWERS Part i: GENERAL 45 + Meaning 45 * Origin and purpose - 46 ‘© Doctrine in its modern form 47 Checks and balances 7 .47 Each department assured ofits autonomy. 48 Executive power is vastly enlarged 48 Parr Il: INDIAN CONSTITUTION 6.026460 e+ ” * Separation of functions ee 49 Supreme Court’ view ofthe legislative fonction ss. .....s0.+ 48 Supreme Court's view of the judicial function .....« 50 A view of the location of judicial power under the Constitution 51 * Separation of personnel .....eeeeccseeseesreses see * Checks and balances, : sa + Exercise of ancillary and incidental powers cai PART III: LEGAL IMPLICATIONS OF THE DOCTRINE ..eecsesecer-+ 56 eee eee eke eee eee Contents 5. EXECUTIVE PARTI: GENERAL ‘+ Executive power: Nature Parliamentary and presidential forms of Executive Respective merits ofthe «wo systems Respective demerits of the two systems. Bridging the gap cee Par II: PRESIDENT AND VICE-PRESIDENT * Terms of office, eligibility and other things * Election and removal... Election... Removal . 7 + Powers of the President and the conduct of business ‘= Immunities Par Ill: Counc, oF Ministers + Its formation: A constitutional obligation ‘+ The President and the Council of Ministers ‘+ Pre-amendment controversy about the nature of Indian Presidency . ‘ President's postion is different from that ofthe British monarch President: A constitutional head + Correct view of Indian Presidency Indian President: Neither too weak nor too strong No political accountability of the President President: Not a rubber stamp Some of the powers are ostensibly ofthe President: But vray of the Prime Minister : President required to act on being satisfied. President required to consult some other constitutional funetionary ....2..222+++ Constraints on the President are political ‘+ Discretionary powers of the President Appointment of Prime Minister Dissolution of the House of the People President's power to dismiss a government ‘Special position of the Indian President Duty to defend the Constitution ae Duty to prevent circumvention of parliamentary procedure Power to send message - xvi “7 .8l 283 - 88 8 86 86 Be Be 9s 98 102 » 104 + 106XVII Contents Contents x1x Pecan ena) 7. LEGISLATURE: COMPOSITION, PROCEDURE AND PRIVILEGES eae ane 07 Part: LEGISLATIVE CHAMBERS AND THEIR COMPOSITION «+... 163 «Ministerial responsibility .. fees Hag + Functions thatthe Legislacures perform .......s.ssese+eses 163 © The Prime Minister. m * Constitution of Legislative Houses ade Past vs Gavtinon a Executive head: An essential component ofthe Legislature ... 165 Spee an ee Unicameral versus bicameral Legislature ... 16 ae Composition and duration of the House of the People and + Appointment, terms of office, and powers . 2 6 sua pera poe = Sa eeeaee a Composition and duration of the Council of States ad + Discretionary powers of the Governor fener tea Legislative Councils vt ¢ Link berweea the Unlon and the estes...» eae * Qualifications and disqualifications « ‘m2 + Gentre's shor sightedaess leading to constitutional chaos =... 123 Nicaea abst oe pases aa tea ae * Saga of judicial interventions vere 125 qualification or existence of disqualification... 173 * Limits of judicial process: Need vo make politcal process Qualifications as laid down inthe Constitution ......2.2.. 174 credible and crustworby 2... ; nes) Sanity guallscaes PART V: VIABILITY OF PARLIAMENTARY GOVERNMENT ..« 136 Disqualifications laid down in the ‘Constieution sees 15 * Basic problem pete 136 Srarurory disqualifications Sess + Our notions about parliamentary system need revision... .. 139 © Office of profit... erage Inroductory sevecscsesesee cena 6. MERCY POWER OF THE EXECUTIVE Office of profit, ts meaning . + 178 [AND EXECUTIVE LEGISLATION © Antidefection lW ..eeseseseeceeses ves 180 MERCY POWER OF THE PRESIDENT AND GOVERNOR ....-. 147 Introductory : ++ 180 Mercy power: ts need and justification Sree Constitutional provisions in respec of defection 1st * Amtces 72 and 161 ofthe Constitution : 142 Some clarifications and comments ....++.. +++ 183 «Powers ofthe President and Governor demarcated... ss. +. 142 + Presiding officers of legislative chambers... 185 * Nature and content of the mercy power ..... seer 144 Appointment and removal Seine i 185 » Executive power of mercy and the Legislature ....-..-- 146 Powers and functions 186 iS jiaiciary and anbanhe powetaf cummay ert “7 Speaker's office and the gap between expectation and realty . 188 + Constitutional accountability forthe exercise of mercy power. 149 *+ Conduct of business in Parliament and Stae Legislatures ...... 189 © Scope of judicial review .....eseseereseee sees 150 PaRr Ii: LEGISLATIVE PROCEDURE «+. +. 190 Paxr Il: ORDINANCE-MAHING POWER OF THE PRESIDENT AND + Classification ofthe Bills oe 1 190 GOVERNOR vee es ese es ae 153 *# Definition of Money Bill... sssssscseeeeee 192 Introductory... Heads + Procedure for passing an Ordinary Bill Dig «© Conditions precedent forthe exercise ofthe power .......+.+ 154 General procedure : ae aes ‘Both the Houses should not be in session... 0c ssceve. 154 Disagreement bet wer the Howes a te Contre 195 Satisfaction for the need of the ordinance «+... 155 Disagreement between the Houses in the States... sc. .+ 196 [Need for prior assent ofthe President in some cases 156 Lapse of a Bill consequent upon the dissolution ofthe © Duration of an ordinance Hee ae 156 | ‘House of the People or the Legislative Assembly ......... 197 «Authority ofan ordinance ae 197 + Procedure for passing a Money Bill. aie Ocoee, a 8 * General procedure in financial matters vines 199 seeing) We ieee aie eae eeeXX Contents LEGISLATURE: COMPOSITION, PROCEDURE...., ete. (Contd.) ‘+ Expenses which area charge on the Consolidated Fund of India or that of a State Expenses charged onthe Consolidated Fund of India Expenses charged on the Consolidated Fund of the States . Parr III: PARLIAMENTARY PRIVILEGES + Introductory ‘Privileges granted inthe Constitution ....... Freedom of Speech Immunity from court proceedings Internal autonomy * Other privileges Right against arrest . Right to prohibit publication of proceedings Right to exclude strangers Power to punish for contempt * Privileges and the Fundamental Rights + Privileges and the courts 8, JUDICIARY: ORGANISATION OF THE COURTS Par I: GENERAL * Introductory Bee + Judging requires independence and impartiality + Need for drastic instutional reform Par Il: Tie Surreme Court * Establishment of the Supreme Court ‘+ Engagement of ad hoc and retired Judges ‘+ Seat of the Supreme Court * Mode of appointment of Supreme Court Jodges: Constitutional text + Mode of appointment of Sapreme Cone Constitutional practice up t0 1989 + Collegium system . Background . Mode of selection Role of the Executive . Parr Ill: Tite Hic Courts . ‘+ Establishment of the High Courts a . 235 200 201 202 202 205, 205, 206 208 = 209 - 210 210 210 213, 207 219 219 20 222 235 wee 223 23 224 224 wee 227 » 230 230 232 = 233 235 Contents JUDICIARY: ORGANISATION OF THE COURTS (Contd.) ‘Additional Judges + Transfer of High Court Judges “Mode of appointment and requisite qualifications Requisite qualifications + Amassessment Parr III-A: NJAC AND I$ INVALIDATION * Introductory «Reasons for invalidation * Comments . Parr IV; Removal oF Jupces * Introductory + Impeachment procedure * Efficacy of the system ceveeeeee Parr V: Susonpinare Jupictary ox Disrricr Courts *# Introductory : ‘+ Recruitment and appointment. * Control over Subordinate Judiciary * Importance of Subordinate Judiciary Par VI: INDEPENDENCE OF JUDICIARY ‘+ Institutional independence ... * Independence of Judges ..... : * Independence fcom other influences including one’s own leanings * Some lacunae 9. RESPECTIVE POWERS AND JURISDICTION OF THE SUPREME COURT AND THE HIGH COURTS Parr I: JURISDICTION AND POWERS OF THE SUPREME COURT ‘+ Federal jurisdiction of the Supreme Court : ‘+ Appellate jurisdiction of the Supreme Court: General + Appeal in constitutional maters. + Appeal in civil cases * Appeal in criminal cases. ‘+ Certificate of the High Court ‘+ Appeal by special leave o + Enforcement of Fundamental Rights * Advisory jurisdiction 23 = 258 xo 235 - 237 2a 243 245 245 246 <7 2st 2st 252 252 +255 = 258 25 261 262 262 264 265 266 269 - 270 . 273 24 275 276 277 277 = 281 287XXII Contents RESPECTIVE POWERS AND JURISDICTION... etc. (Contd.) + Power to do complete justice: Article 142(1) .. es. eeeeeeese+ 289 # Power of review... és - 291 The Supreme Court and the doctrine of precedents... ..... 291 Par Il: SUPERVISORY JURISDICTION OF THE HIGH COURTS UNDER ARTICLE 226 plas ca eeees 204 * Introduction = 294 ‘Sup-PaRt (1): GROUNDS OF JUDICIAL REVIEW . ses 296 + Introduction 296 * legality 298 + Procedural impropriety si Rule against bias . eves teeteueecacee ee aia: Right to be heard 320 Duty to give reasons. pee + Rationality (or substantive review and josifeation) .......... 329 pane (2): REMEDIES 334 ‘Introduction 334 © Habeas corpus... +. ies 334 © Mandamus 2... 20.0 gt g36. ‘© Prohibition and certorari .. nee ase Sup-panr (3): LIMITATIONS, PARTIES, AND POWER OF ‘SUPERINTENDENCE 342 * Limitations 342 * Parties 344 + Power of superintendence fee eae 10, FEDERAL IDEA AND AN OVERVIEW OF INDIAN FEDERALISM Parti: FEDERAL IDEA ..2...220006 : see 350 = Meaning .. ieee 350 ‘= Essential features pace 350 Dual polity 3st Distribution of powers 35 ‘Written Constitution. 351 Supremacy of Constitution 351 Federal Court and judicial review 35 Rigid Constitution... = 382 ‘+ When is a federal system appropriate? = 352 ‘© Advantages and disadvantages = 353 Contents FEDERAL IDEA AND AN OVERVIEW..., ete. (Contd.) Parr Il: FEDERAL CHARAGTER OF THE INDIAN CONSTITUTION «. * Background Vastness of the country... Experiences during British rule Problem arising out of partition + Presence of federal features * Indian federalism and its special nature + Departures of an insignificant nature : + Centralising features of the Indian Constitution. ‘+ Powers meant to be exercised in exceptional situations alone ‘+ Cooperative federalism : * Variety in Centre-State relations Paxr III: CONCLUDING REMARKS 11. CENTRE-STATE LEGISLATIVE RELATIONS Parr I: DISTRIBUTION OF LEGISLATIVE POWERS : * Territorial limits of Union and State legislative powers Doctrine of territorial nexus... Tata Iron & Steel co. v. State of Bibar State of Bombay v. R.M.D. Chamarbaugwala ‘Two pre-Constitution cases : Nexus doctrine not limited to tax law * Subject-wise distribution of powers + Residuary powers + Parliamentary legislation in State field After a resolution of che Council of States During the operation of emergency ‘With the consent of che States peers For the implementation of a treaty ot international agreement *+ Requirement of presidental assent for certain categories of State laws it + Distribution of powers and federal paramountey Parr II: FEDERAL DISTRIBUTION OF POWERS AND RULES OF JUDICIAL INTERPRETATION ‘= Rule of broad and progressive interpretation ‘+ Rule of incidental and ancillary powers + Rule of harmonious construction . 376 XXII 353 353 354 354 354 355 355 = 356 357 = 359 363 365 368 368 368 368 369 369 370 370 37 375 376 376 377 . 378 + 380 387 388, 390 - 391XXIV Contents CENTRE-STATE LEGISLATIVE RELATIONS (Contd.) + Rule of pith and substance Rule of colourable lezslation Par Il: REPUGNANCY «+... + Introductory ‘© Scope of Article 2541) ‘© Article 254(2) and is proviso ‘+ Repugnancy: Its meaning and effect 12, ADMINISTRATIVE RELATIONS. Parr: DISTRIBUTION OF ADMINISTRATIVE POWERS, = Introductory + Imer-governmental delegation of administrative power ‘© Centre's power to issue directions to the States Parr Il: ARTICLE 355 - «Protection agains inernal disturbance and external aggression ‘© Governance of the S:ates according to constitutional norms 13, FINANCIAL RELATIONS PART I: DISTRIBUTION 0 REVENUE RESOURCES Scheme of distribution: Its characteristics... + Taxing powers of the Union and the States as. oval provided ‘© Changes brought about or the Constitution (01st Amendment) ‘Act, 2016 oe eee Parr Il: Fee © General * Compensatory fee * Regulatory fee Pant III: RESTRICTIONS ON TAXING POWERS . SuB-PAnt (I): INTER-GOVERNMENTAL TAX IMMUNITIES ‘Doctrine of immuniry of instrumencalities and its non- application - ‘ + Immunity o State income and property from Union taxation ‘+ Exemption of Union property from State taxation ‘+ Exemption from State tax on electricity ‘+ Exemption in certain other cases . 397 2 wee 426 28 = 392 395 396 396 399 402 407 . 407 409 aut amy as - 47 42 23 24 26 43 437 437 87 438 440 442 442 Contents XXV FINANCIAL RELATIONS (Contd.) Sus-rant (2): RESTRICTIONS ON STATE'S POWER TO IMPOSE. SALES TAX [OR GOODS AND SERVICES TAX] 443, * Introduction cectteveeeteeereees 443 + Inthe course of inter-State ade or commerce: Its meaning... 444 ‘+ Sale or purchase outside a State: Its meaning 445 ‘+ In the course of import into the territory of India: Its meaning... 446 ‘+ In the course of export outside the territory of India: Its meaning ..... ceeeetetensteesseseeee 447 PaRT IV: TAX-SHARING AND FISCAL GRANTS... 448 + Taxsharing .... 448 ‘Fiscal need and other grants 449 ‘* Finance Commission ae eete ene caaea east aay Summing up eee cess ASD Parr V: Goons aNp Services Tax Count Sere eietggs 14. EMERGENCY PROVISIONS AND THEIR IMPACT ON DISTRIBUTION OF POWERS Parr I: EMERGENCY PROCLAIMED BECAUSE OF THREAT TO THE SECURITY OF INDIA ae 438 ‘+ Mode of proclamation = 458 ‘+ Impact of proclamation 459 Par II: FINANCIAL EMERGENCY... 460 + Proclamation ... Ecc aad Impact eee esses ee eee eda Pant III: FAILURE OF CONSTITUTIONAL MACHINERY IN ASTATE ... 46 # Introductory... 2+ ceeeee 461 # Proclamation ....2.+0.02 ceesteeeeseee 462 * Proclamation and its duration ee wes 462 * Content of the proclamation and its consequences = 463 464 + Failure of constitutional machinery: Its meaning * Safeguards: Political 467 * Safeguards: Judicial 468 State of Rajasthan v. Union of India 469 S.R. Bommai v. Union of India. sees 471 Bihar Assembly dissolution case . sees 473XXVI_ Contents 15. FREEDOM OF TRADE, COMMERCE AND INTERCOURSE THROUGHOUT THE TERRITORY OF INDIA Parr I: INrRopuCTORY : 475 ‘© Scheme of discussion in Part I a sees 475 * Outline of Part XIII of the Constitution... 476 ‘* Impact of other Constitutions ...2..eseeeeesee+ wee 478 Impact of the US Constitution . os 478 Impact of the Australian Constitution - 479 Government of India Act, 1935. - 480 Parr Il: ATIABARI, AUTOMOBILE TRANSPORT, JINDAL STAINLESS rp. (2), AND JINDAL STAINLESS LD. ¥. STATE OF HARYANA... 481 * Ascher Tae Co Tad Stat of Ata... 481 * Automobile Transport case. ceceees 484 «Jindal Stainless Led (2)" and the concept of compensatory tax . 486 * Summing up ++ 490 + Jindal Stainless Ltd. . State of Haryana - 491 Part IIl: LEGISLATIVE POWER TO IMPOSE RESTRICTIONS «-...-+ 493 # Introductory... ceceeeereeees 493; + Parliaments power under Article 302 feeccssses 494 ‘+ Power of the State Legislatures to impose non-discriminatory taxes wee mae 497 + Imposition of discriminatory taxes... seeeeenees 499 + Regulatory laws of the States... sos Parr 1 MISCELLANEOUS ISSUES ‘Relationship between Articles 301 and 19(1)(g) -.+-++++ + Need for an independent authority 506 = $06 - 507 16, CIVIL SERVICES AND THE ELECTION COMMISSION Parr I: SERVICES UNDER THE UNION AND THE STATES. ss 510 Sup-PART (I): RECRUITMENT AND OTHER THINGS ....0222002205 510 * Politically neutral permanent services: A constitutional value... 510 + Organisation of Public Service Commissions . .... siz + Independence of Public Service Commissions... 513 ‘= Functions of Public Service Commissions... .-+..eeceeeeeee SIS Sun-parr (2): CONSTITUTIONAL SAFEGUARDS OF A CIVIL SERVANT: CONTENT OF THE SAFEGUARDS AND THEIR NATURE... si7 ‘= Relationship between the government and its employees .....-. S17 ‘© Competence to dismiss or remove eeereeieaes tera Goa Contents XXVIt CIVIL SERVICES AND THE ELECTION COMMISSION (Contd.) Right to be heard 526 Sup-parr (3): APPLICATION oF ARTICLE 311 536 + Introductory ie 536 + Meaning of dismisal, removal, redoction in rank: Basic premises ena sae + Discharge of probationers and temporary employees... 540 ‘+ Compulsory retirement S48 ‘+ Exclusion of Article 311(2) 550 Parr Il: ELECTION Comaussion ..... ‘© Organisation of the Commission See ee ete SSe ‘+ Regional Commissioner... ee 558 + Powers and functions ofthe Election Commission 558 17, AMENDMENT OF THE CONSTITUTION Parl: Genznat 564 = Introductory 56 + Balance between change and stability... . 56 + Changes inthe text which do not amount to amendment 568 Parr II: PROCEDURAL LIMITATIONS ON THE AMENDING POWER ‘Introductory 567 + Amending proces as given in Article 368, 568 ‘Some clarifications 56° ** Scope of the proviso to Article 368(2) 70 Parr III: SUBSTANTIVE LIMITATIONS ON THE AMENDING POWER (1): “SHANKARI PRASAD” TO “GOLAKNATH” «e000 37 # Introductory ....... 575 + “Shankari Prasad” and “Sajan Singh? cases ss. s0scscs00 S78 + Golak Nath v. State of Punjab ........- S78 Parr IV: SUBSTANTIVE LIMITATIONS ON THE AMENDING POWER (2): BASIC STRUCTURE DOCTRINE +... eeeeeeeeeeee 376 = Introductory 576 ‘+ Amendments impugned in “Kesavananda” .......22.220.24. S78 ‘© “Kesavananda”: The decision . a+ $78 ‘+ The “Election case” 580 + Minerva Mills Ltd. Union of India ‘+ “Waman Rao” and “LR. Coelho”XXVIII Contents AMENDMENT OF THE CONSTITUTION (Contd.) ‘+ Judicial review : + Judges Appointment case Parr V; Basic srrvcrure ‘Basic structure: Its msaning . : * Legitimacy of the basic structure doctrine . * Custody of the Constitution * Constituent power 18, JUDICIAL REVIEW Parr I: MEANING AND NATURE + Meaning and nature : ‘Framers view of judicial review + Standards of review - * Meaning of judicial activism Parr Il: TecHNiques oF eviEW ‘© Judicial creativity ‘+ Judicial balancing ‘+ Judicial deference ‘© Judicial activism Par III: INSTITUTIONAL 3ELATIONSHIP *# Introductory © Conflic of jurisdiction a + Insiucional relationship: Conflict and cooperation © A short summation Subject Index 586 - S87 589 389 - $90 592. 592, s95 595 597 598 = 599 601 601 605 = 606 609 6r - 612 . 612 oe 614 . 617 an Table of Cases AG. Jose: Svan Pills, (1984) 2 SCC 656 sa 1 Jayachandeav.Anel Kar, 2005) 2 SCC 22 21 ‘AK, Gopal , Sate of Madras, 1950 SCC 226; AIR 1950 SC37 18,20, 45,283, 61,602 AK, Kal Union of nda, (1995) 4 SCC 73 ss ‘AK Keaipak «Union of India, (1969) 2 8CC 262 311,313,314 ‘AK Roy Union of India (1982) 1SCC271 4,155 157,198, 397,374 [ALLA Schechter Poultry Corp. : United Stats, 1935 SCC OnLine US 118.9 Ed 1570, 295 US 495 935) 450 AWSRTCe: ITO, AIR 1964 SC 1486 49 [NS Krishna» Seat f Madras, AIR 198750 397 : 154,397 [AU. Kress High Cour of Gxjara, (2009) 11 SCC 88 a4 ‘Asi Shakar. Rithab Chand, ATR 1958 SC 52 : 180 Accountant General State of Ker, 1969 SCC OnLine Ker 73 Ait 1970 Kee 198 100. 412 ‘Adegbenro Akin, 1963 AC 6141963) 3 WLR 63 101 |ADM, Jabalpur Sivakan Shela, 1976) 2 SOC 21 20,34 A Hs Kha Maj Shravan 9) 1 SCC 722 eel a Judges’ Asn (1) x Union of indi, (1982) SCC 113 297,20, Ain fp) Uno of nd 988 #SCC 258 26 Alla Joes Assn. (3) Union finda (20024 SCC247 2a Andhta Steel Corp. v. CCT, 1990 Sapp SCC 617 a Andhra Sugas Lids State of AP, AIR 1968 S599 495 Anismini Lid Foreign Compensstion Commission, (1969) 3 AC 14, 1968) "WLR 163 (HL) 297,301 Anoop Jawa. Union lad (1984)3 3CC 368 S44 Ansumali Mazumdar. tate of WB, 1952 SCC OnLine Cal 19: AIR 1952 Cal 612s... 210 Anukl Chanda Mondal». CT, 1961 SCC OnLine Cal $4: AIR 1962 Cal3 su Arjan Chabey . Union of nd (1988) 2SCC $78 530 Arunachalam PSR. Sadhanaatham, (1979) 2 8CC297 280 Asoc Kamar Yada Sate of Haryana, (1985) 4 CC 417 288 Associated Prvineil Pirare Houses td. Wednesbury Copa, (948) 1 KB 223 (CA) 297,330 Aram Prakash. Sat of Haryana, (96) 2 SCC 349 44 ‘Aue Tea Co ide State of Assam, AIR 1961 8C233 476, 4, 482,483, 484, 1485, 485, 49, 491,495 -Aeoeney General Fulham Corp. (1921) Ch 440 239, “Atorne General for Canada Avorey General for Onto, 1987 AC 336 A ‘Atorney General for Ind Aral Prajvanay (1994) 88CC 94 27,34 ‘Automobile Transpore (Rajasthan) Ltd. Sat of Rajasthan, AIR 1962 SC 1406. 481, 489, 1485, 484, 45,486, 487,490, 491,504 [BR Singhal Union of nds, 2010) 6 SCC 331 . 136 BR Kapur ete of TN (2001) 7 SCC201 ca BSE. Broke Forum e SEB, 2003) 3 SCC 463, asXXX Table of Cases BS, det, Union of Indi, ATR 1969 C118 sa 3B. Venkataamanav, Sate of Madras, 1951 SCC 35% AIR 1951 SC 229 33 ‘Babul Parte. State of Bombs, ATR 1960 SC St i ‘67 Bachan Singhs Sete of Pani, (1980) 2SCC.684 a Beidyanath Mahapatra tae of Ora, (1989) 4 SOC 64 a Baikuntha Nath Das District Medial Office, (1992) SOC 299 en Baker» Cae, 1962 SCC Ontie US SC 40:7 Ld 24663: 369 US 1861962), eu Baldey Raj Chadha v Union of nda (1980) 4 SCC 321 510,546 Baldwin Selig, 1935 SCC OnLine US SC 57791 Ed 1032294 US S11 (1938) a SBaraim Chemicals Lid. Company Law Board, AIR 1967 SC 298 300 Barnaedv National Dock Labour Board, (1983) 2 QB 1: (1983) 2 WLR 995 (CA) =... 303 Bashesbar Nath CTT, ATR 1959 SC 149 3 Behcam Kiucsid Pella Sate of Bombay, AIR 1955 8C 123 B96 Bengal Innity Co, Leds, Site of Bihar, AIR 1955 SC 661 155, Berubae Union (1) re, AIR 1960 SC 845 | in Bhagat Ram a State of HP, 1883) 2 SCC 443 ae ‘Bhagatta Rejerkumar x CST, 1995 Supp (1) SCC 673 499 ‘Bharat Bank Led. Employees fhe Bharat Bank Led, 1980 SCC 470: AIR 1950 sce a ‘Bhim Singh Sat of JK, (985) 4 SCC 677 33s Biddle. Perovic, 1927 SCC OnLine US SC 138; 711 Bd Tighe 274 US 480 (1927) 0... 46 Bika School Examination Boat! Subhas Chandea Sinha, 1970) 1 SCC 648 sn Bikaial Dobray . Rosas LalDobay, (1986) 1SCC SSL : 180 Binan Bros (P) Lede Union of Idi, (1974) 150459 000000) a7 Bishambhar Dayal Chandes Mohan Sate of UP, 1982) 1 SCC 38 336 Board of Conta for Cricket nln. Netaji Cicket Club (2005) 4 SCC 741 298 Board of High School and InermodiateEdscaton».Ghanshyam Das Gupa, ‘AIR 1962 SC 1110 a Beadlaugh v, Gost, (1884) 12 QBD 271 (DG 209 ‘Bj Mohan Sigh Chopra See of Pua (1987) 2 SCC 188 sas Burdick o United States, 1915 SCC OnLine US SC 31: $91. E4476: 236US79 (1915)... 146 Bua Doone Tea Co. Lido. Stat of WB, (1989) 3 SCC2I1 383 CB. Reilly» R. 1934 AC 176 PC) coos S18 (Calcata Gas Co, (Psopitay) Lid State of WB AR 1962 SC 1044 00.021 383,391 {Cental inland Water Feangport Corp, Lid rojo Nath Ganguly, (1986) 3 SCC 156... 6 (Champlal Chimanlal sha Union of nda, AIR 1968 SC 1854 sii sa Chandra Mohan . Sate of UP, ATR 1966 5C 1987 256 (Chandeama Tewari Union offdia, 1987 Supp SCC S18. 533 (Charan Lal Chowry«:Urion of Inia 1980 SCC833: AIR 1951 SC419 607 (Chas Steward Mach Co,» Das, 137 SCC OnLine US SC 116: 81 LEd 127% S01 US 5481937) asi (Coffee Boaedv. CTO, (969) SCC 349 “7 Cole. Whitl, (1985) 16 CLR 360: 1988 HCA 18 (Aust) 226,390,504 Collector. Ibrahim and Co, (1970) 1 SCC 386 ‘507 {Common Causes, Union of india 1996) SCC 752 560 CComonwealth of Australi Bank of New South Wales, 1950 AC 235 (PC) 506 Comet: Delhi Cloth 8 Genal Mill Co, Le. (1978) 2 SCC 367 at ‘Comin of Police Gordhandes Bhan, 1951 SCC 1088: AIR 1982 SC 46 Tao (Comme, Hinds Religious Endewrnens Si Lakshmindsa Theta Swami of Sei ‘Shire Mate, AIR 1954S 282 428,09 Cooper». Wandsworth Board cf Weeks, (1863) 1 CB (NS) 180: 143 ER 44 321,323 Corp. of Calera v Liberty Gnema, AIR 1965 SC 1107 a {Council of Civil Service Unions. Miner forthe Ci Service, 1985 AC 37 {1984) 3 WLR 11% (HL) 130,298,330 (CPWD «Rajsthan Taxation Foard, (2004) 7 SOC 195 a1 Table of Cases XXXI D.C. Wadhwa Seat of Bias, (1987) 1 SCC 378 154, DIN. Benen» PR. Muberje, ATR 1953 SC 58 DS. Nakara Union of nda (1983) 1 SCC305 : Daryso .Sateof UP, AIR 1961 SC 1457 DeDolse vB, (1896) 66 LIQB 4220 Deep Chand State of U.P, AIR 1959 SC 648 os Deepak shal, Punjab Unies, (1989) 2SCC 15 ee. IIT hi Cloth and Genera Mill Co-ed. Comn, (1970) 2 SCC 173 Delhi Judicial Service Asn. State of Gujarat, (1993) 4 SCC 406 Delhi Laws Act, 1912, re, AIR 1981 SC 32 Derbyshire County Counc Times Newspapers id, 1993 AC S34 (1993) 2 WLR ‘49 (1) 7 Devil Modi v STO, AiR 1365 SC 1450 Dhakeswari Cotton Mile Ld». CIT, AIR 1955 SC 65 Diamond Sugae Mile Le.» Stat of UP, AIR 1961 SC 652 Dimes v. Grand Junction Canal, (1852) 3 HLC 759: 10 ER 301 Dipa Prakash Banerje«. Satyndea Nath Bose National Cente for Baie Scns, 11999) 38cC 60 Dieetr of Collet Education Amn), Nagoot Meera, (395) 3866397 Dana R, (1896) 1 QB 116(CA) 7 Darga Shankar Mehav, Raghu Sigh, AIR 1954 SC 520, ELF. Royapa Stat of TN, 1974) 4 SCC 3 FECILt B, Karuna, 1993} SCC 727 lection Commission «Saka Venkata Subba Rasy AIR 1989 SC 210 lection Commision of Indi Subramaniam Swary (1996) 4SCC 104 20. Epuru Sudhakar, State of AP (2006) 8 SCC 16: 2006) 3 SCC (Cr 438-2... Erusian Equipment 8 Cheriale Lid. State of W.B. (1975) 18007 Excel Wea Union of India, (1978) 4 SCC 224 Fuchchand Himmatal x Stat of Maharashrs, (1977) 2 SCC 670 Fiom ALTB. Metab Maid and Co, Stat of Madras, AIR 1963 SC38 Francis Coralie Mallia» UT of Deli, (1981) 1SCC60B =... Franklin» Minster of Town and Country Planing, 1948 AC #7 (HL) GK. Krishnan State of EN, 1975) 1SCCS75. os eeeeee G.Keshs Good». Seat of A, 1976) 1 SCC 157 G.Sadanandan Sate of Kerala, AIR 1966 SC 1925, 6G. Saranav Univesity of Lucknow, (1976) 3 SCC 585. (GY. Ramanaah Sept of Cental il (1974) 3 SOC 3H GG. Viswanathan 2 TN. Lepslatine Assembly, (1996) 2800383 : (Gangs Ram Moolchandan tate of Rajesthan, (2003) 6SCC 89 : (Ganganagar Zila Dughd Uipadak Sabakar Sangh 1d riganka joshi (1999) & ‘secat4 Garland ex p, 18 L Ed 366: 71 Us 359866) (Gauhati High Cour. Koladbar Phukan, (2003) 4 SCC $24 Gobind. State of MEP, (1975) 2 SCC 148 GGolak Nath State of anja, AIR 1967 SC Te43 Goodricke Groop Lav. Stat of W.., 1998 Supp it) SCC 707 Governor General in Counal Raleigh Investment Co, Ln, 1944 SCC OnLine TFC 10: AIR 1944 FC St Gorin Prasad v RG. Parad, (1994) 1 8CC 137 7 Gort of Mysore. JV. Bhat, 1975) 1 §CC 110 7 274, 298, 331, ‘72, 573,535, 577,58, 185, 285 347,398 44,608 25 sis 408 oo 21 10,33, 49, 57,298 2 285 » vs 32 ssl Cs 2» 583,611 us 37309 12 388, so” o on a 487,505 18 aor ry Cas 256 “i "260 “4, 5 385 68 3XXXIL_ Table of Cases (Gram Panchayat: Mabwinder Singh, (1985) 3 SCC 66t 400 Geant Sec. of Stat for India Coun, (1877) LR 2 CPD 448 S18 {Geonan x p 1925 SCC OnLine US SC 82:69 L Ed $27. 267 US87 (1925), ue GGojaraeUnineryv.Keshoa Reaganath Mudholkag, AIR 1963 SC 703 385 Gallapal Nagerwara Rao es AP-SRTC, AIR 1959SC 308... .-o... 38 Gulla Nagerwara Rao Ste of A, AIK 1959 SC 1376 38 GGanupat Keshvram Reddy NaGil Hasan, AIR 1958 SC. 636 104,213 GGarmukh Sigh e- Union of nda, 1963 SCC OnLine P&H 7: AIR 1963 Pan) 370 -.... 524 H. Anta Gove of TN (1989) 1 SCC 4 ae HLK (An fae), (1967) 2 Q3 517: (1967) 2 WLR 962 ef a Hamdard Davakhans 2: Unin of ladia AIR 1960 SC 854 2200000. 184,403 Hargovind Pan Raphkl Tis, (1979) 3 SCC 488 sis Har Krishna Bhargi. Union of india, AIR 1966 SC 619 a Har Vishnu Kamath « Ahmad shague, ATR 1955 SC 233, M6 Helvering Davis, 1937 SCC OnLine is SC117 1 LEA 1307 301 US619 (937) o... 451 mans Kumar Ros». oti Prokash Mier, AIR 1968 SC 1636 he, 338 Hinge Rampur Coal Co, Lido Seat of Onna, AIR 196 §C-459 leno Hira Nath Mishra Rajendra Medial College, (1973) 1 SCC 805 as Hecker Pharmaceaial Led. Sate of Biba, (1983) 4SCC 4S... 398 LN. Saksena State of MLR, AIR 1967 SC 1264 sa IER. Coelho State of TN. (2097)2 SCC 1 583,584 585,565, 589,590, Indi Cement Sete ofA (198) 1 SCC 743 199 Indi Cement Lid. State of. (1990) 1 SCC 12 3a Indian Mica and Micaie Indus State of Biba, 1971) 2 SCC 236 3,434 Indies Nebre Gandhi. Raj Nan, 1978 Supp SCC 1 28, 33,30, 123,295, 41, 1577, $80, 586,588,592, 613, Idea Sawhney. Union of od, 1992 Supp (3) SCC 217 arais Inmerstional Tourist Cora. Sate of Haryana, (1981) 2 SCC 318. 373, 388, 422,487,488 Inhwari KhetanSugae Mile P) Ld State of U.P, (1980) 4SCC136 «2. .- ss. 381,391 TCL, Agricnlural Prodoce Market Commitee, (2002) 9 SCC 232 3a TTCLid State of Karntaka 1985 Supp SCC 476 3a |. Pandurangarto» AP Publ Service Commision, AIR 1963 SC268 256 Jacob M.Puthuparamb -Kerda Water Authority, (1991) 1 SCC 28 “4 Jagannath Ramana Das Stateof Oca, ATR 1954 SC 400 ‘29 SJogtambika Pl v Union fli, 1999) 9 SCC 9S isi 33 Jagith Mier» Union of India. AIR 1964 SC-49) S41, 502 Sait Singh State of Haryana, (2006) 11 SCC 1 a2, 184 Jot Shankar Prasad, Sate of Bh, 1983) 2 SCC 597 Supra Associate Lid Stat of MP, (2008) 7SCC339 Jini Laxmanrao Pati os Chet Miniter, 2021) 8 SC Jor Suge Mill (P Le. Stv of MP, AIR 1966 SC 416 Joswane Singh - Sente of Puna (1991) SCC 362 Jesh Chandra Ghosh Hae Sedhan Makherjee, AIR 1961 SC613 Joy Engg, Warten Sot of W Ry 1067 SCE Cnt fe Cal 9: AUR 1968 Ca 9 Joya Bachchan: Union of Ini, (2006) 5 SCC 266 Joyanlal Amita Shodan EN. Rana, ATR 1964 SC 648 "70,86 18,463, 10 “nda Stainless id State of Haryana, (2010) 4 SOC 598 ‘Tidal Ssntess Lid Stare of Haryana (2017) 12 SCC 1 ‘dal Stainless Led.) State f Haryana, (2006) 7 SCC 241 43,436, 81,482, 86, 497,488,504 Tindal Stripe te, Stat of Haryana, 2003) 8SCC 60 499 Table of Cases XXXII K.A. Mathilagan vs Governor of EN, 1972 SCC OnLine Mad 242: AIR 1973, Mad 198 7 us K.C. Gaepai Narayan Dea uate of Ortsy AUR 1983 SC 37S 35 IK Kochunn Sate of Madras, AIR 1959 80.725, 2h KM Nanavat State of Bombay, AIR 1961 SC 112 165,183,602 KNogatajeState of AP, (1985) 1 SCC 523 135,52. KR. Labhmanan State of EN. (1996) 2500 226s. 19 K Ramanathan State of LN. (1985)? SCCHI6. = 86 KS. Poraswamy Aadhsar.5} Union of Indi, (2013) 1 SCC 4 1% KS. Poraswamy (Privacy) Union of nds, (2017) 10 SCC 1 2 KY. Krshnamaoi. Lali Kala Academy, (1996) $SCC 69 su KY. Subba Rao State of AP, (1986) SCC201 a allah Chander Asthann Sate of U.P (1988) 3 SCC 600 Ey KaleerL-Hind (P) Le. National Textile Corn (Mabarashrs North id, 2003) sec ind so Kalyan Stores Sat of Orin, Alf 1966 SC 16 7 Kenhiya Lal Omar sR. Trivedi (1985) 4 SCC 628 sa XantaKathoriav Manok Chand Surana, 1968) 35CC 265, ™ Kanu Sanyal Distt Magistrate, Daren, (1973)2 SCC 674 Ss Kanungo and Co 1 Callectoeof Caste, (1973) 2 SCC-438 INU as Kapoor Thakur Abdel Ghafoor 1974 SCC Onine Pat 11: AR 1975 Fat 13 ashinath Diksha Union of India, (1986) 9 SCC 229 52 Kedar Nath Singh State of Biba, ATR 1962 SC 955. an Kehr Singh . State (Delhi Adm), (1988) 3 SCC 603 148, 535 Kehar Singh Union of li, (989) 1 SCC 204 149,148 108,151,338 Kerala Edncation il 1957, re, AIR 1958 SC 956 Kesavananda Bharat State of Kerala, (1973) 4 SCC 225 165,104, 122,288,378, 608, 42,43, 44,123,221, 265, 293, 372,419, 482, 576,582, ‘84, $85, 58,591,603, 61), Kewal Krishan Puri State of Puja, (1980) 1 SCC416 3) hark Singh State of UP, AIR 1963 SC 1298 321,395,297 Khem Chand, Union of nda, AUR 1958 SC 300 : ‘7 Kioto Hollohan Zaki, 1952 Sopp 2) SCC 651 13,183, 50 Xing Bngerr es Sith ae 1948906 Online P3845) 72 ia2a fae 71,117,303 Kishan Chand Arora Comme. of Polis, AIR 1961 SC70S 0. oo. au Kishan Lal Laka Chand State of Haryans, 1993 Sopp (@) SCC 461 a Krant AsocatsP) Ld, Masood Abed Khun, 2010) 9 SC. 496 Ee Krishi Ups) Mandi Samco. Orient Paper Industries Le, (1995) 1 SCC SS mn Krishna Kumar Singh Stat of Bihar, (1988) § SCC 643 10 ‘Krishna Kumar Singh State of Bihar, (2017) 3 SCC 1 tt Kuldeep Singh». Comme of Police, (1999) 2SCC 10 2” Kuldip Nayar Union of India (2006)7 SCC 1 a Kali Singh State of Punjab, (1996) 10 SCC 639 58 Kali Sigh . Le. Governor, (1982) 1SCC.417 1s ‘Kamoa Mandal Vikas Niguas Ld Gia Shankar Poe, (2001) 18CC 182 53 346, 577, 587,599 ‘Laker Aieways Lid Dept of Trade, 1977 QB 643: (1977) 2. WLR 254 (CA) 305 Tala Ram Supreme Court of ladia, AIR 1967 SC 847 2 allabha opis Patel Union of india (1981) 2SCC 427 cy Laval Nomhern Spirit Led, 2003 UKHL 35 2003 ICR 856: (HL) 3 berey Oil Mise Union of nda, (1984) 3 SCC 465 “20, 324 Lily Thom, Union of adi, 2013) 7 SCC 653 60XXXIV. Table of Cases Lierigeo,Anderton, 1942 AC206 (HL)... + 300 oeal Gov. Board Arie, 1915 AC 120 HIE) soo. 7 a [M. Karunanidhi Union of li (1979) SCC 431 403,404 MIM. Gapea State of JK, (1912) 3S0C412 258 1M. Nagar Union of Idi, (2006) 8 SCC 212 58s, ss0 MLR. Bala. Stat of Mysore, AIR 1963 SC 649 i614, 618 (MS. Bnd Union fli, (898) 7 SCC 310 oan 285 MIS. Sharma Shree Keshna Sinha, AIR 1960 SC 1186 7 IMES.M: Sharma Sel Krishna Sina, AIR 1389 SC 395 14, 26,203,213 [MColloch» Maryland, 4 Ld 57%: 17 US Wheat) 316 (1813) 24,390,492 “Madan Gopal. State of Panjab, AIR 1963 SC 531 sa Madhav Rao Jv Rao Sind Union of Indi, 1971) SCO AS 2 3 ‘Madhakar GE. Pankaketo.arwant Chobildas Rajan (1977) 1SCC70 00... 178 ‘Madras ar Anas, Union of nd 2014) 10SCC1 as ‘Mabsbir Prasad Sharma Prafula Chandra Ghose, 1968 SCC Online Cal 3. ‘AIR 1969 Cal 198 ns ‘Mahothandta Pras Singhs Bitar LepsiasiveCounal, (2004) 8 SCC 747 12 ‘Mahader Prasad Roy oN, Chater, 1954 SCC OnLine Pat I: ATR 1954 Pat 285 =... S24 Mahesh Chandra Goes»: Union of Indi, 2009) 8 SCC273 as Maes Pasa Stat of U.Py AIR19885C7D ba Maj, Lachman Prasad, 1924 SCG OnLine AS: ATR 1924 Al1535| as Matta Singh Tacks State fPonaby AIR 1964 SC 381 «+0... 27 Malwa Bas Service (P} Led. x Seae of Pua (1983) 3 SCC237 ate ‘anak Lal, Prem Chand Singin, AIR 1857 SC-25 317,319 Daneks Gandhi (97a) 2 cc 248 220000." 6,214,295, 320, 324,602 ‘Mangull Chon. Manlal Miganlal, AIR 1968 SC822 2303 ‘Manna Jain Stat of Assan, AIR 1962 SC 386 30s Marbury #» Madvon, 2 L Ed 60:8 US (1 Cranchy 137 0803) 11,18, 600 ‘Mata Rn Union Inia, (981) 1 SCC 107 46 48,150 Matthews v.Chicory Mlrg, Bost 1938) 60 CLR 263 (Aust a Mayawati Markandeya Chan, (1998) 7 SCC S17 ite [MED v. Mohd. Yai, (1983) SC 229 7 ne “Medictnens and Related Clase of Goods (No 2) re (2001) 1 WL 700 (CAT fe Metcopoltan Properties Co, (EGC) Led Laaiaon (1963) 1 QB S77: (1968) 3 "WLR 694 (CA) ais Minerva Mille Ld. Union of 2, (1980) 280C 391, 10,21, 577, 580, 5, 58,390,596, 600 Ministry of information and Broadcasting: Crickee Ass. of Bengal (1995) 25CC 161 «2. 33 Moh Serajodin State of Orisa, (1975) 2SCC 47 a Mohinder Singh State of Pani 1977) 3 SCC 346 “9 Mohinder Singh Gl Chie lesion Comme, (1978) 1 SCC 405 560 Moti Rare Deka s: North East Fone Railway, AIR 1968 SC 600 521 837 539,545 Motes Solanki: tae of Rajah, 2013 SCC OnLine Raj 2782-0... 380 Mysore SRTC v, Khoia Mobiddi, 1968 SCC OnLine Kar 29: AIR 1969 Nis 41 su IN. Jejebhoy « Cllector, ATI 1965 SC 1096 33 1 Somasundaram Sat of Mader, 1956 SCC OnLine Mad 15: AIR 1956 Mad 419... 524 ‘Nabam Reba e Bamang Felix» Deputy Speaker, Arunachal Pradesh Legislative ‘Asem (2016) 8 SCC 1 107 ‘Naga Peoples Moverent of Human Right Union of adi, 1998) 2 SCC 109 1... 41S [Natar Mahapalika, Vacanati Durga Das Bhattacharya, AIR 1968 SC 119 a Nain Soh Da, Sate of UP, AIR 1953 5C 384 3 Nakada Altes MF De. 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Union of India, (1984) 3 SCC 654 : rafal Kumar Maker Bank of Commerc Lal 1947 SCC Online C6 (1946-47) 41a 28 Peaap Sigh Sut of Pani AIR 964 SC a Peapnh Ras ane Coe of G59 5 alin AIR 1999 Bom 53 ee 1 Pre Svat. Sat M1998) 7 96 120 te rem Chand Garg Exc Comme AI. 1963 5C 996 34,250 Presidential Pol, (1978)2 S033 Sa Parushothaman Nambudiri v. Seate of Kerala, AIR 1962 SC 694 198 ow sre Metropolitan Sentry Magra exp Pinochet Ug (No (2000) 1 AC 119: (1999) 2 WLR 272 (HL) mee * 313 Rt Chi Constable of Suse exp ntratinal Teader acy Led 9) 3 AC 418: (1998) 3 WLR 1260 (HL) .... nets 330 ts Chil Sie Appeal Boa x p Consiga (993) # Al ER 310 (CA) ca Rt Bltcty Commision (1928) TKR 1 (eA) ms 5b Gaming Bae for Gra esi = p enim and Kids, 9052 QA (1970) 2 WLR 1009 (CA) ah RSXXXVI Table of Cases 1. t Higher Education Funding Coane ex p latte of Dental Surgery, (1994) 1 WLR 242 a [Rts INC; x p National Fedrat on of Seif Employed and Smal Businenes Led "ged AC #1. (1981) 2 WLR722 (HL) 2374 Rs. 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Sate of Haryana, (2000) $SCC 170.» 192 Saeane Singh Sawhney v Passport Ofer, AIR 1967 SC 1836 m Sueavie Singh Union of Indi, 1985) 4 SCC 252 Ls Seu Casoms Act, 1878, Section 20(2, re, AIR 1963 SC 1760 38,38 Second Gift Tax Office» D.H. Nazateth (1970) 1 SCC 749 73 Stcunderabad Hyderabad Hotel Owner Ast. Hyderabad Manipal Corp {19992 8cC 274 as ‘ee. of Stat for Edacation and Science, Masopolian Borough Gouncilof “Tameside, 1977 AC 1014 (1976) 3 WLR 641 (CA fe HL) st Sham Lal (1978) 25CC 479, as Shankar Bas. Union of India (1885) 2 SCC 388 ‘st Shankar Prasad Singh Dear, Union of nda, 1951 SCC 966: AiR 1951 SC 438. 360,571, 573,574,583, 584,891, 93, Shanti P.Gaikwadv. Savjbhai Habba Patel, (2001) SC 101, a7 Shenton Smith, 1898 AC 229 (PC) cas SheonandanPaswan Seat of Bikar, (1983) 1SCC 438 Cus Sherif of Middlesex case, [1840] 11 Ad 8 E273: 113 ER 49 27 Shib Soren: Dsyunand Sahay, 2001) 7SCC 425 rm Shore Poole Corp, 1826 Ch 661925 All ER Rep 7% (CA) 30 Shree Digiay Cement Go, La. v State of Rajasthan, (2000) 1 SCC 68 03, Shree Mahavie Ui Nils. Seateo Jock, 1996) 11 SCC 39 1 ‘She gray Cement Co» State of Rajarthan (1997) 5 SCC 4D i 03 ‘She Rama Sagat Indies Ld. State of AP (1978) SCC 534 7 sos ShekaneBhalchands Karulkar Stat of Guat (1994) §SCC-459 70 Shrilela Vidyarh State of Ui, 1991) 1 SCC 212 III go Shyamal State of Us AIR 1954 SC 369 S37,.46 Siemens Engg. 8 Mig. Co, of laia Lie: Union of Inia, (1976) 2 SCC 981 29 Sei Le Textiles Commitee, 1989 Supp (1) SCC 168 SIXXXVI Table of Cases Southern Pcie Co, Jensen, 197 SCC OnLine US SC 17: 61 Ed 1086: 244 US 208 1917) 339 Southern Pharmaceuticals and Chia Seat of Kerala (1981) 4 SCC 381 a1 Southern Railway. TR, Chllppn, (1976) 3 SCC 190 sa Special Cours Bil, 1978, re (1979) 1 SCC 380 52,104, 248,288,289, Special Reference No.of 1993, 1993] 1SCC 642 288 Special Reference Ne 01998, (1998) 7SCC 739 351,247, 10 Stenivasa General Traders Seat of A, (1983) 4 SCC 353 : a3 State Bank of Patil, SK, Shara, 1996) 3SCC 363 peaiaas Sate ofA. Hindasan Machine Tools i (1979) 286C 374 a9 State of AR. tN. Ramanaah, (2008) 7SCC 165... i sas State of AP. NTPC Lid 2002) 5 SCC 203 CII geo State of Asam 1, Ranga Mihamma, ATR 1967 9C 903 260 State of Bare Bal Mekund Sah, 2000) 49CC 640... 257 ‘State of Bihar, Bar Chamber of Commere, (1996) SCC 136 CIT. aes State of Bae. Charosila Das, AUR 1959 SC 1002 C30 Seat of Bihar». Gopi Kishore Prasad, AIR 1960 SC 659 S40 State of Bihar Havihae Prasad Deka, 1885) 2SCC 182 sas Stat of Bae v. Kameswar Singh, AIR 1952 SC252 Ls Seat of Bae». Union of fai, (1970) 1 SCC 67 2 Seat of Bombay » FIN Balers, 151 SCC 860: AIR 1951 86318 392,393 State of Bombay K.P. Krishnan, AIR 1960 SC 1223... L307 Stat of omy o RIM.D. Chamrbaugwala, AIR 1957 SC 698 363,507 Seat of Bombay .Saubhagehand M. Dosh, AIR 1957 SC 892 37 Stat of Gujarat: 8. Tepathy, 1956) 2 SCC 373 20 State of Gujrat, Shantal Manglda, (1968) 1$CC S08 a6 Stat of JK ». Toki Nath Khoss, (1974) 1 SCC 19, 08 Stat of Kematakae. RanganatheRey, (1977) 4 SCC 471 401 Stat of Karnataka o: Union of ln, (1977) 4 SCC 608 SI an Sracaiz ao State of Kerala ts AB, Abdul Kadi, (1969) 2 SCC 363 8 State of Kerala A. Lakshskaty (1986) 4 SCC 632 239 State of MP Baia Bhai, AIR 1964 SC 1006 98 State of MP Bharat Singh, AIR 1967 SC 1170 ios 3aat State of M.Pu Bhupendea Singh, 2000) 1 SCC 535 “10 State of MP tChintaman SadastvaVaishampayan, AIR 1961 SC 1633 533 State of M.P u: Ramashanker Rayhwvanshi, (1983) 2SCC 145 os. o...-c00 sees 308, SL State of MP Shard Singh, (1970) 1 CC 108 sus Sate of Madras: Champakam Dorian, 1951 SCC 351 AIR 1951 86226 33 Sate of Marat N.C. Natarja Modala, AIR 1968 SC 147 ‘4 State of Mads: Vi. Row, AIR1952 SC 196 283 State of Maharasherae Salvation Amy, Western iia Teritory (1975) 1 8CC309<.. 129 Sate of More H. Sanjecviah, AIR 1957 SC 1189 -.--- é 50s ‘State of yore M.H. Bellary, AIR 1965 SC 868 III! s20 Sate of More Shinabasapp Shvapps Makpar, AIH 1963 SC 378 a3 ‘State of Oren: Bhopendra Kune Bose, AIR 1962 SC 945 104, 160 ‘State of Orie Binapani Dei, AIR 1967 SC 1268 31, 321, 323 Stat of Orisa» M.A, Tulloch &¢ Cy AIR 1964 SC 1264 383 Seat of Ores» Madan Gopal Rng, 1951 SCC 1024 ATR 1982 SC 12 a State of Orisa» Ram Narayan Dis, Ae 1961 SU 177 Son Stat of Punjab, Dayanand Medisi College and Hopital, 2001) 8 SCC 668 36 Stat of Panjab . Sat Pal Dang, AIR 1969 SC 903, 13,127, 128, 155,187,208 Stat of Panjab Sukh Re Baad, AIR 1968 SC 1089"... 541, 5 State of Punjab . VK. Khanna, (200! 2 SCC 330 sa Stat of Rajaton x G Cha, AIR 1959 SC 544 334 Stat of Rjeathan Union f Ina, (1977) 3CC $92 105, 1,271,411, 419,409 State of TIN.» Adhiyaman Eauctional 8 Research lesie, (1995) 4'SCC 108 386 Table of Cases XXXIX Sate of TN. 1 S¥.Beatheep, 2004) 4 SCC 513 - 36 State of LN. Solas Mil, (1974) 4806408 i os State of TN. x Thu KN. Perumal 1996) $SCC474 ooo. 533, sua State of UB. Babu Ram Upedy, ATR 1961 SC 751 50 Batak Deo Pat Tripathi, (1978) 2 SCC 102 20 (Chandra Moan Nigam, (1977)4SCC345 1.11 a8 Sate of UP. Karta Singh, AIR 1964 SC 1138 : a7 Sate of LPs. Manbodhan ial Srivastava, AIR 1957 C912 516 State of UP.» Mohd. Nooh, ATR 1958 SCR6 515,314,580 1 Prem Lata Mise, (1984) 4 SCC 189, 54 0 Raa Ram Jaiswal, 1985) 3 SCC 131 m9 State of UE. Ram Naresh Lal (1990) 380 173, ert Sate of UE. Shyam tal Sharma, (I971)2CC514 30 State of W.B-r. Anwar Ali Sarkar AIR 1952 SC75 ae Sate of W.B. 1 Bela Banerjee, AIR 1984 SC 170 as Sate of W.B. 1, Kesorm Industries Lid, (2004) 10 860301 Seu oes State of W.B. 1; Union af nda, AIR 1963 SC 1 414, 419,87 State Trading Corp. of Indi Lid v. CTO, AIR 1963 SC 181 07 STO vie Mills ed (1977) 45CC98 30 Sock , Hansard 1839) 9 Ad 8 B11: 12 ER 1112 27 Sub-Committee of Judicial Accountability Union of india, (1981) 4 SCC 699 33 Subhash Sharma: Union of India, 1991 Supp (1) SCC S74 231,28 Sudhindra Tira Swamiar». Comme, Hinda Religious and Chattte “Endowment, AIR 1963 86966 oy Sukhdev Singh. Bhagsram Sardar Singh Raghuvanei (1975) 1 SOC4ii ‘ Supreme Cour Advocste-on-Record Ass, Union of india (1993) #SCC 44i 332,351, 235,238,242, 247,269,432, $65, 610 Supreme Court Advocate-on-Recod Ase, x Union of India, 2016) $8CC1 + 248,246, 587,588, 519 Supreme Court Bar Assn: Union of Inds, (1998) 4 SCC-409 coe 30 Suresh Kamar Koasbal «Naz Foundation, (2014) SCC 1 au Strya Dev Rav, Ram Chandet Ray (2003) SCC 675 w7 Swadesh Cotton Mills, Union of diy (2981) 1 SCC 664 ater ae Swaran Singh State of, (1998) 4SCC 7S Ts, at0 Spdoey Manicipal Council. Campbell 1925 C338 (2) 37 TC. Basoppa oT. Napapps, AIR 1954 SC-440 oe a “EN, Shan «Union o India, (1995) 4 SCC 611 : 357,58 1. Venkata Reddy Sate of Py (1988) 3CC 198 164 159,160 ‘Tarachand Damu Swart State of Maharastra, AIR 1962 SC 130 6 ‘Tata Press Led. MTNL, (1998) $SCC 139 III 34, ons “Teh Cheng Poke able Prosecutor, 1980 AC 458 (1979) 2 WLR 623 (PC) 2 “Te Kian Jain. N. Samo Reddy, (1970) 2 CC 272 : 2s “Tel Sag tae of UP, (1886) SCC 604 20 “Thicumuruga Kirupananda Vriyar Thavathicw Sundar Swarigal Medical ‘Edacational& Chattable Taso. State of TN, (1996) 3SCC 15 as ‘Tha Ramo. Saeof UP, AIR 1956 SC.676 S81, 391,403, ‘Tilkchand Motichand FB. Mansi (1969) 1 SCC 110 ae 26 ‘TISCO Led. Sate of Bhar, AIR TBSH SC 452 : Sa UN.R.Rao «Indira Gandhi, (1971) 256063 oe 1s UR. Warehousing Corp» Vay Narayan Vsipayee (1980) 3 SCCASS 3B ‘jam Bai. Sate of UP, AIR 1962 SC 1621 ‘302,38 Union of tia. Arun Kama Roy, (1986) 1 SCC 678 a Union of lia. Assn for Democratic Reforms, 2002) SSCC 394 v0... 610XL_ Table of Cases Union of fadia «Babi Singh (198) $ SCC 216 sss Union of Indias City Muriipal Council, Rani Bennur, 1999 SCC Online Rar 323 “AIR 2000 Kar 104 “ Union of india. Comm of Saitgan) Municipal, (1975) 1 SCC 676 “a nin of India. E.G. Nambudii (1991) 3 SCC 38 me Union olds . Ganayarhany (1997) 7 SCC 463 a Union of india. Gurbux Singh, (975) 3 SCC 638 bas Union of lia H.C. Goel, AIR 1968 SC 364 se Union of lia. H.S. Dhillon, (1971) 2 SCC 779 3,73 Union of dia Jot Prakash Miner, (1971) 1 86396 247 ‘Union of dia. MLE. Red (1980)2 8CC 13 ‘49 Union of da Mohd. Ramtan Ehsn (1981) 1SCC S88 53 Union of nda vs Municipal Hoard, Lacknow, 1957 SCC OnLine All23: At 1957 ‘allas2 4a Union of India PS. hry, (98112 SCC 761 sia Union of Inia Sankalchand Hinatll Sheth, 1977) 4 SCC 193 259,588 ‘Union of tdi Sat of Mysore, 1976) 4 SCC $31 mm sion f lis Swathi Cotton Mils Co. id, 1979) 4 SCC 295 ms sion of Inia TR Varna, AIR 19S? SC 882 sa Union of di . Tata Pee, (988) 3 SCC 398 31, 20, $52 Union of india Tashar Ranjan Mohaney, (1994) §SCC 450. 522 United States Bea, 1981 SCC Onkine US SC 12:75 L Bd 384; 282 US 304 (85H) © 147, 148 Unite Sates Baler, 1936 SCC OnLine US SC 12 80 L Ed 477,297 US 1 (1936) = 480 V. Guraiah Naida & Son, State of TN. (1977) 1 S234 199 VP Ahuja. Sat of Panjab, 2000) 3 SCC 239 5 am Orgaic Chemicals Led. Sat of UP, (1997) 2SCC 78 Bs Video Elecronis () Ld,» Sate cf Punjab (1990) 3 SCC 87 Sor, $02, 503 Wiay Kumar Sharna v. Sate of Karnataka, (1990) 2 SCC 562 398,401, 402 Vinay Chandra Miss, x, (1995) SCC 584 290 Vine . National Dok Labour Bead, 1987 AC 86.1957) 2 WLR 106 fl) su Vinee Narain Union of India, (1738) 1 SCC 226 101,291, 408, 604, 610 Voshaks State of Rajasthan, (1997) 6 SCC 241 291,608,610, Vishnu Agencies (P Lids. CTO, (1978) 1 SCC 520, 390 ‘isreswaaiahTecbnologial University v.Kesbnendy Halder, (2011 4 SCC 606 386 [W.B,Hosiey Asse State of Bibs (1988) 4 SCC 134 so. Wallace Bros. 8 Co ed CIT, 848 SCC OnLine PC (1947-48) 7918 86 38 ‘aman Rao Unio of India, (1981) 2 SCC 362 577, 585,584, 585, 90 Waryam Singh t- Amarnath, AIR 1954 80218 346 Wason . Waker, (868) LR Q873 a0 Waverly Jute Mills Co. Led. Raymon 8 Co nl () Led Alf 1963 S690 ae Western Coal Led Special Ava Development Authority (1982) 1 SCC 125 40 Weston Electronics State of Gujarat, (1988) 2 SCC S68 00 Yashpal State of Chhatiagah, 2005) § SCC 420 aes Zaverbhai Amsidas vy, State of Borisay, AR 1954 SC 752 eos 400, 402 ee Telefns Ld. Union of Ini, 2005) 4 SCC 649 295 Chapter 1 Constitution, Constitutional Law and Constitutionalism Overview 1. Meaning of Constiution + Conventions ofthe Consticution “= Instieutions Ideas = Rules ML Concept of consttetonalism ‘+ Ideas are important clements of 4 * Supremacy ofthe Constitution Constication + System of representative and 1, Consitational law responsible government * General + Dispersal of power * Rules contained in the document Protection of individual rights known as the Constitution of + Creation of politically neuteal India zones + Rules of procedure Parr I MEANING OF CONSTITUTION! Constitution relates to the governance of a country. It provides the frame- ‘work within which the governance is carried on. In order to grasp its mean ing correctly, one has to understand the theee important elements which form part of a Constitution. These we can call institutions, rules and ideas. It is necessary to discuss these three elements a little in detail, LILA Institutions A Constitution establishes government which governs the country. The gov- ernment is itself divided into organs or institutions. Broadly speaking, these are the Legislature, the Executive and the Judiciary. It is believed that the governing function involves the making of laws, execution of laws, and “I. See, KC. Wheare, Modern Constitutions (OUP, Oxford 1996 (19782. Chap. 1 Constitution, Constitutional Law and Constitutionalism interpretation of laws and settlement of disputes. Accordingly, these three functions are entrusted to the abovementioned three departments respec- tively, This has to be done because some rough division of functions and their entrustment to the care of separate hands is a necessary ingredient of any scientific arrangement of functions. This is done also because of a belief that separation of governmental powers and their entrustment to separate departments is a prerequisite for ensuring individual liberty. This aspect of the matter has been examined elaborately in Chapter 4. Whether the reason is purely practical and functional or itis doctrinal and ideolog- ical, the Constitutions, including the Constitution of India, do indulge in some division of legislative, executive and judicial powers and functions and deal with che three departments—the Legislature, the Executive and the Judiciary—in some detail. It is also possible that the governmental powers may be divided between two separate layers of government. The ‘whole country may he divided into many regions geographically and some powers may be given to the governments of the regions and the rest may be left with the government of the whole country. In such an arrangement it may be necessary to provide for the whole paraphernalia of Legislature, Executive and Judiciary at both the levels. This is what has been done in the Indian Constitution. Even otherwise, it is an imperative of participa- tory democracy that there should be more and more decentralisation and devolution of governmental powers and functions to the lower rungs of self-governing institutions. This is particularly done in the matter of organ- isation of civic life. But th is not considered an important enough matter to be provided in the Constitution, However, if is not otherwise possible, constitutional provisions may be necessary to ensure the continuance of self-governing local institutions and to ensure that they are not starved of functions and funds. The example of India is apt. The Constitution 73rd and 74th Amendment Acts, 1992 had to be passed to strengthen the system of local self government ir India in villages and towns. Legislature, Executive and Judiciary are short terms to describe a huge machinery of government employing vast number of people. Legislatures are manned by people who contest elections, generally on party lines. This ppee-supposes organisation of political parties. Executive function is per- Formed by a large number of public servants. This involves organisation ‘of public services. Even at the top there may be a separation between the formal and efficient part of the Executive. Thus in India, as we shall see in Chapter 5, the executive powers of the Union and the States are formally vested in the President anc: Governors respectively. But they are required to have Council of Ministers with a view to aid and advise them. We shall see that itis the Ministries which wield the real power. The judicial function is also performed by a hierarchy of courts and tribunals, spread over the whole country, at the apex of which happen co be High Courts and the Supreme Court. Part I: Meaning of Constitution 3 But the Constitution does not, and cannot, deal with the whole gov- cemnmental machinery. It deals only with the principal institutions of the government. However, there is marginal scope for difference of opinion on the question as to what are the principal institutions of government which should be dealt with in the Constitution. The framers of the Constitutions of different countries may have different perceptions and priorities. Thus, the Indian Constitution deals with Parliament, State Legislatures, President, the Governor, the Council of Ministers at the Centre and in the States, the Supreme Court and the High Courts. In addition, it has provisions which give security against arbitrary dismissal and removal to certain catego- ries of public servants. Subordinate Judiciary is mentioned to ensue its independence from the Executive. Political parties are left to be privately ‘organised; but the Constitution takes cognizance of them and provides for sanction against Members of Parliament or of State Legislatures defecting from the parties on whose tickets they were elected. Certain other insttu- tions also find considerable space in the Constitution, Election Commission is there to ensure impartial election; Public Service Commissions are there to ensure impartial recruitment to the public services; and the institution of ‘Comptroller and Auditor General has been created as a watchdog of public funds. They, along with the Judiciary, constitute politically neuteal zones in the competitive politics of democracy. LLB. Rules ‘The governmental institutions are organised and function in accordance with the rules. Rules provide for their composition, prescribe their pow- cers and functions and delimit them, and determine their relations inter se and also with the people. These rules may be gathered from the document, if any, known as the Constitution of that country; from the organic laws passed by the Legislature; judicial decisions interpreting the rules found in the Constitution or in the organic laws; and from constitutional customs and conventions which are bound to develop in due course of time in every ‘country. It would be necessary to elaborate on all these categories of rules. 4 (a) Rules of the Constitution ‘When the people of a country, in the course of their history, have a serious political break, they decide to make a new start by defining or redefin- ing their political institutions for their future governance.’ They bring irto ‘existence an instrument of government which contains such rules of gov- fernance as are considered important enough to be put in that document. ‘Thus, when India attained independence on 15 August 1947, the people of India adopted a new instrument of government, the Constitution of India, 2 Wid4 Chap. 1 Constitution, Constitutional Law and Constitutionalism in their Constituent Assembly on 26 November 1949. That document, as amended up till now, isthe principal source of the rules relating to the formavion and functioning of the principal governing institutions in India “Though a document like the Constitution of India is generally found in all the countries today, butts nota logical necessry. For example, Britain doesnot have anyehing like this or its governance. However, for this rea- son it cannot be said that Britain does not have a Constitution. The truth about Britain is thatthe principal rules of governance operative there have to be gathered exclusively from ancient charters, laws passed by Parliament from time to time, judicial decisions and conventions of the Constitution, Ia country like India, as we shall see below, these are the supplementary sources, whereas for Britain these ae the exclusive sources of the rules of governance, Itis not that tis distinction is totally without significance. In view of the multiplicity of sources the rules have to be putin hierarchical order in terms of thie validity. In eis hierarchy the rules contained in the document known as the Constitution have the supreme position and all other rules are subordinat= to the Constitution. All the principal insttu- tions of government including ehe Legislature owe their origin to this and derive their powers and faactions from it. Consequently, any legislative or executive act inconsistent with the rules ofthe Constitution would be void and the superior courts of aw have the power to so declare. This is known as the power of judicial review and shal be discussed in Chapter x8. What is imporeant to be noted t that all this is not possible in a country like Britain which, instead, accepts the principle of supremacy of Parliament and does not have a formal code which may be known as the Constitution of that country I is also said that Britain has an unwritten Constitution. It is obvious that this statement is also not true if it isto be understood literally 1ALBAb) Organic laws ‘Organic laws supplement the cules of che Constitution. These are the ordi- nary laws passed by the Legislature and are called organic because they relate to the organs of government. Even the principal institutions and ‘organs ofthe government cannot be entirely dealt within accordance with the rules contained in the Constitution alone. Their problems are mani- fold and functions are multifarious. The framers of the Constitution of a country have, afterall, to keep the size of the document within managea- ble limits. Consequently, eaey have to make a selection of important rules ‘which involve issues of principle and policy. The basic difference between the rules contained in the Constitution and those contained in the organic Jaws les in this thatthe rales of the Constitution cannot be altered with the same ease by the Legislature as the rules contained in organic laws. “Therefore, the rules which are considered to be more sacrosanct are kept in Part I: Meaning of Constitution 5 the Constitution and the rest are left to be provided by the Legislature in ordinary laws. ven a detailed Constitution like that of India has not obviated the neces- sity of being supplemented by rales contained in organic laws. Thus, the Constitution has only skeleton provisions for the composition of Parliament and State Legislatures and their working. They had to be supplemented by the Representation of the People Acts of 1950 and r9sr. Similarly, the Constitution only provides that Judges of the Supreme Court and the High Courts can be removed before they reach their age of superannuation only ‘on the ground of their proved misbehaviour or incapacity. The detailed rules, in this respect are provided in the Judges (Inquiry) Act, 1968. The impor- tant offices under the State can be occupied only by citizens and some of the Fundamental Rights are also available only to the citizens. But citizenship is determined under the Citizenship Act, 1955. In Part II ofthe Constitution there are some articles which relate to citizenship, but they were possibly meant only to determine certain issues which were of immediate impor- tance. And Article rr of the Constitution expressly provides that in case of any conflict between the provisions of Part Il and the Citizenship Act be enacted by Parliament later on, itis the provisions ofthe parliamentary ‘enactment that would prevail. Therefore, we can say that Representation of the People Acts of r950 and 1951, Judges (Inquiry) Act, 1968 and Citizenship ‘Act, 1955 are examples of organic laws which supplement the provisions of the Constitution on vital constitutional issues. Incidentally, it may also be pointed out here that the example of the Citizenship Act, 1955 illustrates another peculiarity of the Indian Constitution. There are provisions in the Constitution which despite having been made part of the Constitution can be overridden by an Act of Parliament enacted in the ordinary manner. We shall come across many more examples in Chapter 17 when we shall dis- ‘cuss constitutional amendment. This should be taken as an exception to the rule that a constitutional provision has higher sanctity in comparison to an ordinary legislation, LLB(c) Judicial decisions Rules of the Constitution or rules contained in an organic law may need explanation or interpretation. Two rules of the same status may overlap and conflict; or a rule may be capable of bearing more than one meaning; or no rule may be exactly applicable to a situation which has newly emerged; er a rule, if interpreted literally, may prove to be too harsh or even absurd. In all such situations the superior courts of law of a country are required to interpret the rules imaginatively and creatively. These creative interprets- tions of the courts become parts of decisional law as precedents and serve as supplementary sources of the law of the Constitution. Two examples from the decisions on the Indian Constitution should serve as illusteations.6 Chap. 1 Constitution, Constitutional Law and Constitutionalisin Article 12 of the Constitution of India defines “the State” for the pur- poses of the Fundamental Rights because most ofthe rights are guaranteed against State action. The definition after enumerating afew specific entities adds the expression “any other authority within the territory of India or under the control ofthe Government of India". The Supreme Court of India, ina series of creative decisions, ha held that public statutory corporations,’ government companies* end even registered societies’ with enough nexus ‘with the government constitute “the State” for the purposes of Article 12. Again, Article 21 of the Indian Constitution says that “No person shall be deprived of his life ot personal liberty except according to procedure established by law”. The Supreme Court in 1950 in A.K. Gopalan v. State of Madrast (A.K. Gopalan) had held that procedure established by law, ‘meant any procedure prescribed by an otherwise valid law and that the courts did not have che jurisdiction to judge the reasonableness or otherwise of the procedure. After 2f years in Maneka Gandhi v. Union of lndia’, the Supreme Court took a totaly different view. Itheld that no procedure could be deemed to be a procedure established by law unless the same was fair, just and reasonable, This example solves the problem of the relative legal importance between the text of the law and its interpretation by the court ‘contained in a judicial decision. The Constitution is supreme but it means what che Judges say it means. 1 (d) Conventions Rules contained in the document known as the Constitution, organic laws ‘enacted by the Legislature, and judicial decisions do not exhaust the list of the rules which go to make the rules of the Constitution of a country. They are supplemented by non-legal constitutional practices and understandings ‘which are known as constitutional customs or conventions. The latter term hhas been popularised because of its use by Prof. A. Dicey in his cele- brated book, An Introduction to the Study of the Law of the Constitution.’ Convention denotes an ag-eement and it isin this sense that the term is used in international law. But ix this technical sense constitutional practices can be called conventions only if we broaden the idea of agreement to inclade implied agreements as well. Then we can say that when constitutional prac- tices are of sufficiently lorg origin and have hardened to an extent that the constitutional functionaries fel themselves bound to follow them, they can be said to have taken the shape of conventions, Before that they can be said to be only constitutional usages which are yet to mature into a constitutional “F.See Sate Singh, Bhagaam Sardar Singh Raghusansh, (1975) SCC 43. 4. See, Contra Inland Water Tronsport Corp. Ld. rojo Nath Ganguly (986) 3 SCC 156 5, See, Ay Hasta Khalid Mai braver 981) 1 SCC 733, % ‘ 1950 SCC 238 AIR 195 SC 37 (978 SCC 248 th Ed, ELBS &e Macmilun, London 2968 (1973 Pt Part I: Meaning of Constitution 7 custom or convention. However, Sir Ivor Jennings? has pointed out that apart from long practice and the belief among constitutional actors that they are bound by the practice, there is also a third requirement which :must be fulfilled before we can give to a constitutional practice the name of constitutional convention. The practice must have a reason behind it and this reason should be related to the prevailing constitutional theory. In is absence a practice can be broken without causing any disquiet or political heart-burning. For example, in India the Finance Minister is quite often a ppetson from the Rajya Sabha or the Council of States. But in the UK the practice has developed that the Chancellor of the Exchequer should be from. the House of Commons. The fact is that the Lower House has complete control over finance and the Minister concerned should be available in the House to answer the queries and to clear the doubts. In this respect the rale in the UK is that a non-member cannot participate in the proceedings of a House whereas in India a non-member is allowed to participate in the proceedings of the House, though he cannot vote." This clearly explains the difference in the prevailing practice in the two countries as to who can hold the finance portfolio. In the context of Britain, Dicey’s discussion of the topic was largely confined to the conventions which determined the mode of exercise of the discretionary powers of the Crown." Later writers like Sit Ivor Jennings showed that the conventions occupy the whole spectrum of government including the relations of the UK Government with the members of the ‘Commonwealth.! In India the institution of parliamentary government, of course, is based on the assumption that British conventions in this respect ‘would be largely followed. But constitutional provisions in other areas also presuppose the development of healthy conventions; lest the powers are used in a manner that they defeat the basic constitutional principles. The entice gamut of Centre-State relations and the executive power to appoint Judges to the High Courts and to the Supreme Court and the power to transfer High Court Judges can be putin this category. The above examples can be ‘multiplied. The factis that the whole politcal machinery of the government needs both law and conventions for its smooth functioning. These conven- tions play a variety of roles. They supplement the constitutional text. An illustrative case is the convention that the Deputy Speaker o the Chairman of the Public Accounts Committee should belong to an opposition pary. They modify the Constitution. For example, the Constitution of India speaks of the Council of Ministers forthe purpose of giving aid and advice to the President or the Governor. as the case may be. But this function. in 3 Sic ivor Jeaings, The Law and she Constitution [sth Ede, ELBS 8 University of Londn Press Lic London 1971 (19721 134-36. 10, Se, Art 8 and #77 ofthe Conan of India LU. AN. Dicey, Ar Inuroduction tthe Stuy ofthe Law ofthe Constitution roth Edn BLBSS “Macmillan, London 1968 1973} Pk 12, Sie vor Jennings, The Law ond the Constitution [th Edn, ELBS & Unveesty of London Press Led Landon 2975 (el 34-368 Chap. 1 Constitution, Constitutional Law and Consttationalism practice, is performed by 1 small committee of the Council consisting of ‘Ministers of the Cabinet rink. This modification was, in a way, acknow!- ‘edged by the Constitution ‘44th Amendment) Act, 1978 when it mentioned “Cabinet”, and not the “Council of Ministers” in Article 352 while pro- viding that the emergency would be proclaimed by the President only on getting a written advice from the Cabinet to that effect. Conventions also determine the mode in which constitutional powers are to be exercised. The rule chat the President or Governor is to act in accordance with the advice tendered by the Council of Ministers falls in this category? ‘When conventions fail to serve an important constitutional principle, more formal rules have tc be devised to ensure its due observance. This ‘may happen because the expected convention has not developed or because the non-legal nature of the sanction behind the convention is found to be too weak, or it is apprehended that it may prove to be too weak to restrain stubborn polticiens. Thus, in view of the controversy whether the President was bound to act on the advice of the Council of Ministers, it was thought necessary :0 provide it specifically in Article 74(1) of the Constitution by the Constitution (42nd Amendment) Act, 1976 that “there shall be a Council of Ministers with the Prime Minister at che head to aid and advise the President who shall act, in the exercise of his functions, in accordance with such advice”. Similarly, as a result of the change brought about by the Constitution (44th Amendment) Act, 1978, Article 352(3) of the Constitution specifically provides that the President shall not issue a proclamation of emergency “unless the decision of the Union Cabinet that such a proclamation be issued has been, communicated to him in writing” This was done because the internal emergency of 1975 was proclaimed on the advice of the Prime Minister alone and the matter was only reported to the Cabinet. In the area of Centre-State relations the Supreme Court of India in S.R. Bommai v. Union of India has so interpreted Article 356 of the Constitution as to read judicially enforceable restraints on the powers of the President to proclaim President's rule in a State. It appears that the ‘court was moved to take such a view because healthy conventions were not emerging and public opinion was proving to be too feeble a restraint on the abuse of constitutional power by determined politicians having no consid- eration for the future of the polity. We shall see later in Chapter 8 that the Supreme Court has similarly circumscribed by interpretation the powers of the President in relation to the Judiciary. Hire it becomes necessary to examine the relationship between law and conventions. Dicey distinguished conventions from law because while a rule of law can be judicially enforced, conventions cannot be. He also thought that the breach of quite a fow of the conventions would ultimately lead to a breach of law and this he mistakenly thought was the real force behind the ‘T.Sew, Are 740 af the Contittion. Belore the specific incorporation af he principe i Ar. ‘al by she und Amendnen Act 1976 the pope operated by the fore of convention, 14, (0994) 3 SCC tev ale, the dgcuasion in Chap. 4 Pare I: Meaning of Constitution 9 efficacy of the conventions.” For this he has been criticised and the most trenchant criticism in this respect has been made by Sit Ivor Jennings.* Bur even Jennings concedes that there is a distinction between a rule of con: stitutional law and a rule of constieutional convention, though in his view the distinction is only one of degree. Firstly, a breach ofa rule of constitu- tional law can be judicially pronounced which removes all scope for doub: and disputation. Secondly, rules of law (except those found in judicial deci- sions) are precisely formulated and one knows when they come into force. Conventional rules, on the other hand, grow slowly and iti difficult o tell the precise moment when they become binding. Moreover, their frequen: breaches, instead of stigmatising the breaker of the rule, may go to show either that the rule is not yet binding or that i is in the process of losing its binding character. Thirdly, the psychological impact created by a rule oF law coupled with a legal sanction is decidedly greater than the sanction o' public opinion which is the sole driving force behind the observance of ¢ convention. Still, Jennings’ view is that conventions are generally observec and they are observed because they are rules of honour.” But Indian expe- rience indicates otherwise. We have already seen that when they prove inef- fective they have to be substituted by rules of law, or they have to be treatec as part of some rule of law by interpretation of the courts. Courts car. ‘even otherwise take cognizance of conventions even though they may not be directly enforceable, and this may have important legal repercussions Thus, even before the aforesaid amendment of Article 74(r) of the Indian Constitution by the Constitution (42nd Amendment) Act, 1976 stipulating that the ministerial advice shall be binding on the President, the Supreme Court of India in a series of cases assumed that though the executive power ‘was formally vested in the President and the Governor, the real power was wielded by the Council of Ministers.* Tecan legitimately be asked why leave something in doubt by depending on conventions instead of providing it expressly, inthe text of the Constieution, ‘The answer is that there are certain areas where a rule of law cannot be a substitute for a constitutional convention. Rules of law are exact and inflex- ible whereas conventions are malleable, fluid and flexible. Conventions, on times, perform a job which law cannot. They provide the flesh to cover the naked bones of law and infuse it with blood which makes the Constitution living and workable. Moreover, because of their flexibility chey give enough elbow room to the joints of the body politic to operate. They have sufficient ‘maneuverability and can keep the law of the Constitution adjusted accord: ing to changing needs of the time. Governmental system is not a machine; 15. AV. Dicey An Inoduetion othe Study ofthe Lew of the Constitution [oth Edy ELS & Macs, London 1968 973} Chap 5 16, Silver Jennings, The Law andthe Constition [th Edn, LBS &¢ University of London Press Ld London 197% 7] Chap. t34-36-Seetion 2 7 bad 18, SeeSamaber Singh State of Pani, 974)» SCC 83110 Chap. 1 Constitution, Constitutional Law and Constitutionalism it consists of human insttutions which regularly need, for their survival, fresh air in the form of new ideas, Even a machine needs regular oiling and ‘greasing. LLC Ideas are important elements of a Constitution ‘They may be located and identified in diverse ways in different constitu- tional systems. In the context of the Indian Constitution they can be gath- cred at least in three possible ways. Firstly, there are many provisions of the Constitution, like the Directive Principles of State Policy in Part IV, Fundamental Dutiesin Part IV-A, and objectives mentioned in the Preamble, which are not chemselves udicially enforceable but are the permissible inter- pretive aids for the interpretation of the rest of the Constitution. Secondly, it has been possible to deduce certain themes and principles from the struc- ture of the Constitution," and principles have been deduced by the process of generalisation of the express provisions of the Constitution relating to ‘certain organs or institutions provided in the Constitution." In this way the Supreme Court has deduced the principles of independence of the Judiciary and separation of powers thas been held that the Legislature cant aba cate its powers and functions by delegating its essential legislative powers to the Executive; and it has been further concluded thatthe Constitution provides for a limited amending power" and that federalism is an essential feacure of the Constituticn.** Thirdly, ideas are part of the Constitution as its basic presuppositions or as received ideals. For example, quite early, in State of M.P. ¥. Bharat Singb®, che Supreme Court held that quite apart from express provisions of the Constitution like Articles 19 and 21 it is a fundamental principle of Indian legal system that the Executive has no authority to encroach on the liberty of an individual without the authority of law. Part Il CONSTITUTIONAL LAW LILA General ‘We have assumed so far that rules and principles of a Constitution, at least most of them, are rules of law. But i€ needs to be examined whether the assumption is really corret. This becomes necessary because discord- ant notes have been put forward in the past by writers of eminence and Suthority2* Thus, Austin wrote in his bool The Province of Jurepradence 19. Tdependec of odiiny ad Sparano Powers. 10, Kaleo hdl cra alate poet Sethe Sore Cour decision Del as Aspire AR yg So 2x, Ser Mier Ms i Unf Ind ee) 2 SEC 9. 2h. Se 3 Bomar: Urn aa eop 9S Balk age se A. Jobe Roti snd A Dicey Part Il: Constitutional law 11 Determined, that what we call as constitutional law was a mixture of law and positive morality. This was to a large extent conditioned by his ‘own concept of law which he defined as the command of the sovereign and sovereignty in his view was indivisible and illimicable. Prof. AN. Dicey in his book, An Introduction to the Study of the Law of the Constitution, was also not ready to say that all the rules of the Constitution had the status of law. He drew a sharp distinction between the rules of law of the Constitution and the constitutional conventions. He chose the criterion of the possibility of judicial enforcement as the hallmark of his classification, Since conventions are mete rules of political morality, they did not qualify to be called rules of the law of the Constitution. According to his criterion ‘one could be accused of acting unconstitutionally, though not necessarily illegally. It would be so because conventions were part of the Constitution but not that of the law of the Constitution. It may be noted that Austin’s differentiation was also based to an extent on similar grounds inasmuch a the rules of positive morality had behind them only the sanction of publi ‘opinion and could be disobeyed without the fear of being visited with some legal sanction in the form of an evil to be inflicted by the sovereiga, Positions taken by Austin and Dicey should not be dismissed as mere ‘outcomes of their own individual premises about the meaning and concept of law. But, we need not traverse the entire maze of jurisprudence which relates to the controversy about che correct meaning of the term “law”, For ‘our purposes the criterion of judicial enforcement of the rules is the only relevant criterion. Austin and, to an extent, Dicey might have put the things in a conceptual form; but their views represent matters of substance. Austin ‘was pethaps giving expression to his own view on the question whether it ‘was possible for the courts to adjudicate upon issues which were part of the fundamental law. Let us remember that despite Marbury v. Madison”, decided in 1803 by the US Supreme Court, jurisprudentially it was still widely debated issue.#* And even today we recognise certain areas in com stitutional law field which are considered to be not fit for adjudication. We give them the name of political questions and try to differentiate them from justiciable issues either by saying, as Ronald Dworkin says, that they involve issues of policy and not of principle," or we say that the courts lack 25, Ser, (ndin Repent, Univers] Law Publishing Co, Deli 200s) Lecture VL 26, [oth Ean, ELBS & Macmulla, London 2968 (1973 30-32. 27, aL Blo: 5 US ( Ceanch) 157 (ros), Ths cate exemplifies the proposition that th the Consist enforceable and that aw enacted bys sverie e Inconsistent withthe Constiation, canbe declared vod by competent cour of law 28, See Sylvia Snowis, Judicial Review and the Lat of the Constitution Undian Repeng Universal Law Pblshiog Co, Deli 1995) 29, See, Laurence H. Tribe, American Constttional Law, Vol. std Ed. Foundation Pres New York 20co) Chap, pa. 30. See; Ronald Dworkin, Taking Rights Seriously (Indian Repent Universal Publishing Coy Dah 1996) Chap 4 Also, Ronald Dworkin, A Matter of Princip (Clarendon Press Oxford 1986) Chaps 3,12 Chap. 1 Constitution, Constitutional Law and Constitutionalism legally manageable standards to decide these issues." Simla, Dicey’ dis- that bervean rl fla nd rk of sonvnion dws Oo ateton again to realty that there are quite a few areas of politcal and const tevonal management whch can more stably be handled by developing healehy convention than by framing righ ules of lav. Therefore, the di tinction between law and convention isa real one and alo useful one Unlike law, convention have the advantage of flexibility and mutability The burden ofthe argucent isnot tha the rules of Constitution are not Taw and ha they shoul not be judicially enforceable, Whats sought to be sercssed is that we must recognise the special status of constitutional law fad qualitatively diferent nature ofthe issues that a Constttion seeks to regulate and provide for. We must be ready to admit, of the possibilty that Cersin provisions of a Consiation may be hed to be nonusticiable, and there maybe important seas of insutonal interaction which are beter Ife tobe taken care of by traditions and not by law. Inthe light of the above analysis let us look at the diferent kinds of roles ofthe Indian Consttaion a5 defined inthe preceding part and see as fo Row much of canbe alen co be aw in the hard sense, Judicial precedents and organi avs can easy be alent be ules flaw, lreafter we dacs the potion of rules coneined inthe document known asthe Consetion of india, ules of procedure of Legilative Hust, conventional rles and also the principles or ess. LILB Rules contained in the document known as the Constitution of India ‘The provisions of a Corstitution have extra-legal origin. The law-mak- ing agency, viz. the Legislature itself owes its origin to the Constitution. Ie derives its powers and functions from the Constitution and is subject to the limitations contained in the Constitution. In this way the rules of the Constitution are the starting point. They do not derive their validity from any higher source; instead, other rules derive their validity from them. They merely exist as a matter of fact because officials inthe system, especially the courts, accept them as the ultimate source from which al other institutions and functionaries derive their power and authority.* However, they are rules of law because they have often to be referred to by the courts of law for determining the scope and limits of the power and authority of other institutions, and consequently for deciding the validity of their actions. For instance, the Constizution of India distributes the legislative powers between the Centre and che States. Suppose a law enacted by the Central Parliament or a State Legislature is challenged for being ultra vires, viz. for 13. See, Laurence H. Tribe, American Constitutional Law, Vol. x (3ed Edn., Foundation Press, [New York 2009) Chap. 3, ut. 32, Se HLLiA. Hart, The Concept of Law (sed Ede., Oxord University Pes, Oxford zor2) Chip. 6 Part Il: Constitutional law 13 being outside the legislative authority of the legislative body concerned. The courts wll be called upon to decide the isue by interpreting the provisions ‘of che Constitution relating to disteibution of legislative powers. Thus, by determining the seope of legislative authority ofthe legislative body con- cerned, the court will be said to have enforced the Constitution. Similarly, the Constitution guarantees Fundamental Rights to the people which con: stitute a imitation on all governmental powers, including legislative powers, If aw is challenged for transgression of any ofthe Fundamental Rights, the courts will be called upon to decide the issue and the decision will again be nothing but an enforcement ofthe Constitution. ‘There may be areas where the power fo apply and enforce the Constitution may be left in the hands of a non-judicil authority like the Speaker. For cxampl, it matters alot in terms of procedure tobe followed in enacting a law whether the Bills Money Bill or not. The Constitution gives a defini- tion of Money Bll, but the job of certifying whether a Bills Money Bll or not is given tothe Speaker of Lok Sabha or Vidhan Sabla, as the case may be, However, this should not be taken to have excluded the jurisdiction of the courts completly. Here they may be called upon to discharge the sec- ondary responsibilty of overseeing whether the Speaker has acted within the limits of his authority or not. In State of Punjab v. Sat Pal Dang, the facts were lke this: Article 209 of the Constitution provides that law may be enacted having overriding effect overall rules of business and proce- dare with a view to ensure timely completion of financial busines inthe Legislature inching the passing ofa Bill which provides for appropeation of moneys out of the Consolidated Fund of the State. The Governor of Punjab promulgated an ordinance inthis respect which stipulated thatthe House would not be adjosened before it had voted the grants. Contrary to this the Speaker adjouened the House and lft. Bu, the MLAs remained in the House and the Chaie was taken by the Deputy Speaker. The financial business was transacted and the certification ofthe Money Bll was done by the Deputy Speaker. A dispute arose whether the transaction of legislative business after the Speaker had left the House was valid and whether the Deputy Speaker had the authority to cectify the Money Bill. The courts were ukimately called into the picture for resolving the dispute and the Supreme Court gave an affirmative answer to both the questions. Under the roth Schedule of the Constitution, the Presiding Officer of the House concerned has the power to decide whether « Member of the House has soifered disqualification for having committed an act of defection as pro- vided in the Schedule. The Supreme Court has held that the decision of the Presiding Officer is that ofa tribunal and i ean be appealed against to the Supreme Court under Arccle 136 ofthe Constitution. 1B. AIR 1969 3 905. 44. Kibote Hollobon Zach, 1998 Supp 2) SCC 63,14 Chap. 1 Constitution, Constitutional Law and Constitutionalism ‘There ace still other provisions of the Constitution which appear to be more in the nature of political-moral precepts. This is the position of the provisions contained in Parts IV and IV-A. Part IV contains the Directive Principles of State Policy. Article 37 clearly robs them of their legal efficacy when it says that they shall not be judicially enforceable, though they shall be fundamental in the governance of the country and that they shall be taken into account in the making of laws. The same is the position of the Fundamental Duties of Part IV-A introduced by the Constitution (42nd Amendment) Act. They are general and imprecise and appear to be more in the nature of moral exhortations. They do not prescribe any definite standard of conduct, the breach of which could be visited with penalty. ‘However, both the directives and Fundamental Duties contain constitution- ally recognised ideas and principles which can be taken into account in the interpretation of the Constitution and other laws. LLC. Rules of procedure Under Article 118 the Houses of Parliament and under Article 208 legisla- tive chambers of State Legislatures have been conferred the power to make rules for the regulation of the procedure of their respective Houses. This power is, of course, subject to the other provisions of the Constitution. In ‘M.S.M. Sharma v. Sri Krishna Sinha®, a Constitution Bench of the Supreme Court by majority ruled that the requirement in Article 21 that a person ccould be deprived of his personal liberty only in accordance with law would be fulfilled if the Privileges Committee of the House sentenced someone to imprisonment because the Committee would act in accordance with the rules of procedure framed by the House in chis respect. This apparently appears to be problematic for many reasons. Firstly, these rules are neither rules of the Constitution nor do they have a statutory force. In England such rules are considered to be part of the law and custom of Parliament and are not considered to be part of the general law of the land.* Secondly, the House is competent ro suspend the operation of any of the rules of pro- cedure framed by it.” Thirdly, a court of law is not competent to inquire into the way the proceedings of the House are conducted unless there is an allegation of some illegality which is distinguished from mere irregulacity."* However, the rules of procedure of the House can be said to be law in a very special sense, though not in the technical sense we are examining in this discussion. To say that something is governed by law connotes two ‘things. Firstly, it means thac there is proper authorisation for that thing to 35. AIR 193950 95 36, See Sir for lemmings, The Law and the Constitution [sth Edn, ELBS & University of London Pres Led, London 1971 (9720 85-17 17, See, Ar. 122 and a12 of he Constetion. Alo se, Samaraitya Pal and Ruma Pal (Eds, MCP Jo's Indion Conttational Laur, Wl. 1 th Edn, LexisNevi, Ggaon 0) #27-23 38. bid Part Il: Constitutional law 15 bbe done. Second, it also carries the implication that i s to be carried ot in orderly and proper manner regulated by presfixed rules and that its not dependent on the whims and fancies of any individual. It would appear that in this special sense rules of procedure of the House can be considered to be rules of law. It is submitted that today che Supreme Court would probably not bother to enquire whether the rules of procedure satisfy the definition of faw or not, but would instead like to be satisfied whether the person con: victed was fairly deale with or nor. ‘There is another category of rules of procedure which poses a difficult problem in being characterised whether itis a rule of law or not. Ithas been ‘an established practice that every piece of legislation undergoes three read ings in each House. The cules of procedure dutifully embody this practice. ‘This is the practice which is followed when a Constitution Amendment Bill is also passed. It has become so much embellished in the system that, on the advice of the Attorney-General, i is provided in the rules that the require- ‘ment of special majority for passing a Constitution amendment should be ‘met at all the three stages.” In this way, it can perhaps be said that the prac- tice of three readings ofa Bill is an inherent part of legislative process and the rules of procedure only incorporate thae practice. Therefore, its breach may be considered not merely an irregularity, but an illegality. LILD Conventions of the Constitution Constitational conventions are not law. This has to be accepted unless we obliterate completely the distinction between legal and non-legal rules. ‘As has been seen earlier, even Sir Ivor Jennings, who is a strong critic of Prof. A.V. Dicey on this point, admits of some distinction between the rules of the law of the Constitution and rules of constitutional conven- tions. However, the Indian Constitution presents a special problem in this respect. Quite a few of the conventional rules of the British Constitution have been incorporated as part of the text of the Indian Constitution. The {general presumption would be that once the framers selectively wrote some ‘ofthe conventions into the Constitution, they intended them to be judicially enforceable, unless the nature or context of the rule indicated otherwise. ‘Thus, a member of the Council of Ministers has to go on a writ of quo ‘warranto if he does not become a Member of either House within a period of six months." The Constitution stipulates that an interval of not more than six months should intervene berween the last day of the sitting of a House in the last session and the first day of the sitting of the House in the new session. It is obviows that mandamus can be issued to the Ministry to advise the President or Governor, as the case may be, to comply with the provision. The Constitution provides that the Ministry is collectively 39. See, Re. 155-58 ofthe Roles ofthe House, Lok Sabha, 40, Se, 8.8. Chaudhuri. Stat of Pani, fon) 7 SCC 126.16 Chap. 1 Constitution, Constitutional Law and Constitutionalism accountable to the popular House of the Legislature. The Supreme Court insists that before the Seate Ministry is fired on the ground that it has lost the confidence of the House, it must be shown that the Ministry suffered defeat on the floor of the House.*! And even before Article 74 had been amended so as to provie that the President shall act on the advice of the Council of Ministers, the Supreme Court had taken note of the conven tional rule which was sapposed co underlie Article 74, and in a series of cases it held that the President (or the Governor at the State level) was only a constitutional Head of the State." ILE. Ideas {As has already been pointed out ideas pervade the constitutional system in

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