Basic Structure

Legislature
Executive
Judiciary
Centre- State relations and Federalism
Emergency

BASIC STRUCTURE

When the basic structure was being evolved, one question before the judges was that the
makers of the constitution never had a basic structure, who were they to evolve one? To
which the response was that the makers could never envisage that there would be a situation
that the Constitution could be used to do whatever the powers that be could do. For this they
relied on a German scholar called Conrad. In a lecture at BHU, he was asked what he felt
about the Constitution. He responded by saying that under normal situations, it works fine.
But the robustness of the constitution would be tested in abnormal times. Let's say some
weirdo comes to Delhi, amends article 1 to read India, minus the state of TN, shall be a union
of states. It's not a question of who does it. The question is that since the Constitution
allows amendments, if someone does it, is the Constitution equipped to deal with it. The
seeds of the basic structure were sown here, people began to thinking seriously that there
has to be a core of the Constitution cannot be amended or removed.
The Raj Dharma of ancient Indian tradition and the modern concept of
constitutionalism and rule of law have the same tenet: even the most powerful king or
ruler will have limitations to their functions. It is premised on the fact that there is
supremacy of the Constitution.

"Stanford University entry on Constitutionalism." This does not just mean the text of the
Constitution, it also includes the Constitutional tenets and the spirit.
Jayalalithaa's case where she was barred from contesting elections due to being convicted.
The court evolved the concept of "constitutional morality" and held that appointing her as the
Chief Minister would be violative of this morality. This was a new concept, since the
constitution did not explicitly prohibit her.
So when we talk about limitations on elected people, it is not just written word of the
constitution, it is also unwritten principles.
Re-promulgation of ordinances by the Governor (D. C. Wadhwa v. State of Bihar). Even
though there is no explicit bar on this, it bypasses legislative scrutiny. Hence, by an unwritten
principle, it is barred by the Constitution.

"Fraud on the Constitution" doctrine in the context of the Aadhar judgement: the speaker's
qualification of the Aadhar bill as a money bill is what led to this invocation (DYC's
dissenting opinion in the Aadhar case made this invocation). Jaitley had the Aadhar bill
characterised as a money bill because the ruling alliance lacked a majority in the Rajya Sabha
because money bills only need the consent of the Lok Sabha. This could be done because the
definitions of ordinary bills and money bills in the Constitution is deficient.
This was done to bypass the Rajya Sabha due to contemporary political realities. All this
cannot be understood by a mere reading of the Constitution. You have to understand the
contemporary times, the realities, mindsets of the powers that be to be able to understand
unwritten constitutional principles like "fraud on the Constitution".

The clash b/w the State government of WB, the state election commission and the Calcutta
HC during the recent WB Panchayat Election vis-a-vis the deployment of Central Forces for
the peaceful conduct of elections. Such clashes between constitutional bodies, even if the
judiciary's decree is eventually followed, leads to wasting time; it kills time.
Recently, the courts have started intervening a lot in political matter. This was not the
practice in the 50s and the 60s. It used to follow a practice of non-intervention in political
matters, a hands-off approach on policy matters. The judiciary, in the contemporary times,
also tends to overdo it. Citing judgements from Zimbabwe and what not, that is not relevant
to India, makes no sense. It has exercised its powers under Article 142 to evolve the concept
of PILs and stuff, it also tends to overdo things. Another example would be the SC appointing
Sunil Gavaskar as the interim BCCI President (a body that, by their own admission, is a
private body), under the guise of Article 142, is also overdoing it. The SC later appointed a 3
member body comprising Vinod Rai (a former CAG), Ramachandra Guha and a former
cricketer to run the BCCI.

BASIC STRUCTURE AND AMENDEMENT

Constitutional Amendments: Article 368. The title then read "procedure to amend the
Constitution." (as it existed on 26th January 1950) The question of "power to amend the
Constitution" did not exist, neither did clause 1 of the article. Clause 2 of today was clause 1
then. There is a proviso to the article which says that in those matters, in addition to 2/3rds
present and voting in either house of parliament, the amendment also has to be ratified by one
half of state legislatures (number of state assemblies, not relative strength of the state
legislatures). This is because the articles enlisted here concern the federal structure of the
country (entries of the 7th schedule, among others).
Clause 3, 4 and 5 of article 368 did not exist either. The constitution then only had
article 368(2) of today.

Kameshwar Singh v. State of Bihar, it was recognised that since property was a fundamental
right, this acquisition of property was violative of fundamental rights and could not be done.

A considerable chunk of Nehru's agenda was devoted to land reforms. Nehru could not allow
the court to get away with this. As a result, within a year of the constitution coming into
force, when the general election wasn't conducted, with constituent assembly members
serving in the provincial parliament, the provisional parliament came up with the first
amendment in 1951 as a response to the Patna HC judgement. It introduced 2 articles and
one schedule.
 Article 31A which said that laws aimed at regulating any form of estates shall
be beyond judicial review powers of the courts.
 Article 31B to be read with the 9th schedule which said that if any law is
inserted into the 9th schedule, it cannot be questioned on the grounds of
fundamental rights violations specially Art. 14, 19 and 21.
The implication of this is that any law can be placed beyond judicial scrutiny. The schedule
never said that this law will be used only for land reform laws, even though Nehru promised
so in Parliament. He used it for other purposes. His own daughter used it to amend election
laws when her own election from Rae Bareli was under challenge.
In the judicial circles, a more fundamentally theoretical question emerges. "Does the
Parliament have an unlimited power of making constitutional amendments?" A sub-
question could be "can the parliament be allowed to amend fundamental rights?" This is also
because Article 13 says that fundamental rights cannot be abridged. Any law in contravention
of FRs are to be struck down. The question, therefore, also is that is a constitutional
amendment within the meaning of article 13. If it is, you cannot pass amendments that
affect or amend fundamental rights. And if that indeed is the case, Parliament does not have
unlimited right to amend the constitution, because any amendment that violates FRs, it can be
struck down under article 13. (this replaceability of constitutional amendments and laws is for
argumentative purposes, it is not the position of law). The constitution makers, in the
constituent assembly, never felt the need to add a provision saying that FRs cannot be
abridged. A suggestion was made to that effect, but it was dropped eventually.

Shankari Prasad Singh Deo v. Union of India : It challenged the amendments to Article 31.
The argument given was that constitutional amendments are laws within article 13.
Two questions:
A. Is an Amendment a Law?
B. Can FRs be amended?
Patanjali Shastri was one of the judges and this was a time when the SC was heavily textual.
The bench unanimously did not agree with this argument. The bench gave a very
interesting distinction b/w laws and amendments. A. They said any law is a result of the
exercise of the legislative power of the Parliament. But the process of amending the
Constitution is an exercise of a different power, which he called the "constituent
power". When an amendment is being made, parliamentarians cease to be parliamentarians.
They step into the shoes of the constituent assembly. Hence, an amendment cannot be
equated with a law. With this conclusion, all the above math falls. B. This is why the bench
concluded that Parliament has an unlimited power to amend the Constitution. To put
this into perspective, C. welfare was at the top of the agenda. Hence, this amendment,
perceived to be for equality and welfare. Also, the constituent assembly was itself functioning
as the provisional parliament. D. If the makers themselves are making this amendment, it
is as good as writing the Constitution.
(Vaman Rao)
(Doctrine of contemporaneous exposition)
Since the Constitution makers themselves made the first amendment as the provisional
parliament, there is a chance that this is why the Court refused to intervene. Had it been some
other Parliament, chances are that the SC would not have been so accommodative. Since the
Parliament represented the popular will of the PEOPLE, the judiciary of the 50s felt that these
amendments and the reasoning behind them fell on the legislature and this is where the
judiciary needed to take a back seat.

Eminent domain is a concept in American constitutional jurisprudence. This means that the
state has to acquire private land from time to time for public welfare projects. But the state
will compensate the owner with an amount commensurate to the market value of the land.
The consent of the owner is not required for this. This is, of course, done through a law.
Eminent domain, however, involves compensation.
But instead of using this ready model, Nehru refused to compensate the zamindars for the
land acquired from them. If they were compensated for this land, there would be no sense to
social justice, and economically damaging consequences would ensue.
Three judgements in 1954: State of West Bengal v. Bella Banerjee, State of West Bengal v.
Subodh Gopal Ghose, Dwarkadas Srinivas v. Solapur Spinning Company: The SC, in all
these 3 cases, held that since Art 31 made property a fundamental right, compensation had to
be paid if the property was acquired.

This was economically burdensome. Nehru's land reform ran into another roadblock. And
every time his policy hit a roadblock; he amended the Constitution.

4th Constitutional amendment (1955): Extending the scope of Article 31A. All laws that
had anything to do with social welfare (as decided by the government) will be beyond
judicial review. This was in addition to the 9th Schedule. This amendment also amended Art
31(2) and made a distinction between A. compulsory acquisition of property and B.
deprivation of property by operation of regulatory rules.
The former: my property holding is below the ceiling but it is right next to a national
highway and the state needs to widen the highway. So even if I have not breached the ceiling,
the State will have no option but to acquire my property. The important point here is that I am
not a zamindar. But if the state wants, it can acquire my land. I will be compensated. The
amount of compensation given is non-justiciable. Quantum of compensation offered cannot
be challenged in a court of law. Typical eminent domain example.
The latter: this is about the land ceiling. The state wants to regulate my land holding. So it
will, by law, prevent me from holding more than a certain amount of land. Both are
deprivations but the subject matter of acquisition is different. In the latter, the state can just
take away the land in the name of distributive justice and do nothing about it. And here, the
person is a zamindar.

2 things were happening at this time. Art 31(2) was being expanded and more and more
things were being added to the 9th Schedule.

17th amendment, 1964 put a few more things into the 9th Schedule.
Sajjan Singh v. State of Rajasthan: Rajasthan Act was brought in through the 4th
amendment, because of which a person called Sajjan Singh lost his land. The 4th and 17th
amendment were challenged. Since it also challenged the 9th Schedule, the 1st amendment
was also on challenged here since that introduced the 9th Schedule. This was the post-Nehru
government's first test. This case, a 5-judge bench, had a unanimous verdict by 3 judges led
by Gajendra Gadkar. It was a mirror image of the judgement in Shankari Prasad. It was
held that the expression “amendment of the Constitution” plainly and unambiguously
refers to all the provisions of the Constitution.
What makes this judgement makes it landmark are 2 separate concurring opinions by
Hidayatullah J. and Mudholkar J.
Hidayatullah J. said that he had a problem with the Parliament having an unlimited power to
amend the Constitution, because if FRs could be taken away just like that, what is the point of
having them as FRs. If this is allowed, even the right to life can be taken away. If you can
take away basic rights just because you have a parliamentary majority, we have a problem
with it, but we do not have a solution. There is a logical problem with Shankari Prasad.
Hidayatullah J. said that he had a problem with it, he flagged a concern but he acknowledged
his limitation to find a solution. He upheld the amendments not because he liked them, but
because he did not have a choice.
Textually speaking, 368 does not explicitly grants the power to amend every single provision.
It would be odd for Constituent Assembly to devote such energies and attention to FRs if they
could be easily amended by a special majority.
Mudholkar J. said that you cannot use the amending powers to alter the "Basic Features"
of the Constitution? This is the first time that something like "basic feature" has been used in
India's constitutional jurisprudence. (Mudholkar J. came up with the 'Basic features' himself).
He said that the Constituent assembly members wanted to preserve certain basic features of
the constitution, and making it subject to amendment would tantamount to re-writing the
entire constitution.
The point is that these 2 asked questions that Patanjalishastri J. did not ask in Shankari
Prasad. These questions had never been asked before. So even if they concurred, their
concurring opinions is what makes this judgement landmark. A little more adventurous judge
could perhaps have had an answer. They did deviate from the textualist approach and ask
questions but they weren't bordering on adventurism.
Lot of western scholars have always said that there are certain inalienables, which cannot be
taken away. This was Mudholkar J.'s opinion. What constituted basic features is something
he was unaware of at the time, but he held that there were certain basic features, which
parliament could not be allowed to take away.
The basic feature doctrine can be weaponised, but who could weaponize it? Maybe then,
Mudholkar J. did not know what he was on to, but he was definitely leaving open questions
for posterity to solve.

Indira Gandhi’s PM-ship: India suddenly saw a political vacuum due to Shastri's death in
Tashkent. There were many contenders to the PM's post. Mrs. Gandhi was decided upon as
the candidate as a compromise among various factions of the INC. This was largely because
they felt that they could control a woman candidate. Also, the fact that she did not have
administrative experience. She was testing the waters for the first few years and there was
relative calm. Around this time when there was calm in the Parliament, the SC was also
undergoing a churn. Subba Rao J. was the Chief Justice. He was known for his monumental
dissents. If someone needed to bring about a judicial change, this time, with a comparatively
calm legislature and a revolutionary as the chief justice, now was the time. This was another
milestone.
Therefore, despite the fact that Sajjan Singh was unanimously decided, people like MK
Nambiar filed a petition since they felt with Subba Rao CJ., things could change.

IC Golakh Nath v. State of Punjab: Golaknath was a Bengali Christian. The 17th
amendment along with the 1st and 4th, was challenged.
Art 145 says that any substantial question of law is to be heard by at least 5 judges. At that
time, the SC had a total of 12 judges. Subba Rao CJ set up an 11-judge bench to set a
precedent that could not be overturned. He also set up daily hearings because he wanted to
end this matter before his retirement, which was to happen soon. 1967, around the time when
the judgement was delivered, there was a presidential election. One day after Golakh Nath
was delivered and Subba Rao retired, his name was announced as the opposition's
presidential election against Dr. Zakir Hussain, who was the Congress candidate.
Scholars have written that towards their retirement, judges start becoming pro-government to
secure post-retirement benefits. There is a lot of literature to have a cooling-off period to
prevent this.
This 11-judge bench also had Hidayatullah J. Golakh Nath was a 6:5 majority. The main
opinion that history remembers is Subba Rao CJ.
On Patanjali Shastri J.'s differentiation of constituent powers from legislative powers and
unlimited power of amendment of the constitution, Subba Rao asked the government where
did they derive the "power" to amend the constitution, because Art 368 did not have the word
"power" at the time. The bare text did not speak of any constitutent power. He held that
there is nothing called constituent power. All power exercised by the power are
legislative powers. Amendments are a legislative process. The government then asked,
where is the legislative "power to amend the constitution?"
Subba Rao held that the legislative power to amend the constitution comes from articles 245,
246, 248 and entry 97 of Union List.
- 245 las down the territorial limit of the Parliament.
- 246 talks about the three lists of Schedule 7.
- 248 and entry 97 say that if you do not find a subject matter in any of the three lists
then by default, the authority to enact laws on that subject is with the Parliament. This
entry is a residuary entry. Since no entry mentions constitutional amendments
explicitly. Hence, as per Subba Rao, the residuary entry would include
constitutional amendments.
These provisions were the source of the power to make amendments to the Constitution.
Hence, it is a legislative power as per Subba Rao CJ. The Parliament has the power to make
"laws" as per these provisions. Hence, there is nothing called constituent powers, only
legislative power. Since there is no real difference between legislative and constituent
powers, therefore FRs are protected from any legislative actions under Article 13, which
included amendments. Hence, constitutional amendments are laws, they are bound by
Article 13, they cannot abridge fundamental rights, Parliament does not have unlimited
powers to amend the Constitution. With this, he overrode 15 years of precedent. With this, he
singlehandedly answered Hidayatullah J.'s question. He gave an interpretation, though there
were fallacies to his reasoning, using the very text of the Constitution (he never went beyond
the text) to protect the very text of the Constitution.
 One fallacy with Subba Rao's opinion is that roughly 300 entries in the 7th Schedule,
and a residuary entry with the word "etc." empowers the Parliament to amend the
Constitution. Something as important as constitutional amendment deriving their
power from a residuary entry is problematic.
 The government said that they have been taking land for 17 years and built public
projects on them. If the ratio of the judgement makes it all void ab initio, all those
projects will have to be torn down and restore the land. Here, Subba Rao said that
there will be a doctrine of prospective overruling, meaning the judgement will not
have retrospective application. This meant that Golakh Nath did not get his land back.

Political turmoil post-Golak Nath:

 In 1969, Syndicate was causing a lot of difficulties for Mrs Gandhi. There was a lot of
diction between Congress the party and Congress in government. There were internal
ideological differences. Nationalisation of banks and abolition of privy purses
were big issues of contention. At the time, banks were largely functioning as lenders
to industrialists. She wanted them to do something for welfare. She felt that this could
be addressed through nationalisation (SBI was the only national bank then). Privy
purse was the money the erstwhile princely states were receiving from the exchequer.
She faced resistance for both these moves. Her FM Morarji Desai felt that
nationalisation would make banks inefficient. One of the critiques of Desai was that
his politics was too Bombay-centric.
 The President Dr. Zakir Hussain passed away. He was the first President to pass away
in office. VV Giri as the VP became the acting President. Elections had to be
conducted. The CWC, AICC and the parliamentary party announced Neelam
Sanjeeva Reddy as the candidate. She disagreed and said that her candidate would be
VV Giri. She declared a candidate against the Congress' official candidate. The Jana
Sangh put up CD Deshmukh. It was a 3-way contest.
 DN Ghose, among other people, was asked to draft a Bank Nationalisation
Ordinance within 48 hours to be promulgated by VV Giri before he demits office as
acting President. The ordinance was promulgated, next day Giri resigned, next day
filed his nomination as Mrs. Gandhi's candidate, next day, Parliament came in
session. She did not issue a whip but rather said that the congressmen should vote as
per "their conscience." VV Giri defeated the official candidate of the Congress
Neelam Sanjeeva Reddy. It was here that the Congress felt enough is enough. 12th
November 1969, Indira Gandhi was expelled from the Congress. She left and formed
the Congress (R) requisitionists, and the Syndicates were now Congress (O)
 organisationalists. The Congress split but she did not mind, because by then, bank
nationalisation had been a success. Net volume of deposits had gone up by 800% and
net volume of loans had gone up by 11000%.
 She next set her sights on abolishing privy purses. Since this was a constitutional
matter, she needed 2/3rds in both Houses. Lok Sabha she managed but in RS, she was
just above the mark. Everyone in her support would have to appear and vote in
favour. Granville Austin has documents that before the first bell of the vote, one
person sneaked to the washroom. The bill fell by one vote. Later she asked VV Giri to
issue a presidential proclamation derecognising princely states. This way, she did not
scrap the privy purse, she scrapped access to it. But, President Giri was, at that
moment, in Hyderabad. She was in a hurry and did not want to leave anything to
chance. She sent a plane to Hyderabad with a copy of the Presidential Proclamation.
She then had to leave for the NAM meeting. While the jet was still mid-air, she
walked into AIR and announced derecognition of the princely states, before the
President signed it. Eventually, the bank nationalisation ordinance was also ratified by
Parliament.
 Both of these actions were challenged before the SC. Bank nationalisation was
challenged by RC Cooper, a banker with central bank of India. His question was
on what basis were these banks taken over. And the second issue was right of property
and compensation. The latter was revived after the amendments were struck down in
Golakh Nath. 10:1 majority struck down the Bank Nationalisation Act in RC Cooper
v. Union of India in violation of Articles 14, 19(1)(f), 31. (shares were taken away
without compensation)
 Madhavrao Scindia challenged the abolition of privy purse. Violation of right to
privy purse. Both cases were heard by 11-judge bench (the SC has a strength of 12).
In Madhavrao Jivaji Rao Scindia v. Union of India, a 9:2 majority struck down the
Presidential Proclamation that derecognised princely states.
She now realised that the Syndicate was not the enemy and the opposition was at it is
non-existent. She now made the SC her primary target. The first thing that came to
her notice was that one of the dissenters in Madhavrao and Cooper was AN Ray J.
She had to do something about the SC. And for that, she needed constitutional
amendments, and the privy purse issue made her realise that this was tricky. She
needed a lot more than 2/3rds in both Houses. In 1971, she went to President Giri and
asked him to dissolve the Lok Sabha and announce fresh elections. In that election,
she went from constituency to constituency, and her campaign was "Garibi Hatao."
she said in her speeches, she targeted the SC and said that those unelected people
were the only roadblocks. She said that if she was elected with a strong mandate, she
would initiate structural constitutional changes that would show the SC its place. She
was on a direct collision course with the SC. She accused the SC of siding with the
rich and said that if elected, she would eradicate poverty and make structural
constitutional changes. Constitutional amendments became the central issue of the
election. She swept the election, and also swept state assembly elections held
simultaneously. In 1971, after storming to power, and around the time the Bangladesh
 war was on, her popularity was at its peak. She had the numbers in the Lok Sabha and
with assembly election victories, she also had substantial numbers in the RS. With
these, she made the 24th, 25th, 26th and 29th amendments to the Constitution.

24th amendment (1971):

1. Changed the title of Art 368 to what it is today "power of parliament to amend the
constitution". This is because Subba Rao's primary argument in Golakh Nath was that
the power did not come from art 368, it only lays down the provision.
2. Introduced art 368(1): "Notwithstanding anything in this Constitution", meaning the
power came from here and here only. "addition, variation or repeal" meaning even FRs
can be removed since anything can be done. Subba Rao in Golakh Nath stands undone,
Hidayatullah and Mudholkar in Sajjan Singh go for a toss, we are back to 'constituent
powers' as enunciated by Patanjali Shastri in Shankari Prasad with unlimited powers
to amend. This amendment basically said that amendments are not laws as they are being
derived from art 368. Since they are derived from a special article, they are not laws,
they can amend any part of the constitution including FRs, hence parliament has an
unlimited power to amend the constitution. Golakh Nath stands blown to smithereens.
368(1) was introduced with the singular purpose of overruling it.
3. Introduced today's art 368(3): nothing in art 13 will apply to amendments made
through this article. Meaning amendments are not laws.
4. introduced art 13(4): reiteration of 368(3), said that this article would not apply to
amendments under art 368. 13 was delinked completely from 368. Constitutional
amendments were delinked from laws. Any limitation imposed by 13 were rendered non-
applicable.

25th amendment:
1. Made changes to art 31(2): replaces 'compensation' with 'amount'. Compensation
signifies a legitimate expectation of a sense of proportionality and balance, even though
the amount is non-justiciable. It is about mitigation of some kind of loss. So the
expectation is that the amount of compensation will be sufficient to fill up the void.
Replacing that with 'amount' means the constitutional requirement is satisfied the
moment any amount is paid. The legitimate expectation of balance and proportionality
need no longer be satisfied. For a court that was slowly coming out of textualism, to say
that even 'amount' would have to be proportional, when the legislative intent is clearly to
negate the element of proportionality, is highly unlikely. It could even imply a token
amount. This essentially countered the argument given in RC Cooper.
2. Introduced art 31C: it said that any law that is passed in pursuance of 39(b) and (c)
cannot be called into question for violation of articles 14 (equality), 19 (freedom)
and 31 (property). The decision whether the law passed is in fact in pursuance of
article 39(b) and (c) will be taken by Parliament. These 2 articles are DPSPs. These
principles enunciated the socialist principles. This amendment placed some DPSPs above
FRs. Even more dangerous, however, was that whether a law is passed in pursuance of
socialism will only be subject to Parliament's judgement. This means that any law can be
passed and parliament can claim it is in pursuance of socialism and protect it from
 judicial scrutiny. It is now that she was starting to take things overboard, slowly shutting
the door for the judiciary. But at the end of the day, the judiciary is a custodian of the
Constitution.
With article 31C, she is trying to immunise legislations from judicial scrutiny. With the 24th
amendments, constitutional amendments themselves have already been immunised. 9th
Schedule is Plan A, Art 31C is Plan B.
26th amendment (repealed Art. 291): abolished privy purses to prevent a future
government or president from changing the definition of royalties, put an end to the issue of
privy purses once and for all.
29th amendment: put a few laws into the 9th schedule, two of which were the Kerala land
reform laws due to which a person called Kesavananda Bharati lost his land.

A basic structure review, at least theoretically, is done only in so far as constitutional

amendments are concerned. There have been practical aberrations. For legislations, all sorts
of judicial review mechanisms are available.

Kesavananda Bharati v. State of Kerala

Kesavananda Bharati of the Ennir Mutt lost his land due to the Kerala land reforms act. When
he found out that he had lost his land, he initially did not want to challenge it since he did not
have materialistic interests. But, people from all across the country requested him to
challenge because that would lead to monumental constitutional change. He never met
Palkhivala in his life. He just signed the vakalatnama. Palkhivala's juniors were Nariman and
Sorabjee. Seervai represented the government.

Till this case, the maximum bench strength was 11. Since Golakh Nath was under
reconsideration, there was a need to have a larger bench. Indira Gandhi was advised to use
the constitutional provision of ad hoc judges to appoint judges. So at least out of 13, 2 judges
would be sympathetic to the government. From Allahabad HC came Dwivedi J., and from the
Calcutta HC came Mukherjee J. Mukherjee J. eventually sided with the majority in
Kesavananda.

This was a politically crucial case because the entire Indira Gandhi policy till that time was
challenged. If she managed to scrape through this, she would be invincible. The judiciary also
knew this, they felt that this was perhaps their last opportunity. On 24th April 1973, Sikri CJ
was about to retire. Hence, the case was heard on a day to day basis. Towards the end, judges
started missing the hearings. Sikri asked the judges to be present accusing them of killing
time so that the bench is reconstituted after his retirement. Beg J. got himself admitted into
the hospital. Sikri continued the hearings regardless. But Beg J eventually got discharged and
re-joined the hearings.

Palkhivala asked what exactly was to be done after the verdict (since it was a long
judgement). Sikri CJ agreed and the court decided to bring out a summary of the judgement.
This was the first time that a summary of the findings was being issued by the SC. By the
time the summary was ready, 4 judges either refused to sign or became incommunicado,
 including Beg J. Hence, till today, it is signed by only 9 judges, bringing into doubt the
credibility of the summary.

Ideologically, you can divide the bench in 6:6:1. Khanna is the outlier. He was with one
block on one issue, and the other on other issues. Identifying those judges is crucial.
Sikri, Shelat, Grover, Hegde, Mukherjee, Reddy (1st group)
Ray, Palekar, chandrachud, beg, Dwivedi, Matthew (2nd group)
Khanna (something here, something there)
Independent of the 24th amendment, all 13 are trying to prove that Golakh Nath was bad law.

Logical fallacies of Golakh Nath as pointed by all 13: (HR Khanna)

1. Subba Rao had said that the amending power was legislative power coming from 245,
246, 248 and entry 97. 245 gives territorial competence of the Parliament and state
assemblies. This article starts with 'subject to the provisions of this Constitution'.
How do you make changes to the Constitution while being subject to it? How can
you be authorized to change when you are subject to the original constitution. This
counters to the logic that the power to amend comes from here. 368(1), OTOH,
starts with 'notwithstanding', which makes a lot more sense. Hence, the territorial
competence to amend cannot come from 245. Power comes from 368, irrespective of the
24th amendment.
2. This has 2 parts.
a. Regarding 246, 248 and entry 97. 97 is a residuary entry in the Union List. The
7th schedule has roughly 200 entries in all 3 lists. Is it seriously believable that
something as crucial as amendment comes from a residuary clause? If that is
the case, you are giving out the proposition that the constitution makers did not
mention it in any of the entries. Residuary powers are meant to conceive the
inconceivable. Tech was not as prominent then, so it can be used to make a law on
tech. But something as crucial as amendment cannot come from a residuary clause.
(Sengupta's thesis on misuse of article 142).
b. Entry 97 of the Union List: in the matters under the union list, Parliament has
exclusive power to make laws. If that is the case, how is it that the procedure
under 368 has a proviso which says that ratification by half the state
assemblies is necessary? Power to amend is a residuary power in entry 97 of the
union list, which gives exclusive powers to the Parliament. This is logically flawed
because then what about those category of amendments that require state
ratification. Thus it is logically flawed to interpret amendments to be a part of the
Union list when the State assemblies are also important players in the same.
3. Irrespective of today's 368(1) and the 24th amendment, Art. 368 of then ends with 'the
constitution shall stand amended'. The bench said that this is where the power to
amend the constitution stems from. You don’t have explicitly mention it. You follow a
procedure and the constitution shall stand amended, means this is where that power
comes from. Therefore, the old 368, irrespective of the amendment, both power and
procedure come from 368.
4. The ultimate finding of Golakh Nath was that FRs cannot be changed via amendments.
The justification for this was that the founding fathers never intended for FRs to be
amended. If that is the case, then let's look at the founding fathers. When 368 was being
discussed in the constituent assembly (which was then draft article 304), there was a
proposal to include a draft article 304A which said that FRs cannot be amended. This
was discussed and dropped eventually. This gives us a sense of what the founding fathers
wanted. Moreover, the founding fathers themselves made the first amendment that
amended fundamental rights when the constituent assembly was operating as the
provincial parliament in 1951 before the 1st general election.
 Doctrine of contemporaneous exposition: legal constructions made shortly after
enactment reveals the intentions of the founding fathers and holds great weight.

The first group was not completely agreeable with Golakh Nath but they kind of agreed with
Subba Rao. This group, partly borrowing from Mudholkar and Hidayatullah, they are
saying that FRs can be amended subject to Basic Features. And these mostly included
FRs. Sikri gave an exhaustive list of basic features that can never be touched. Shelat and
Grover gave an illustrative list, adding a few things to Sikri's list. Hegde and Mukherjee
called them fundamental features. For them, the list was same as Shelat and Grover. Jagan
Mohan Reddy said that adding to the already existing list, 3 organs of state, the sovereign
democratic, republic (this was before the 42nd amendment) are basic features.
But they said that this list is from the Preamble. So the Preamble is key to finding the
fundamental features. Till Kesavananda, the understanding was that the Preamble is not a
part of the Constitution. This is because when a law is discussed in the Parliament, it begins
with section 1. The preamble of a law is never debated or discussed when debating it. Before
sending it to the president for signing, after it has been passed, a preamble is added. Hence, it
is not considered to be a part of the Constitution. Similarly, in Berubari, it was held that the
Preamble was not part of the Constitution. However, Hegde and Mukherjee said that the
Preamble to the Constitution was in fact discussed by the Constituent Assembly. It was the
last thing to be discussed and passed. Hence, it is a part of the Constitution, such an important
part that a list of the basic features comes from the Preamble. Hence, Berubari was, to this
extent, overruled.

MAJORITY: SC recognised the difference between constitutional law and ordinary

legislation. It also conceded that FRs can be amended, but they cant take away the basic
structure of the constitution. They have broadened it beyond fundamental rights, addressing
not just Hidayatullah, but also Mudholkar. Raju Ramachandran writes that it is not as
sound of a judgement as it is made out to be. It is just a product of its times. Khanna was the
only judge who coined 'Basic structure.' So technically it is a minority coinage. But till today,
Kesavananda is known as the basic structure judgement.

The other group agreed with Patanjali Shastri that there are no limitations to amend the
Constitution.
KHANNA was the game changer here because he starts with saying that he has a problem
with the idea that FRs cannot be amended. Insurmountable nature of FRs was a problem
for him. There is the etymological argument because the founding fathers themselves had
amended the Constitution in 1951. A philosophical argument was that your forefathers'
wisdom cannot bind you forever. If the Parliament, in its wisdom feels that an
amendment to FRs is necessary, it should be able to.
But this is where he takes a turn away from Ray's group. He says FRs can be amended
but it is not unlimited. What is stopping it? He said that there is something called the
"Basic Structure" of the Constitution, to which the amendment will be subject to. But
unlike Reddy's group, he did not tell the court what the Basic Structure is. Because if he
did, the Parliament will find a way to find ways around it. This is where his genius comes
in. Parliament will always be uncertain about it. Every time there is an amendment, the
judiciary will have the power to decide an amendment on the ground of Basic Structure.

The problem with this is that it places too much power on the judiciary. Every time there
is an amendment on which considerable energy has been expended, the court can just strike it
down because it feels that it violates the basic structure and it is then that they will decide that
what part of the basic structure is violated because the very structure was never explained. It
is always a post facto analysis. Jaitely, when the NJAC amendment was struck down,
refereed to this as the 'tyranny of the unelected'. Khanna created a structure that went beyond
the basic features. Features may come and go, but the very structure will always remain.
- Khanna starts by pointing flaws in Golaknath. First: Article 245 starts with 'subject to the
provisions of this Constitution'. How do you make changes to the Constitution while
being subject to it
- Second, Power to amend is a residuary power in entry 97 of the union list, which gives
exclusive powers to the Parliament. This is logically flawed because then what about those
category of amendments that require state ratification. Thus, it is logically flawed to
interpret amendments to be a part of the Union list when the State assemblies are also
important players in the same.
- Third, the Constitution makers have made a clear distinction between the constitution and
law. Any attempt to equate amendments to law is myopic and disregards a clearly
outlined distinction and undermines the superior and sacrosanct status of the
constitution.
- Thus constituent powers and legislative powers are distinct and different. However, this
power to amend is not unlimited as it given unapologetic immunity to the govt.
- Khanna did not say that FRs are unamendable because that will be a great disservice.
Hence FRs should be kept amendable to ensure a progressive situation.
- Doctrine of contemporaneous exposition: legal constructions made shortly after
enactment reveals the intentions of the founding fathers and holds great weight.
The ultimate finding of Golakh Nath was that FRs cannot be changed via amendments.
The justification for this was that the founding fathers never intended for FRs to be
amended. If that is the case, then let's look at the founding fathers. When 368 was being
discussed in the constituent assembly (which was then draft article 304), there was a
proposal to include a draft article 304A which said that FRs cannot be amended. This was
 discussed and dropped eventually. This gives us a sense of what the founding fathers
wanted. Moreover, the founding fathers themselves made the first amendment that
amended fundamental rights when the constituent assembly was operating as the
provincial parliament in 1951 before the 1st general election.

But all things said and done, this judgement was a product of its times. Khanna was trying to
safeguard the judiciary and the Constitution which was under constant attack from the
government.
But where is the idea of the Basic Structure being derived from? It is derived from a
constitutional idea. The idea is that amendment under 368 does not tantamount to mutilation.

The basic structure acts like an implied limitation. It is not an explicit limitation. Unlike
the German Constitution, which has the basic law, which says that certain things cannot
be amended.

24th April 1973 Kesavananda is decided. 24th, 29th amendments are upheld. 25th was
mostly upheld but the part where the amendment said that only Parliament shall decide
whether an act is in pursuance of an objective was struck down.

Shelat, Hegde, Grover were superseded by Ray to become CJI. The three of them resigned.
So even though the basic structure existed, but her amendments were mostly upheld.

The EWS of today is not new. PV Narasimha Rao had done something very similar in 1992.
he added 10 percent to the Mandal Commission recommendations just for the EWS. This
reservation, in 1992, it was made by virtue of an executive order. The court struck it down for
being violative of the FRs. This could be done because an executive order is "law" under
article 13. In the 21st century, it was accepted and not struck down because it was done by
means of a constitutional amendment. An amendment cannot be scrutinised on the basis
of FRs, only basic structure. And the Basic structure does not have a definition. It is for
the courts to decide. The majority said that the amendment is consistent with the Basic
Structure. The point is that the EWS amended was subjected to a basic structure
scrutiny, not a fundamental right scrutiny.

There are certain tests (width and identity test) but those are more vague than the Basic
Structure Doctrine itself. The basic structure is whatever the court says it is. Its
vagueness is the court's biggest strength. The Basic Structure scrutiny is always a post
facto analysis.

In the NJAC judgement, Chelameshwar J, in his dissent, made a distinction between

basic structure and basic features. This is exactly what Khanna had done. Chelameshwar J
drew an analogy. Let's say that democracy is part of the Basic Structure. Elections and
universal adult franchise are a means to get there. Hence, these are basic features. Let's
say age is reduced from 18 to 16 or increased to 21. This is changing the features,
without affecting the Structure. Changing the way judges are appointed is changing the
basic features. The independence of the judiciary (which is part of the basic structure)
will still remain. The other judges of the NJAC bench listed out the judiciary's independence
as a basic feature and struck down the amendment.

Pran Chopra (Supreme Court v. the Constitution).

Basic Structure today is very different from what it meant to Khanna CJ. He was
categorical that a basic structure scrutiny should only be done for amendments, but
there have been so many instances when ordinary laws have been scrutinised on the
grounds of basic structure. Eg; shankarappa judgement.

Indira Gandhi v. Raj Narain:

Raj Narain filed an election petition in the Allahabad HC claiming she had abused her
position. 1. She used state machinery in her campaign- cars, helicopters etc., 2. Appointed
IAS officers as her election agent 3. Drastically exceeded the ceiling.

On 12 June 1975, Jagmohan Lal Sinha J of the Allahabad HC struck down her election from
Rae Bareli. She was accused of using the government machinery to win the election. Yashpal
Kapoor, a government officer, was appointed as a campaign in-charge. Raj Narain said that
using the government machinery for an election was an electoral malpractice. The Allahabad
HC held that this was true and struck down her election, held it null and void and hence, she
could not be the PM either.

24th June 1975: The SC was on vacation. Krishna Iyer J was sitting on the vacation bench.
Despite having a CJI who would support her, she had a judge not in favour of her sitting on
the bench, due to bad luck. Krishna Iyer said that as a vacation judge, he couldn’t hear it
since this was a matter for a constitution bench. He issued an interim order saying that she
would be able to participate in parliamentary proceedings, be the PM but she cannot vote in
the Parliament, and that she would not be the MP from Rae Bareli anymore. She shall not
speak, even if she did, it is not to be taken on record. This was a massive blow because she
had a solid mandate and she had a big ego. People started calling her the illegitimate Prime
Minister. But she wasn’t someone who would take an act of grace like this.

A lot of things were happening in India. In January 1975, JP Narayan gave the call for
Sampoorna Kranti. The opposition was suddenly became very strong. There was a massive
opposition rally on 25th June 1975 at Ramlila Maidan attended by all opposition parties
and reportedly 15 lakh people. A gap of one day between the judgement and this. Tensions
were running very high at the time. She did something very weird to make sure people don't
attend the rally. Doordarshan was functioning around Delhi only. She asked DD to play
Bobby, which was a superhit movie. This was the first time Bobby was played on DD.

Even though she had numbers in the Parliament, she could tell that there was serious
dissatisfaction brewing. That night, she had President Fakharuddin Ali Ahmed declare
Emergency at midnight.
Midnight of 25th June 1975, Mrs. Gandhi went to the Rashtrapati Bhavan, allegedly without
consulting the cabinet. The emergency imposed in 1971 during the war had never been
revoked. But the 1975 emergency was different. Along with the order, a lot of draconian
measures were taken. Censorship was imposed on all kinds of media, news media
particularly. MISA (maintenance of internal security act) was imposed, all opposition leaders
were detained. Swamy managed to escape but most were arrested. Most were in the Rohtak
jail, Advani and Vajpayee were in Bangalore. All leaders together in the Rohtak jail formed
the Janta Party.
At this time, when there is no political opposition. Since she could not participate in
parliamentary debates, Mrs. Gandhi made sure that there was no debate. 11th August is when
her case was listed for hearing. On 10th, parliament passed the 39th amendment.

39th amendment:
1. Introduced a clause Article 329A (329 deals with election disputes). It said that any
disputes related to the election of the PM and the LS Speaker could not be challenged
before courts, and it could only be heard by a panel of parliamentarians. This meant that
the court wouldn’t have jurisdiction to hear the matter the immediate next day.
2. Before the 39th amendment, retrospective amendments had been made to the
RPA and election laws, and these were placed in the 9th Schedule by means of the
39th amendment. These amendments removed all grounds based on which her
election could be challenged. For example, there was a judgement that held that a
party's expenditure on a candidate would be considered that candidate's expenditure.
There were allegations that she had spent beyond the ceiling to distribute saris, dhotis,
liquor. The retrospective amendment changed the definition of candidate saying that a
person could be considered candidate only when they filed the nomination papers, even
though their candidature had been publicly declared long ago. Yash Pal Kapoor, her
PMO officer who was handling her campaign, had been active all of Jan 1971 but she
filed her nomination only in Feb. All expenses prior to that were retrospectively
validated. Kapoor also had a back-dated resignation letter from the PMO.

11th august, the five-judge bench sits. Ray CJ, Matthew, Beg, Chandrachud, Khanna were
part of the Bench. All minority judges from Kesavananda and Khanna were on the Bench.
This was an implicit attempt to revisit the Basic Structure, because this was the first major
constitutional amendment after Kesavananda.
Palkhivala was originally representing her but he refused after the Emergency was imposed.
Shanti Bhushan was representing Raj Narain. He raised the argument of legislatively
removing the jurisdiction of constitutional courts. Was it fair to remove the adjudicatory
authority of a court at a time when there is emergency and there is no opposition? The AG
argued that it was all rhetoric. Just because the opposition was in jail doesn’t mean laws
cannot be passed. The court held that this was a political or administrative question, not
to be decided by the courts.
The government argued that in a parliamentary democracy, it is the parliament that is
supreme. If the government and parliament feel that another body having jurisdiction over
election disputes is not right, and if the parliament wishes to regulate it, there is nothing
wrong with it.
The judges disagreed. They held the amendment violative of the Basic Structure (Ray,
Chandrachud, and Matthew in particular). They said that 329A (4) and (5) violate the basic
stricture because they violate the principle of free and fair election, separation of
powers (it gave the parliament the power to adjudicate which is a judicial power),
democracy. The Kesavananda dissenters had a perceptible turnaround of opinion. Khanna
felt that the entire 329A should be struck down, but eventually only 2 clauses were struck
down. This is the jurisdiction part, that the court can hear the matter.
On merits, they held that there is nothing they could do to invalidate Mrs. Gandhi's
election, it stood validated. This is because they were retrospectively validated and put
into the 9th Schedule. The majority said that amendments in the RPA and election laws
were ordinary legislations, the amendment only placed them in the 9th schedule. Basic
structure scrutiny cannot be applied to ordinary legislations. They can't be tested on basic
structure because they are ordinary legislations, and they can't be tested as ordinary
legislations because they are in the 9th Schedule. Khanna fell in his own trap, since he held in
Kesavananda that Basic Structure scrutiny shall exist only for amendments. Everyone was
crystal clear that this entire exercise was wrong, but nothing could be done about it.
 One argument that has been made subsequently, but never in that case, is that the
above 2 arguments are fair. But since an amendment has been used to put the law in
the 9th Schedule, why not scrutinise the amendment (the very act of placing it in the
9th Schedule) and by extent, scrutinise the law itself.
The result thus was that her election was validated. She continued as PM and as MP from Rae
Bareli. Interestingly though, Beg gave a partial dissent. He said that even ordinary laws
should be subject to Basic Structure scrutiny because the hierarchy is illogical, since in
a manner, it prioritises ordinary laws over amendments in that they cannot be subject
to similar scrutiny. The 9th Schedule only offers protection from FR scrutiny, not from
legislative competence scrutiny. If a state list entry related law is enacted by the Parliament
and placed in the 9th Schedule. This can be challenged on the grounds of lacking legislative
competence and struck down.

On FRs:
- Khanna clarified that the principles enshrined in the FRs can be a part of the basic
structure. FRs as a block/ number of articles cannot be collectively placed in the basic
structure. Individually FRs enshrining certain core principles (eg- equality, choice,
liberty etc) can be the basic structure.
- Mathew went a step ahead and said that if a FR is a part of the BS, then a 9 th schedule
law can be scrutinized against that FRs he did not scrutinized election laws against
equality because he didn’t believe it to be a part of basic structure.

42nd amendment: Swaran Singh Committee was appointed by Indira Gandhi to make
changes to the constitution by 42nd amendment.
The very length of the amendment was larger than the constitutions of most countries. It is
called the mini constitution because it made decisive changes to a lot of important provisions.
This is the biggest constitutional amendment in the history of constitutions in the world.
This amendment had 3 major changes:
1. Introduced article 368(4) which says that constitutional amendments shall not be
called for question in any court of law on any grounds (including grounds of basic
structure). This amendment was a direct assault on the basic structure.
2. Introduced article 368(5): just to make it clear, it said that parliament shall have
unlimited powers to amend the constitution. She essentially took the position back to
Shankari Prasad.
3. Amendment to article 31C: when any amendment is made in pursuance of socialist
principles shall not be called into question on the grounds of article 14 or 19 or
31(parliament's discretion to determine that it was indeed in pursuance was struck
down in Kesavananda), the addition was that any law passed in furtherance of any
DPSP cannot be challenged for FR violation. On the question of why DPSPs are being
given priority, DPSPs are very elastic and broadly framed. They are being prioritised
because a lot of things can be justified on the grounds of various DPSPs, and
prioritising them would insulate from fundamental rights challenges. (gave DPSP a
paramount status, furtherance of which is immunized from FR scrutiny.)

A lot of things were going on India at this time. Sanjay Gandhi was doing everything that he
was doing. Mrs. Gandhi had a feeling of invincibility. Sometime in late 1976, she asked the
IB chief about the general mood of the country. What if she revoked the emergency and
called for elections. What would her prospects be? He assured that she would come back to
power if she did that. She went to the Kumbh, took a dip and announced that the emergency
was being revoked in early 1977 and there would be fresh elections. The congress was swept
out in the election. Mrs. Gandhi lost Rae Bareli, Sanjay lost Amethi. The congress did
reasonably well in southern India. Janata Party won a landslide. Morarji Desai became the
first non-congress PM.

It was a tricky government to begin with. They had a lot of differences. The only common
factor was their hatred for Indira Gandhi. Advani and Vajpayee were asked by JP to give up
their allegiance to the RSS. There was a huge rift between Charan Singh and Morarji. What
they were decisive about was constitutional amendments. By means of the 44th
amendment, they largely undid the 42nd amendment. It removed 31 as a ground of
challenge, with it being only 14 and 19 now. They did leave a few things however. They
let socialism and secularism stay in the Preamble. They could not take 31C back to
where it was. They could not repeal 368(4) and (5) because they did not have numbers
in the Rajya Sabha. They reached out to Mrs. Gandhi for support. She said that she would
support them on other issues but these three, she would not because she wanted to send a
message that Parliament was supreme.

Minerva Mills v. Union of India

The court was preparing to do something. Palkhivala visited the SC to represent a client, a
textile mill in Bangalore, Minerva Mills. This mill was nationalised due to alleged
mismanagement under Sick Textile Undertakings (Nationalisation) Act 1974. The ground to
challenge this would be on the basis of deprivation of property.
However, since the cause of action arose in 1974, the applicable law would be the
unamended article 31C which was upheld by Kesavananda. Therefore, the validity of 31C
could not be challenged. And the amended 31C could not be challenged because there was no
cause of action. Palkhivala told the bench that he could argue on the amended 31C and
the court could decide. This happened because he was in a hurry. The court could deny this,
but Chandrachud allowed this. Everyone was in a hurry because this was 1979, there was an
election next year. Morarji was out, Charan Singh was out within 21 days because the
Congress withdrew support. Mrs. Gandhi was slated to be back in power. Out of paranoia, the
court also considered matters that weren't even relevant to the case.
In Sanjeev Cook Manufacturing, Chinappa Reddy J held that discussion on 31C in Minerva
Mills was obiter because the amendment would not be applicable but that judgement is not
relevant in these times.
But if an amendment being challenged, the nationalisation is being challenged, 31C and its
expansion is being challenged; the one thing that needed to be bypassed was 368(4) and (5).
Palkhivala was perhaps doing it intentionally, also because Indira Gandhi is out of power, so
the AG is also not being as vehement to defend the Union. The judges also knew that she
would return, and that they had to do something before that. Chandrachud CJ was also aware
that she would try to overrule Minerva Mills when she returns to power.
1. The jurisdictional hurdle that needed to be cleared was 368(4) and (5) because that
would be a defence to prevent the court from even hearing the matter. The court
struck down 368(4) and (5) using the Basic Structure. While doing so, it said that the
limited amending power of the Parliament was part of the Basic Structure. This
was a way of saying that the fact there is a basic structure is a part of the basic
structure.
2. Palikhiwala argued that 31C made FRs infunctuous and subservient to the DPSP. The
government could pass any law and justify it under DPSP, as it would be insulated
from FR scrutiny under Art 14 and 19. Held: The expanded 31C was not even
relevant to the cause of action but the court still struck it down saying that it disrupted
the harmony b/w FRs and DPSPs and that harmony is part of the Basic Structure.

Maneka Gandhi held that 14, 19, 21 (the golden triangle) was part of the Basic Structure.
Minerva Mills ensured that the Constitution is Indira Gandhi-proof. Kesavananda became
Kesavananda because of Minerva Mills.

Waman Rao v. Union of India

The question that the bench tried to answer here was about the amendments that put laws in
the 9th Schedule. The court undertook an academic exercise. The bench decided to look into
article 31A, B and C, thereby examining the 1st and 25th amendments. The case was a
dampener. It was held that 31A and B were valid because they came on the heels of the
original constitution. So they were essentially the actual constitution, and not an
amendment. It was brought by the Constituent assembly, by the constitution makers. 31C
was also held valid (the unamended 31C).
The reason this was a landmark case because it said that when laws are being placed into
the 9th schedule or enacting any other constitution, any amendment post 24th April
1973 (Kesvananda Bharati), will have to be decided on the touchstone of the basic
structure. If this had happened before, the placing of amendments to election laws into the
9th schedule could have been challenged, but since it came after, that amendment did not face
as much of a challenge.
(Doctrine of contemporaneous exposition)
Since the Constitution makers themselves made the first amendment as the provisional
parliament, there is a chance that this is why the Court refused to intervene. Had it been some
other Parliament, chances are that the SC would not have been so accommodative. Since the
Parliament represented the popular will of the PEOPLE, the judiciary of the 50s felt that these
amendments and the reasoning behind them fell on the legislature and this is where the
judiciary needed to take a back seat.

Chandrachud also said that the golden triangle is a part of the basic structure.

SR Bommai v. Union of India. Some state governments were dismissed using article 356. 4
of them were run by the BJP. This happened in the immediate aftermath of the Babri Masjid
demolition. UP, Rajasthan, Madhya Pradesh and Himachal. The dismissal of these
governments were challenged. The SC did a thorough study of article 356. while the
dismissal of these governments was justified, the court held that secularism was a part of the
basic structure and if these governments were allowed to continue, secularism would be in
danger and hence, their dismissal was not unconstitutional. No amendment was involved in
the dismissal of these governments. Then what is a basic structure scrutiny doing here.
The basic structure has become the go-to option for courts here. This is a problematic
trend. By using it frivolously, is the basic structure not getting weakened.
Article 356 allows for dismissing a government can happen when there is a breakdown of
constitutional machinery. The only problem is that at least in one state, HP, did not have any
documented case of constitutional breakdown. Its dismissal was justified by the SC on
grounds that it was run by a party that ruled another state miles away where there was a
breakdown of constitutional machinery due to demolition of Babri. Even Beg J, who in
Indira Nehru Gandhi had said in his dissent that Basic structure scrutiny could be applied to
ordinary laws, later on backtracked in State of Karnataka v. Union of India and said that it
would apply only to constitutional amendments.

Sometime in 1980s, an amendment created administrative tribunals. One of those tribunals

said that their decision was final. People could not go to the HCs under 226. Only course was
36 which gave the SC its special leave jurisdiction, which was next to none. This essentially
gave finality to the tribunal's decisions. This was problematic because tribunals have
appointments and removals are done by the executive. Membership is also dependent on the
government. The principal litigator will also be appointing the adjudicators.
The SC held in L Chandra Kumar v. UoI that this amendment was wrong. The jurisdiction
of the HCs could not be subjugated to tribunals. It held that this amendment was violative of
the basic structure. But what the court also did was that subject the Acts setting up the
tribunals to a basic structure scrutiny.

The NJAC issue: the constitution originally says that judges will be appointed to the SC and
the HC by the President in consultation with the CJI. In 1993, there was a judgement where it
was held that 'consultation' would mean 'concurrence'. The primacy would be with the
judiciary. Thus, the collegium was set up. In 1999, it was held that the collegium would have
not 2 but 4 senior judges alongside the CJI. In 2014, the NJAC was struck down and the
judicial primacy was reiterated. There was also an act of NJAC being proposed that the
commission would have CJI, 2 senior judges, PM, LoP, and eminent personalities. It also had
procedure. The challenge to the NJAC was to the amendment and the NJAC act. The
majority was of the opinion that the moment the exclusivity of the judiciary would
threaten the independence of the judiciary, which is a basic feature,. A basic structure
check on the amendment was fine. Was a basic structure scrutiny of the NJAC act
necessary? Kehar CJ justified this by saying that ordinary laws should also be subject to
basic structure. He said that since acts come from the constitutional provisions and the basic
structure also comes from the constitution, ordinary laws can be subjected to a basic structure
scrutiny. To conflate a constitutional provisions with a constitutional ideas is a disservice to
the basic structure, The only good part is the other judges didn’t say anything of the sort.

GC Kanungo: provisions of the arbitration act were challenged. The SC brought in basic
structure here.

M Nagaraj v. Union of India, 2006: 77th, 81st, 82nd, 85th amendments (reservation laws) were
challenged. For the first time, the SC tried to come up with a test for the basic structure.
Essence of rights test. The rights in question in this case were rights of equality. The court
said that tests have a 2-prong:
1. Width: when making an amendment impacting any FR, stretch the amendment as
much as possible, give it the widest possible ambit. Stretch it so as to understand the
complete ramifications an amendment can have. This is because for an amendment to
be struck down, you need to know what an amendment can possibly do. If after
stretching the amendment, if we notice that the essence of certain rights has been
touched, and it has chilling effects on any constitutionally provided limitations/
restrictions.
2. Identity test: if the first test gives a positive result. If the right is so integral to the
constitution that touching upon that right has changed the essence or identity of the
constitution. If this is answered in the negative, the amendment is valid.
The question is, what constitutes the identity of the constitution? To simplify one imprecise
thing, another has been evolved.

IR Coelho v. State of TN by Sabharwal CJ. It dealt with certain reservation laws being put
into the 9th Schedule. Whether it is permissible for the Parliament under Art 31B to
immunize legislations from FRs by inserting them in the 9 th schedule. It took Waman Rao one
step forward by going beyond the essence of rights test. Art. 14, 15, 16, 19, 21 were FRs
that were declared part of the Basic Structure. 9th Schedule was meant to prevent a FR
scrutiny. But since Waman Rao said that laws put into the 9th Schedule will be subject to
basic structure scrutiny, this means that all 9th Schedule laws will now be subject to FR test.
This is what Sabharwal called the rights test. He drew it from:
A. J Mathew in Indira Gandhi v Raj narain (ordinary law can be
challenged wrt FRs)
B. Chandrachud in Minerva mills about golden triangle
C. Waman Rao on post 1973 insertions to the 9th schedule
D. M Nagaraj- width and identity- essence of rights test
Notionally, it may be a basic structure review, practically it is an FR review. This means that
there is no purpose of the 9th Schedule.
One of the ramifications of this judgement is that an amendment that places a law in the 9th
Schedule will only be subject to the FR parts of the Basic Structure. It ends up giving the
impression that non-FR parts of the Basic Structure cannot be grounds for scrutiny.
Under the rights test- Article 14, 19 and 21 were considered to be a part of the basic structure
(along with art 32)- not just the underlying principles but the provisions themselves.

Glanrock Estate Pvt. Ltd. v. State of TN: it was held in 2010 that it is only ramifications on
the core ideas of the FR, and not all allied elements it encompasses. An incidental violation
should not be regarded as a transgression. This was in damage control, to limit the scope of
Coelho.
It held that every violation of Art 14 would not be scrutinized but only fundamental ideas
u/Art 14- narrowed down the scope of Coelho by hierarchising ordinary transgression of Art
14 and major violations.

Indian medical association v UoI: IMP QUESTIONS RAISED: whether rights test renders
the essence of rights test redundant? – rights test is used when all of part III is excluded for
scrutiny (9th schedule) – essence of rights test is used for violation of individual rights. Hence
both tests are different in scope and are valid, and not mutually exclusive.

Delhi judicial services case: added a number of other articles art 141 and 142 under basic
structure.

One persisting dilemma which engaged the attention of constitutional scholars is whether
the basic structure test can be applied to ordinary laws or restricted only to constitutional
amendments. In Kuldip Nayar v Union of India, the Supreme Court held that the doctrine
should be strictly limited to constitutional amendments. The Centre took the stand that the
doctrine is inapplicable to ordinary statutes.
But at least in three cases prior to Kuldip Nayar, the Supreme Court had held ordinary
laws or its provisions unconstitutional on the ground that they violated the basic structure.
In Dr.D.C. Wadhwa and Others v State of Bihar (1986), the Supreme Court struck down
the re-promulgation of ordinances in Bihar on the ground of basic structure violation.
In Indra Sawhney II (1999), a bench of three judges of the Supreme Court held that a state-
enacted law (by Kerala on reservation for the ‘creamy layer’) violated the doctrine of basic
structure.
Madhav Khosla, in his short Introduction to the Indian Constitution, defends the court’s
judgment in Kuldip Nayar, and suggests that it is almost bizarre to believe that a statute
could pass the test for constitutionality, but breach the basic structure standard.
On the other hand scholars thinks that an absurd situation that may result if parliament is
indeed allowed to pass laws without regard for the basic structure doctrine – a
constitutional amendment will be subject to a more rigorous test than an ordinary law.

THE JUDICIARY:
One of the most crucial elements from where the judiciary derives its powers is judicial
independence. There are structures in place that ensure this independence. The age of
retirement is set at 62 for HC and 65 for SC (security of tenure). The law commission has
recommended increasing this age. Second, a provision for impeachment exists, but that is a
very rigorous process. It is harder than passing amendments because it not only needs 2/3rds
but both houses need to pass it in the same session. This difficulty exists to safeguard the
independence of the judiciary. Makes it more difficult for the ruling party to remove the
judge who gives judgement against it. Third aspect is the salary. The salary of a judge cannot
be reduced by the Parliament at its whims and fancies. It comes from the consolidated funds.
The only avenue where the government had some leeway was appointment of judges.

J Sen was about to be impeached but he retired. J Ramaswamy was also almost impeached.

Appointment
ARTICLE 124(2): Before the 99th amendment, Art 124(2) allowed for a judge to the SC
shall be appointed by the President in "consultation" with the CJI and any other judge the
President wants to consult. It basically means discuss, not binding in nature as per the
dictionary meaning. The constitution consciously uses the word consultation because this is
the last time the government has any say in the judiciary. Because post appointment, a judge
is completely independent of the government and parliament. For 40 years, this is the method
that was followed. Now the CJI used to informally consult the senior judges as a matter of
practice. This was known as the collegium. The President would then consult the CJI. Even
though there was executive appointment of judges, this system has given the country some of
the finest judges.
The executive appointment of judges was also politically motivated at times, especially in the
emergency era. Moreover, judges were randomly transferred (Art. 222) without consent, and
improper procedure was followed.

The first time this system was challenged was the case of UoI v. Sankalchand Himmatlal
Seth (transfer case). He was being transferred from Patna to Calcutta. He said that his consent
had not been taken for this transfer. Art 222 talks about transfer of judges, and doesn’t talk
about consent. His transfer was stayed. UoI appealed in the SC. SC said that “consultation”
has to be real, substantive and effective, and all relevant materials ought to be given to the
bench, on the basis of which the transfer was made. Each and every fact or document taken in
to consideration for the transfer must be shared with the CJI. However, the CJI would be
subservient to the president, pointing towards executive primacy. the court said that a
consultation is required, but even if they don’t come to the same conclusion then the word of
the president will prevail.
Chandrachud said that transfer mechanism was subject to judicial review.

In 1981 came one of the most landmark challenges to the appointments is fondly called the
First Judges case but its name was SP Gupta v. UoI (appointment case) delivered by
Bhagwati CJ. The process of appointment of judges in HC came up for consideration, u/A
217. This was also one of the first PILs.
 Bhagwati: the Constitution says that executive will appoint judges in consultation
with the CJI, not concurrence. However, this consultation is real and effective
consultation. The consultation with each of the three constitutional functionaries- CJI,
Justices of HCs, and State Governor should be consulted in a full and efficient
manner. There must be due deliberation of all facts and materials.
 Transfer of judges cannot be arbitrary and has to be made in national interest,
after effective consultation with the CJI.
 Executive primacy: president can override opinions in case of a disagreement
 The President’s decision can be challenged but may not be subjected to judicial
review.
 Independence of judiciary is a basic feature of the constitution.
 SP Gupta differed with Sankalchand Himmatlal Seth primarily on judicial
review.

1993 is when things changed in SC ADVOCATES ON RECORD ASSOCIATION V.

UNION OF INDIA also called the second judges case. It was a nine-judge bench headed by
Verma J. The SC changed the meaning of consultation to almost signify concurrence.
 It clearly made the collegium, which was a conventional practice, into a
constitutional body. It held that every time an appointment happens, the CJI will
initiate it, in consultation with collegium. Collegium will have the CJI and two senior
most judges of the SC. In case of elevating someone from the HC, the senior most
judge of the SC whose parent HC is that HC. So 3 judges were compulsory plus one
more, unless one of the 3 had its parent HC as the HC whose judge is being elevated.
 No appointment of any Judge to the Supreme Court or any High Court can be made,
unless it is in conformity with the opinion of the Chief Justice of India. CJI would
provide a list of names from which appointment has to be made. The President could
send back the recommendation once, but if it was reiterated, he was bound by it.
 The opinion of the Chief Justice of India has not mere primacy, but is
determinative in the matter of transfers of High Court Judges/Chief Justices. Opinion
of CJI should have the maximum weight. The case warrants a complete shift to
judicial primacy.
  Any transfer made on the recommendation of the Chief Justice of India is not to
be deemed to be punitive, and such transfer is not justiciable on any ground. Only
limited judicial review is available in matters of appointments and transfers.

 Problems: post collegium system has witnessed a homogeneity in appointments, with

all the judges getting appointed with similar backgrounds etc.
 1+2+1 was problematic
 Constitution makers specified “consultation” as a means of checks and balance,
concurrence gives unlimited powers to the judiciary.
 The constitution said consultation. You have not changed the words. Can, by any
form of interpretation, the word consultation be changed to concurrence? This is an
informal amendment, where the words remain the same but the mechanism has been
reversed by means of interpretation. Can the SC do it is a philosophical one because
the SC has done it and continues to do it. It has replaced executive primacy with
judicial primacy in appointments.

Quotes from the 2nd judges case: Para 6: the system of conferring of discretionary authority
on a body of men rather than one man is to ensure a plurality of opinion in the final decision,
which would have the benefit of collective wisdom of all these judges. It prevents the scope
of absolute power in the hands of one person and acts as a check.

Six years later in 1999, there was a presidential reference In Re: Presidential Reference 1 of
1998, (8 points) known as the third judges case. It went in as a presidential reference u/A 143.
References are not binding but here, the SC said that it would deliver the advice only if the
government promised to be bound by it. Attorney General Sorabjee made this promise. The
question of appointments was re-asked in this reference. There were questions because the
1+2+1 was a glitch. There was a question of the relative position of the CJI vis-a-vis other
judges. The second judges’ case had asked the SC to have an all-India seniority list for
appointing judges and it had to give reasons if it ever departed from that list. One of the
questions was whether there was any scope for judicial review. Another was whether there
should be a negative reasoning for not appointing a judge despite seniority, or should there be
a positive reasoning for appointing a particular judge, the seniority list notwithstanding.
All of these cases had a primary issue to deal with – whether the word ‘consultation’ in
Article 124 and 217 of the Constitution, where the President has to ‘Consult’ the Chief
Justice before effecting a judicial appointment or transfer, can be interpreted as ‘concurrence’
of the Judiciary.

 2nd judges said 1+2+1 judges of the collegium. The problem with this was that if
there are 10 vacancies, there will be 10 different collegiums. This was done away with
by the 3rd judges. It was held that the collegium would comprise the CJI and four
senior most judges of the SC, and this will be a stable collegium. Would take into
account the opinion of the CJ of the HC - simply an opinion and any other judge
who knows the judge listed. Their opinions can be taken.
 For HCs, CJI+2 + CJ+ governor. For transfer, the CJs of the 2 HCs (from and to, and
consult with any number of people- cji + 2 sc judges + cjs of both hcs)
 It also said that if one of the 4 is old enough to retire before becoming CJI, a judge
outside the collegium, who might be on track to become CJI, can be included in the
collegium. This means that on some occasions, the collegium can have more than 5
judges.
 The 3rd judges gave a substantial elaboration on what happens within the collegium.
The 2nd judges had given an impression that since the CJI's was the final word, he
would sort of have a veto. The 3rd judges clarified that the CJI is just one of the five.
Therefore, there is no veto with the CJI. The bench expressed hope that there would
be consensus, but in cases of dispute, the CJI wouldn't have a veto. CJI does not have
primacy within the collegium. “Consultation” means consultation with a plurality
of judges, and not just the CJI. The plurality of views in the Judiciary has to be
considered.
 Integrated participatory consultive process for selecting the best and most suitable
persons available for appointment in which all the constitutional functionaries must
perform this duty collectively with a view primarily to reach an agreed decision.
 Recommendation of the collegium is binding on the president.
 The collegium cannot be subjected to judicial review, except when the procedures
laid down have not been followed.
 Instead of negative reasoning for skipping the seniority list, positive reasoning
should be given. Merit should be taken into consideration, even if the seniority list
is there. (NP Singh had an interesting take on this). The question was how do you
judge merit? How do you decide when the seniority needs to be bypassed. There are
judges who may be very diligent but come from a very low-profile HC. Various HCs
have different kinds of cases. How do you pit a judge of a lesser-known HC who
diligently disposes bail applications, against a judge from the Bombay HC hearing big
time financial and commercial matters.
Every HC should have representation. Every community should have representation
in the Court. Judges from diverse backgrounds should be appointed so that the court is
adept at handling matters of different depths.

Over the course of the three judges cases, the SC evolved the principle of judicial
independence to mean that no other organ of the state would have any say in appointments.
Collegium system in use since 1993 finds no mention in the Indian constitution, or the
successive amendments. Thus, there was a shift from primacy to judicial exclusivity.

2014: NJAC is enacted by the 99th amendment.

 Added Art. 124A,B,C to the constitution. It basically sought to replace 124(2) and
217(2) by clause 2A in both articles with a body called the NJAC. It would comprise
6 members: the CJI, the 2 senior most judges, the law minister, 2 eminent people
elected by a body of the CJI, PM, and Leader of Opposition. One of the eminent
 people had to be a woman or minority or SC or ST, provided one of the other 4 isn't
already from one of these groups.
 The Collegium had 1+2. Here in addition to this, there is a career politician, the law
minister. 2 eminent people would represent certain other people of the society. But
they would not be government appointees alone, since that panel also has Leader of
opposition and CJI. The reason was that the political class felt that the primacy to the
judiciary is an aberration because the constitution did not envisage this. If Article 124
were interpreted as per the dictionary meaning, the executive would have
primacy. Second judges reversed this, and third judges solidified that judicial
primacy.
 A nomination can be discarded by the NJAC if it is objected to by the President
and 2 members of NJAC.
 There is no formal presiding officer- informally led by CJI.
 The 99th amendment categorically said that the consultation would be with the NJAC,
not the collegium..
 Abhinav Chandrachud writes that the biggest bane of the SC and the collegium is that
there is a lack of heterogeneity. Most judges (he proves this statistically) have grown
up in cities, educated in good institutions, have lineages, barrister ship has happened
in England. It is one of the most homogenous entity, has very little diversity. Very
few judges have seen poverty, very few know what the poor country looks like. Very
few are judicial service people, very few are elevated from the Bar. The SC, and the
HCs to a very great extent, have a serious lack of diversity. The NJAC was meant to
broad-base the pool of judges.

1 day after the president signed the amendment, the SC took it up and eventually held that it
violates the basic structure. SC Advocates on Records Association v. Union of India, 2015.
The 5 judges bench struck down NJAC Act citing the basic structure on grounds of judicial
independence and separation of power.
It was held that the dilution of the collegium and involvement of outsiders was violative of
the basic structure- essentially judicial exclusivity in appointment is a part of the basic
structure.
The working of the NJAC was done by means of an ordinary legislation. Therefore, it cannot
be challenged on the basis of the basic structure. The majority judges did not go into an
analysis of the Basic Structure of the Act. The discussion was limited to an analysis of 99th
Amendment.
Justice Chelameshwar’s dissent: he distinguished between basic structure and basic features.
The latter constituted the former. If minor amendments are made to basic features which do
not affect the basic structure, then it is acceptable. This is because the minor changes in
process do not hit the basic structure. UAF example: change in voting age vs. discarding
UAF
Another problem associated with this judgement was that they applied Basic structure
doctrine to an act of parliament, when the basic structure doctrine should only be applied to
the amendments.

SCARA has been criticised on account of judicial tyranny: The collegium system envisaged
by the judiciary firstly, has not constitutional basis, and secondly, there are impending
dangers of exclusivity. Moreover, post Kesavananda Bharati, the judiciary has acquired a
monopoly over amendments- unchecked, unelected judiciary- the SC is using the basic
structure to rewrite the constitution.
Arun Jaitley- criticising the judgement said that there are certain disparities even within the
elements of basic structure. Judicial independence is given more primacy than the ways in
which the constitution wants the appointment process to work.
Despite the constitutional using the word “consultation” explicitly, the present amendement
departs from the original constitutional intent. The 99th amendment created a body to
facilitate the executive primacy that the original meaning of "consultation" anyway
established. The NJAC, despite all its flaws, takes things as close to what 124(2) originally
intended. That cannot be subjected to a basic structure scrutiny. Hence the striking down of
NJAC has been widely criticised.
 This had 2 problems. Judging the calibre is a very difficult process. And second, it
goes directly against what the constitution said.
Over the course of 4 cases, SC has established complete, dangerous levels of exclusivity in
judicial appointments and transfers. No constitutional basis for this monopolizing power-
essentially rewriting the constitution.

JURISDICTION (ORIGINAL AND APPELLATE):

Original jurisdiction of the SC:
Cases where the SC will be the court of first instance (exclusive jurisdiction) and the matter
can be directly referred to the SC without any lower courts having to hear the matter. For
example, writ jurisdiction under Art. 32. Art. 131 talks about the original jurisdiction of the
SC: 1. The Centre and one or more states, 2. Centre and State on one end and state or states
on the other, 3. between two or more states. This jurisdiction is "subject to the provisions of
the Constitution."(other adjudicatory bodies may be given preference). The SC shall have
jurisdiction, to the exclusion of all other courts. Matters concerning these parties can be heard
by the SC only if the answers to the questions raised by these cases will have ramifications on
the existence or extent of legal rights.
"Subject to the provisions of this Constitution": one exception is Art. 262, which talks
about inter-state river water disputes, where the court of first instance is the river water
disputes tribunal. This exception exists because the issue is heavily facts based, and requires
special issue-based competence to decide on matters. For example, based on the extent of
monsoons in a year, how much water is to be released is something an expert panel can
determine based on hydrography. It is a question of rights, domestic and international legal
rights issue, but it requires field-specific technical expertise. Hence, this is an exception to
Article 131.
Existence and extent of legal rights:
1. State of West Bengal v. Union of India. Three lists. An entry in the union list deals with
acquisition and requisition of property. No details on the kinds of property. The parliament
passed a law using which the government nationalised individual pieces of land which had
coal reserves underneath. WB had an issue with this. It said that before passing this law, the
property belonged to different people. Some of which belonged to the government of WB.
The state was as much a sovereign as the union. Private property could be taken away, but
how could state government property be taken away. It violated federalism. This is where it
became a question of existence and extent of legal rights. Merits will be discussed later. But
solely on grounds of jurisdiction, the SC said it would fall within the original jurisdiction of
the SC. Art 131 could be invoked- centre state dispute involving determination of a legal
right
2. State of Rajasthan v. Union of India. Morarji became PM post-emergency. His Home
Minister Chaudhary Charan Singh wrote to 9 congress governments. He asked them to take
moral responsibility of the Congress' national decimation in '77 and asked them to step down.
He threatened president's rule if they did not step down. When some CMs did not take this
seriously, Charan Singh dismissed their governments. S.o. Rajasthan moved the SC, asking it
to take cognizance. It is a state-centre dispute. But is it a question of existence or extent of
legal rights? Yes. The mandate may have been against the congress nationally and some
assemblies. But these CMs still have the mandate to finish their 5-year terms. The SC did
take cognizance because it had jurisdiction in State of Rajasthan v. Union of India. The
question that arose was whether Art 131(a) includes State governments. Article 131 provides
a forum for resolution which involves a question on which the existence of a legal right
depends- not a mere political issue. In the present case, there was a legal right issue involved
as the States have the legal right to immunity and freedom from central power. Held: the
constitutional status of a state cannot be violated by assault under Art. 356.
3. State of Karnataka v. Union of India. An allegation against the CM of Karnataka. This is
a personal allegation, not a governmental one. But a commission was set up to investigate
these allegations. The State wanted to invoke the SC's original jurisdiction as this was ultra
vires the federal structure and a legal right of the state was affected. The Union resisted and
argued that Article 131 said union and one or more "states" and not state governments. The
present actions only affected the CM. The jurisdiction lied only if it discussed the rights of
the state in general. The SC held that this is a very cosmetic difference. An inquiry against
the government will have ramifications on the State in general. The state (abstract entity) and
state government (its concrete representative) are not juristically separable. The claim of the
government is the claim of the State.

Appellate jurisdiction of the SC

There is a judgement of some other court and you are going to the SC for an appeal. There
are 4 kinds of appeal:
1. Civil: when we got the constitution, we did not want the SC to look like what it looks
like today, burdened with cases. There was a need to limit the appeals to the SC as much
 as petition. Even the original jurisdiction was supposed to be very limited. A first
question under Art. 32 would have been why not go to the HC under Art. 226. Appeals
would create social asymmetry since people with money power could easily go to the
SC. Articles 132, 133, 134 talk about appeals. 132 talks about substantial question of
law, 133 talks about civil, 134 is criminal. Under 133, only those cases could be heard on
appeal by the SC which had a pecuniary value of 20,000 or more. This was a massive
exclusion in 1950.
2. Criminal: Art. 134 remined the same but changes were made in its implications. There
are 2 kinds of appeal under Article 134. one where there is an automatic right of appeal
(where the HC overturned the trial court and awarded death, where the HC used its
supervisory powers and heard the case itself and awarded death sentence); if the court
feels that it is a fit case for appeal.
3. Substantial question of law as to the interpretation of the constitution: it cannot be
every question of law. The HC would decide that the question was such that it had to be
determined by the SC. A natural corollary to this was Article 145(3), which says that on
such questions, minimum of 5 judges will sit.
4. Special Leave Petitions: under special circumstances (civil but below 20000, criminal
but not within the appeal mechanism, substantial question but the HC did not make a
reference), leave could be sought under Art.136. Even a trial court's order can be
appealed this way. But 136 envisaged very exceptional cases. SLPs are very
discretionary. Which is why, this cannot be the ordinary route. If this were the only
route, appellate jurisdiction of the SC would become redundant.
Gradually, it was felt that this was not working. 20000 bar was becoming very exclusionary,
there were substantial questions in cases that did not have value of 20000 of more.

In 1970, the Parliament passed a law called The Supreme Court (Enlargement of Criminal
Jurisdiction) Act, 1970. 134(2) empowers the Parliament to expand jurisdiction by means of
law. 1. Acquittal by trial court but the HC reversed it and sentenced you to 10 or more years
gave an automatic right of criminal appeal. 2. Your case was being heard by the trial court
but was withdrawn by the HC and it sentenced you to 10 or more years also gave this right.
These gave them an automatic right to appeal. Cases in the SC began to rise.
In 1972, we got the 30th Constitutional Amendment which changed Art 133. The pecuniary
limit was removed and the phrase “involving substantial questions of law” was added. If the
HC felt that a question of law of general importance was involved, the HC could certify
going to the SC. Previously, above 20000, the HC didnt had discretionary powers. But now, it
did. The HCs now had discretion under all 3 Articles. Earlier, if a criminal case had an
automatic right of appeal or if a civil case had a value of more than 20k, the SC could hear it
without certification from the HC. Now a HC certificate has become necessary to file an
appeal, If HC does not give this certificate, people take the route of SLPs.

Under 132, it does not matter what kind of case it is, civil criminal etc. The HC just has to
verify that a substantial question of law is involved.
In brojonath ganguly case- which initially started out an a contracts case, went on to become
a case of constitutional interpretation.
There is a very interesting difference between 132 and 133 in terms of contents. 133(3): "one
judge of a HC". This essentially means intra-court appeals. Within the same HC, if a single
judge bench has decided a matter, you have the right to appeal before a division bench of the
same HC. You cannot go to the SC without first exhausting the remedies of appeal
within the same HC. The question therefore is whether a single judge can give you a
certificate through which you can go to the SC under 132?
One argument is that if a single judge feels that a substantial question is involved, he can let
you go to the SC without exhausting the HC remedies. Moreover, adding multiple steps
would push the matter further. Another argument is that if you do this, you are skipping a
step. A drafting fallacy cannot be allowed to lead to this situation. It can be addressed by
matters of interpretation.

Election Commission v. Saka Venkata Subba Rao, 1953: A writ petition u/Art 226 was
filed in the Madras HC regarding election discrepancies. The EC claimed that Madras HC
had no jurisdiction to hear because the petition was against the EC, which is situated in Delhi,
and since Delhi was under Punjab HC at that time, so Punjab HC should be hearing the
matter. SC accepted EC’s consideration. It was an appeal from a single judge bench of the
madras HC showing that steps can be skipped.
The Court held that the language of Article 226, as it then stood, ought to be interpreted as
meaning that the authority to whom the writ is issued must be situated within the territorial
jurisdiction of the High Court. That is, only the High Court of Punjab could exercise writ
jurisdiction in respect of bodies like the Election Commission, seated in Delhi.
This case caused a lot of inconvenience to people residing far away from New Delhi if writs
against the Union Executive authorities could not be filed in their respective High Courts, the
language of Article 226 was held to leave room for no other interpretation.

Hence constitution was amended (Fifteenth Amendment to the Constitution in 1963) whereby
the cases could be heard by the HC where territorial jurisdiction lies, or where the cause of
action arises, irrespective of the seat of authority of the governmental institution.

RD Agarwala v. Union of India, 1970: the court categorically said that 132 cannot be
invoked unless all intra-court appeal remedies in the HC have been exhausted. Only a
division bench can grant a certification of appeal. A single judge bench of HC cannot grant
certificate of appeal to SC- there should be finality by a larger bench.
Seervai’s criticism: Not once has Venkata Subba Rao been referred to or overruled. Hence,
this judgement was per incuriam. An existing position is being overridden without even
referring to it. According to Seervai, RD Agarwala is bad law. Till date, the SC has not
responded to Seervai's criticism. In terms of law, precedents exist on both sides. In terms of
practice, single judges of HC normally don’t grant certifications of appeals.

Art. 134 A: “may” in (a) and “shall” in (b) does not deal with granting of certificate- rather it
refers to whether HC has the power to grant the certificate. “may”- HC can consider this
question even if no party has asked for a certificate. “shall”- if asked, the HC is bound to
consider it. It does not mean that the HC has to grant it, it only means that the HC has to
consider the question of granting the certificate.

If the HC denies a certificate, the only recourse is a SLP u/A. 136. An SLP is not a right.
SLPs are rejected on admissibility, not merit. SLP is not an appeal but a petition filed for an
appeal. SLPs only consider the admissibility of the matter. It only creates a pathway to hear a
case on merits. There can be multiple SLPs in civil matter. In 2010, 341 cases in the SC were
SLPs alone (Nick Robinson).
SLPs can be appeals from any court, not just the HC. You can file an SLP even against an
interim order, final order is not necessary. 136 just mentions order and not final order.

In 1970s, cases said that SLPs should shock the conscience of the court for them to be
accepted.

Review petitions:

If one of the parties feel that a judgment of the SC is wrong, it can be reopened on review
under Art. 137. This is not an appeal on the judgement. Let's say there is a glaring error in the
law of the judgement, it is a per incurium judgement, some principles of natural justice was
violated, or some fact came to light in say a criminal matter after the judgement was
delivered, a review petition can be filed. If the SC has given a judgement, no SLP would lie.
A review petition is the only recourse available here.
Order 47 rule 1 of the CPC talks about review. Judgements can be reviewed on 3 grounds:
emergence of a new fact, error apparent on the face of record, any other suitable reason.
There is a procedural limit imposed by the SC rules 1966. order 40 rule 3 says that review has
to be filed within 30 days of the delivery of the original judgement and as far as practicable,
the same bench should hear the matter. Normally, courts do a chamber grilling and decide the
matter without doing so in an open court. Courts have said that review should not be used as
a disguised appeal. Review is not an appeal.
One of the cases where there is a review is the original Sabarimala judgement. It has been
referred to a 9-judge bench. There is no error apparent or new facts here. What is the
justification to hear a review of this matter?

Curative petition- (read with Art. 137): if a bias is present even after review, you can fil a
curative petition.
Rupa Ashok Hurra v. Ashok Hurra
a. In exercise of its wide powers, the Supreme Court has also coined the remedy of curative
petitions.
b. As far as possible the same bench will hear the curative petition, unless there is an
allegation of bias. In that case the senior most judges will hear the case.
c. This petition requires verification by a Senior Advocate.
d. In this case, while the Court denied the claim of questioning the validity of the final order
or judgement of the Court under Article 32, it suggested that a curative petition could be
filed against any final order or judgment of the court, if it is vitiated by the non observance
of the principles of natural justice or on account of abuse of the process of the court. It
cannot be allowed merely to re-appreciate evidence.

Advisory jurisdiction under Art. 143:

this is very unique but very dangerous provision. How is this different? A normal case before
the SC largely on the basis of law. It is deciding a case based on something that has
happened. A presidential reference can also be about facts, and it can be about the future, the
President can ask about a situation that might arise. The SC has, so far, declined only one
reference, which concerned the RJB in 1993. despite being limited, the references have been
used to reverse decided cases, or clarify their scope. One example was the third judges, it
clarified the scope of the collegium and also changed the negative reasoning part. Another
judgement where there has been a reversal is the 2G spectrum allocation case. 122 allocations
were reversed. A presidential reference was filed. This is interesting because in a reference,
there is nobody opposing the government's counsel.
So even though it is an advisory opinion, and heard by a 5-judge bench under 145(3), a
settled judgement is reversed or clarified in a case where the government is the only party.

Article 143(1) uses the word “may’ implying that it is a discretionary decision of the court.
Article 143(2)- “shall”- the Court has to answer all questions.
President asked for advice, framed questions, SC heled to be not bound to answer. If it
answer, it cannot go beyond what has been asked, however it may determine those questions
that are ‘likely’ to arise.

TRIBUNALS:

We say that the primary reason we need tribunals is that we need subject matter expertise.
But the original discussion around tribunalisation was very different. They (law commission,
government functionaries) wanted an alternative adjudicatory mechanism to the usual
constitutional courts. They wanted it to be an effective substitute to courts. People who are
experts in their field may be a good thing, but these bodies acting as a substitute to the courts
is where the problem begins.
The first law commission (Chagla, Setalvad, Sikri) discussed the need for tribunals. The
intent was to unclog the courts. The question then was that on what grounds would they be
considered parallel? One suggestion was that the decisions would be appealable only under
Art. 136, otherwise its decision would be final and would exclude the writ jurisdiction. This
is how a tribunal would be a parallel mechanism. The reason was less of expertise and more
of clearing pendency. The 14th Law Commission Report only recommended Tribunals for
settlement of routine administrative and service matters. It did not advocate for the formation
of tribunals generally.
In 1972, the HC Arrears Committee set up under J Shah reiterated this point. In 1974, the 58 th
LC report said that tribunals should not be constituted for any matter.
During the emergency, the Swaran Singh committee recommended changes to the
constitution. This is where the 42nd amendment came from. It recommended for rampant
tribunalisation- tribunals to substitute the HCs. Judges were to be appointed by the executive.
Only the SC could review its decision u/A 136 for exceptional cases. HC’s powers under 226
were to be curtailed. Further, HC and SC not allowed to check the constitutional validity of
laws. This aimed to take the powers of tribunals to absurd ends.

Articles 323A and B were introduced by the 42nd amendment. The former created
administrative tribunals, the latter created other tribunals. These articles gave an element of
finality to the decisions of the tribunal. The government would be the litigator, and would
also appoint the adjudicators. The decision would be final and only subject to SLP
jurisdiction under Art. 136.
Shanti Bhushan, the law minister of the Janata Government wanted to scrap these but they
failed because Janata Party did not have a majority in the RS.

In 1985, Rajiv Gandhi brought the Administrative Tribunals Act. It was the exact replica of
323A. It created tribunals at the Centre and the States. There were cases against it challenging
its constitutional validity as it excluded the SC jurisdiction under 32 and HC under 226.

SP Sampat Kumar v. Union of India

Division bench- was heard by 2 judges, Bhagwati CJ and Rangnath Misra. Bhagwati made
suggestions and said that if they were not incorporated, the law shall be scrapped. They said
that every seat of HC must have a seat of the tribunal, the CJI should have some say in the
appointment of adjudicators. The tribunals should have at least 1 judicial member. The
decisions should be reviewable under 32.
The bench focussed on the perfunctory matters, not on the fact that the tribunal could be a
substitute to courts.
After the changes were incorporated, the law was reviewed by a constitutional bench.
Constitutional bench- The 5-judge bench heard the matter, and it is then that the substitution
of courts came up. Ranganath Misra gave the majority opinion. On the matter of whether
tribunals could substitute HCs, R Mishra cited a line from Bhagwati's dissenting opinion in
Minerva Mills. Bhagwati had said that the judiciary should consider the possibility of an
“effective alternative adjudicatory mechanisms”, wherein judicial review is not required.
Tribunals served this purpose, enabling the bypassing of HC writ jurisdictions. Bhagwati said
that his suggestion of alternatives was never objected to. Therefore, this part of his opinion
was not a dissent since no one objected and he was the only one who said it. Based on this
one line, the bench held that a tribunal could take away the writ jurisdiction. They played
with the word 'alternative' and said that writ jurisdiction could be ousted.
What Misra forgot that Minerva was not a case about tribunals. This alternative mechanism,
according to Misra, was tribunals. This is what gave tribunals their constitutional validity.
[ peculiar- HC’s write jurisdiction is a part of the basic structure].

In 1993, the Andhra HC said that Sampat Kumar was bad law. This was the first time an HC
said that a SC decision was bad. Sakinala Hari Nath v. State of AP. It said that it was taking
one line of Bhagwati was taken too far. Judicial review being part of the basic structure, and
could not be taken away at any cost.
In 1997, the SC in L Chandra Kumar v. Union of India (7 judge bench): they buried the
‘alternative adjudicatory mechanism’ propounded in Sampath Kumar, and sought to perform
a delicate balancing act.
1. It founded that 323A and B and the Act, in so far as they oust the writ
jurisdiction, shall be unconstitutional and struck it down to that extent. This is
because 226 is a part of the Basic Structure.
2. Power of judicial review vested in HC and SC cannot be ousted or excluded.
Tribunals can be supplements of the HC, they cannot substitute it. If a tribunal is
not functioning properly, a writ of certiorari can be filed with the HC.
3. Moreover, the framers sought to exclude judges from executive or legislative
encroachment. Since these safeguards were not available to subordinate judiciary or
tribunal members, they cannot be full and effective substitutes. Tribunals perform a
supplemental role to HCs. However, SC wished to preserve tribunal’s adjudicative
power, as it is necessary to deal with backlogs. However, Tribunals cannot oust the
jurisdiction of HCs.
4. It was also held that the jurisdiction of SC under 136 can only be invoked after
exhausting remedies with HCs- no direct appeal was allowed.
5. HCs have the power to exercise superintendence on the decisions of all courts
and tribunals within its jurisdiction (basic structure).
6. Tribunals can play a supplemental role in judicial review of legislative action. As long
as the sanctity of 32 and 226 is maintained, Tribunals can have the power to test
constitutionality of legislations.
7. Tribunals’ decisions would be subject to HC review under 226- this would ensure that
frivolous claims are filtered out, and that the HC has the benefit of a reasoned
decisions on merits.
8. Tribunals will continue to act as the only courts of 1 st decisions with respect to
the areas of law for which they have been constituted- litigants cannot approach
the HCs directly.

Sakinala was upheld by L Chandra Kumar.

323B(2) talks about a list of subject matters for which tribunals can be created. Is this list
exhaustive or inclusive? Let's take certification of films. It has not been mentioned in the list,
but can you create a tribunal for the same?

In 2002, the Companies Act was amended that created the NCLT and the NCLAT. The
justification for this was that winding up of companies was very difficult and rigorous
because there were multiple forums and acts. To simplify matters and to vest exclusive
jurisdiction for company matters, these tribunals were set up. R Gandhi, the President of the
Madras Bar Assn. challenged it in the Madras HC. In UOI v. R Gandhi, Challenged the
constitutionality of NCLAT and NCLT. Petitioners asked under what provision could this be
set up since 323B(2) did not mention company matters and this was an exhaustive list.
It was also argued that constitution of such tribunals violated separation of power and judicial
independence.
Before merits, the HC had to see if such tribunals could be created even if it was not
mentioned in the list. The HC held that it could. To do so, it resorted to the Seventh Schedule.
Entry 43, 44, 77, 78, 95 of the Union List. These entries were used to justify the setting up of
these tribunals. All these conveyed that the Parliament could create Tribunals on matters
beyond the list in 323B(2). Thus 323B is not the only provision. The criticism was that if that
were the case, why take the pain of enlisting those matters.
The court said that the creation of the NCLT was not a problem, but they did have a problem
in the manner this particular tribunal has been created. How are the members appointed,
composition, terms of service, independence, separation of powers were major concerns.
When the SC heard the matter in 2005, it listed 14 errors and asked the government to rectify
them or else they'll strike it down. This is the second time this happened. This led to a very
unique jurisprudence where the SC does not directly strike a law down, but asks the
government to make certain changes. Ravindran J delivered the judgement.
1. Tribunals perform all judicial functions of the State except what is excluded from
jurisdiction.
2. Courts are established by the State and are entrusted with the adjudicating powers.
Tribunals established under statute to adjudicate on disputes arising under the statute of a
specific nature. All tribunals are courts, not vice versa.
3. Tribunals can have combinations of judicial members and experts in a field, while courts
can only have judges.
4. Courts are governed by elaborate procedural statutes (Crpc, CPC, Evidence), while
tribunals regulate their own procedure. They are not restricted by evidence act, but may use
CPC.
5. Members of tribunals are independent persons, not civil servants (judicial independence)
6. legislature has power to create Tribunals and confer jurisdiction (specific enactments).

There was a very mixed bags of cases come in after this. Madras Bar Assn. 1, 2.

Madras Bar Assn. 1 v. UOI (2014): constitutionality of the National Tax Tribunal was
challenged. There is an element of taxation to almost everything that we do. Previously, these
cases used to go to HCs on appeal after going through different tax bodies. After this Act, the
appellate body became the National Tax Tribunal, and not the HC (goes directly against L
Chandrakumar). Bench of NTT would be present at all seats of the HC.
Kehar: it goes against separation of powers, judicial independence, and the chandrakumar
verdict. The SC struck it down saying that the HC was not being supplemented, it was being
supplanting or substituting the HC. Nariman J; a quasi judicial body cannot have greater
powers that HCs in interpreting substantial areas of law. Tribunals have fact based analysis,
and their job is not to delve into legal analysis.
A year later, in Madras Bar Assn. 2 had a fresh challenge to the Companies Tribunal because
there was a new companies act in 2013. the claim was that not all of the 14 suggestions had
been incorporated. R Gandhi suggestions were not implemented totally. Moreover, since
NTT was unconstitutional, so NCLAT and NCLT should also be made unconstitutional.
Here, the SC hesitated. Sikri J and Nariman J did not strike it down. The court said that the
suggestions that were not incorporated should be. (this case is an example of how BSD was
used wrt ordinary laws)
There are 2 major trends here. If the SC finds that there is some problem with the Tribunal,
the SC will recommend changes, and not strike it down in the first go. Second, the SC
directly strikes it down.
Madras Bar Association III- Ongoing case about Tribunal reforms Act, 2021

LEGISLATURE:

Change in Rajya Sabha election procedure- amendment to RPA 2003. Changed RS’s election
to an open ballot system to prevent horse trading. Previously the domicile system was
prevalent, where one had to have a domicile to content RS elections, but this requirement was
removed and they could be a voter from any part of India. Rajya Sabha being the council of
states, there was a requirement for the members to come from the states that they represent.
During manmohan singh’s time, though he was originally domiciled in Delhi, he got in
though Assam’s vacancy by showing backdated property in Assam. Thus, an amendment was
brought in.
Post amendment, this was removed and has been misused. Arun Jaitley lost LS elections in
2014, so he got in though RS’s vacancy in Gujarat.
DISQUALIFICATION:
Office of profit: A member of a legislature makes laws that have ramifications on the
functioning of various offices. If they themselves are part of the working of that profit, there
would be a massive conflict of interest.
The purpose behind Article 102 was to avoid a conflict between duty and interest and to
minimise the misuse of official positions to further personal interests. The Article was also
designed to ensure a degree of autonomy to MPs as it was felt that those who held positions
of authority at the pleasure of the executive were likely to be influenced by it.
Among the various conditions for eligibility to the legislature, Article 102(a) and 191(a) law
down that holding an “office of profit” under the government is a criteria for disqualification.
3 components: 1. There must be an office of profit; 2. It must be under the govt; 3. It must be
an office that is not otherwise exempted from disqualification under Parliamentary law.
There can be exceptional office that parliament creates. There's The Parliament (Prevention
of Disqualification) Act, 1959 that carves out an exception.
The fallacy is that a lawmaker's act can also have impact on private sector. And if a member
is a board of director in that company, there is another conflict. But the article only focusses
on office of profit under the government. In 1950s, when most of the jobs were under govt
control then the law was fine, but now 102(a) seems ridiculous.
The act lists out certain offices, which are random, without any justification. This becomes
problematic because there was supposed to be an amendment in 2006.

What is an office of profit?

Jaya Bachhan v. UOI: Jaya Bachchan was an MP of the RS and the chairperson of the UP
Film development corporation. The Congress moves a disqualification petition against Jaya
Bachchan for holding an office of profit. Jaya had a 2 prong strategy. She challenged the
disqualification in the SC. At the same time, she moved a disqualification petition against
Sonia Gandhi for being the chairperson of the National Advisory Council and various other
trusts which had links with the government.
In the SC, she argued on the meaning of office of profit. It should be an office that gives you
some profit. She showed through the balance sheet of the film corporation, that even though
she was entitled to benefits, she was not availing any. She said she did it out of affection for
the state of UP. She had voluntarily relinquished the profits.
The SC did not accept the argument. It said that whether you are getting profit is
immaterial. What matters is whether you are occupying an office that entitles you to a
profit. You may not need the honorarium, car and bungalow. But since the office entitles her
to these, whether she actually takes them is immaterial. This is how an office of profit should
be interpreted.
There are 2 phrases, office and profit. The former is more important. There is an office
that entitles you to certain profits.
SC held that it is more important to consider the ‘potential effect of an office’- if an office
carries with it or entitles the holder to any pecuniary gain, other than reimbursement,
then it is considered an office of profit u/ Article 102(1)(a), regardless of whether they have
relinquished the emoluments- therefore she was disqualified.

Sonia Gandhi: MP from LS and the chairperson of the National Advisory Council and
various other trusts which had links with the government. – she resigned.
When Sonia's disqualification was pending, there was a retrospective change proposed to the
1959 act that added offices (all offices that she and a few other MPs occupied). The statement
of objects said that almost 50 constituencies would be rendered vacant if this weren't done
and that would burden the exchequer. This is how a lot of MPs were saved. President Kalam
refused to sign the bill. Sent it back to the government. They resent the bill to the president.
Till date the act has not been challenged.
Parliament made an amendment to the 'Prevention of disqualification' 1959 in 2006. The
amendment says and adds all the governmental offices under 'protected offices', who would
not be disqualified. The reasoning is: the parliament figured out that there are so many offices
that are being held by MP, that if we do not do this, then all the MPs would be disqualified
and there would be a by-election and this would affect the public exchequer.

Kanta Kathuria vs Manak Chand Surana which upheld the authority of Parliament and state
legislatures to give retrospective protection to offices of profit. Parliament can act
retrospectively with respect to constitutional provisions. The apprehension of it not being a
healthy practice is not a ground for limiting the legislature’s powers.

“other than an office declared by Parliament by law not to disqualify its holder” is a misused
provision. The main aim of this provision was to let the parliament bring in those offices that
were legitimate, and based on justifiable grounds.

Pranab Mukherjee: during his presidential campaign, PA Sangma (his opponent) filed a
petition alleging that he held an office of profit as the chairman of the ISI- ISI was controlled
by the govt- so he resigned from chairmanship.
Chetan Chauhan: he was appointed to the post of the chief of NIFT- he was replaced after he
was made the Sports Minister in the UP CM Yogi Adityanath’s cabinet- he was replaced
from chairmanship pre-emptively before running for MLA.
An office under the government means- appointment, removal and remuneration comes from
the government. What is the source of remuneration, and what power comes with the position
(Gurugobinda Basu v. Shankari Prasad Ghosal)

In American jurisprudence, there is something called the doctrine of inaction where if a

private entity is discharging an important public function, it can be considered state in that
context. In India, the definition of other authorities under 12 is relevant only for part 3.
Jaya Bachchan's petition was a disqualification petition under 103. Except for anti-defection
matters, disqualifications happen by the president who has to consult of the election
commission as under Art. 103(2). EC is the ultimate decision maker. President makes
representation to the EC and the it starts investigation. President is bound by EC’s decisions.

Premchand Garg judgement: 142 cannot be used to override an already existing statutory
provision.

DEFECTION:
Defection is given under Art. 102(2).
Individual entity and ideologies cannot be divorced from party ideologies. Not voting as
directed can lead to a disqualification under para 2(1)(b) of the Tenth Schedule. When there
are coalitions, deferment is acceptable as the Constitution does not govern them.
In 1985, the 52nd amendment act was brought in to stop random defections which were
rampant. 10th schedule brought in, which gave constitutional recognition to “political parties”
and placed them on a higher pedestal than the individual. Matters as to defection and
disqualification are decided by the speaker- final and binding. One of the major concerns
regarding this amendment in 1985 was that it made the party more important than the
representatives. The constitution makers never had a party in mind, just representatives. This
amendment was triggered by the Aaya Ram Gaya Ram instance where a member changed
party membership 3 times in one day. It is to curb this menace of defections that the 10th
Schedule was introduced.
Paragraph 2(a) of the 10th schedule- anti-party activities amount to voluntary giving up of
membership. One’s activities may not be considered anti-party if the party has condoned their
actions.
JDU Case: Sharad Yadav staying back when Nitish Kumar left JDU for BJP majority, was
taken as voluntary giving up of membership.
Thus there can be 3 grounds of defection- a. voting against party whip; b. voluntarily giving
up membership c. nominated member failed to join party within 6 month/ if an independent
member ends up joining a party.

Anti-defection laws do not apply to political alliances. For example, akali dal protested
against farm bills, despite being in an alliance with the BJP. It did not amount to voluntarily
giving up of membership.

Ravi Naik v. Union of India: A speech against party line can mean "voluntary giving up of
party membership" constituting grounds for defection under Para 2(1)(a).
Para 2(b) (voting)- every party appoints a chief whip- in case a line whip is issued- all
members must support an issue and toe the official party line- if not, they can face
disqualification. 3 ways out: a. taking prior permission for not attending a session; b. if the
party condones the act prior or post-facto in 15 days; c. in case of mistake.

Jharkiholi v Yeddiyurappa
13 members of the Karnataka Legislative Assembly belonging to the Bharatiya Janata Party,
wrote identical letters to the Governor of the State indicating that they had been disillusioned
with the functioning of the Government headed by Shri B.S. Yeddyurappa and were
convinced that a situation had arisen in which the Government of the State could not be
carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa
had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in
the interest of the State and the people of Karnataka, the legislators expressed their lack of
confidence in the Government headed by Shri B.S. Yeddyurappa and withdrew their support
to the said Government. Yeddyurappa, as the leader of the BJP Legislature Party in the
Karnataka Legislative Assembly, filed an application before the Speaker praying to declare
that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of
the Tenth Schedule to the Constitution.
HELD: Justice Kabir held that this would not be anti-party activities since if someone is
withdrawing support, they are doing it against a particular person and not the party. This falls
within the scope of the internal activities of the party. In Ravi S Naik the speeches were made
against the party’s position as a whole. In Jharkiholi there was no disapproval of the party as
a whole.
In Ravi S. Naik, it was seen that there was anti-party stands that were being propagated by
you in your official stance, whereas in this case, you are saying against the CM, and not the
party. So the question is, is going against a particular person, an anti-party activity? The SC
held that it is against the Govt and not the party. Dissent against the BJP CM is not similar to
a dissent against the BJP itself.
However, this is a very flimsy argument. Since here, the SC is trying to differentiate btw the
party and the Govt. But the Govt is formed by the majority view of the party. So if the Govt
and the party have a singular view, then why is there a differentiation between the two? The
distinction between government and party is not apparent anymore.
Different standards are being applied to 2(1)(a) and (b)- under (b) if you issue a whip and
you are bound to support the government backed by the party, and any rejection of the same
would amount to defection. But under (a) there is a distinction between party and
government. One’s dissent towards their party is permissible only to the extent of them not
going against the party whip.

Kihoto Hollohan v. Zachilhu: the constitutionality of the tenth schedule was challenged. The
argument could have been a basic structure, that para 7 was violative of the basic structure.
But in this case, the court took a procedural view of things, saying that para 7 was being
struck down due to not being ratified by half the state legislatures. The majority applied
severability and struck down only para 7 as unconstitutional. Para 7 was about speaker’s
decision not being justiciable before the court. The dissent struck down the whole thing since
they felt that severability could not apply. The problem was that the majority struck it down
just on procedural grounds.
It was also argued that para 7 was unconstitutional and violated the BS. One of the concerns
was also para 6. The Speaker is a very partisan person and to impart his decision with an
element of finality is a very problematic thing.
On basic structure: found that the speaker is akin to a tribunal- if the speaker is operating in a
malafide/ biased manner, then a challenge can be made to the court.
Dissenting judges believed that it was incorrect to equate a speaker to a tribunal- as the
former is a political entity while a tribunal is a quasi-judicial entity. The speaker inevitably
has some bias. Thus, the idea of giving ultimate power to the speaker is flawed. Since Kihoto
Hollohan, the speaker’s role has been increasingly partisan.
LEGISLATIVE PRIVILEGES:

While members are in the house, if they do anything illegal, they are immunised from
criminal liability (absolute privilege). This includes any statement, any action. This was
borrowed from the British. MPs had absolute immunity for things said and done inside the
house. The house also enjoyed privileges with regards to hauling outsiders, including press. If
the speaker says that something shall not go on record, no reporter would have any recourse
to report it in any manner. 105 and 194 have references to parliamentary privileges. The
privileges shall be those available at the time of commencement of the Constitution, and at
the commencement, it used to say those privileges available to the British Parliament. These
privileges are uncodified, because the minute they are, that would be "law" under Art. 13.
These privileges also extend to certain journalists reporting parliamentary proceedings- not
an absolute privilege- they can be held accountable for reporting what has been expunged
(qualified privilege).

Search light case (MSM Sharma v. Shri Krishna Sinha ) (1959): Sharma was the editor of
the search light newspaper. He published an expunged portion of the Bihar assembly
proceedings. He felt the readers had a right to know the expunged part. He was hauled up for
breach of privilege. Sharma argued that he had the right to free speech as a citizen and a
parliamentary privilege should be subservient to a citizen’s rights under article 19(1)(a).
19(2), which is an exhaustive list, does not include legislative privilege as a ground to restrict
free speech.
The SC used the principle of harmonious construction. There is art 19, but you also have a
105 and 194 in the constitution. You harmonise the two by holding that a citizen can talk
about anything, but the minute the talk is about the proceeding of the house, the privileges of
the house shall prevail. Privileges are special features of the constitution. An individual’s
general freedom of expression cannot be extended to specific circumstances outlined in Art.
105 and 194. 19(1)(a) can be curtailed in the interest of specific circumstances like reporting
of parliamentary proceedings.
Subba Rao dissented: Privileges are a British legacy, uncodified. And unlike the British, we
have a written constitution. Therefore, fundamental rights should take precedence over
something that is uncodified and vague. 19(2) is an exhaustive list, you can’t add more to it.
Moreover, giving blanket powers to the speaker to decide what can be expunged is also
problematic as he can virtually remove anything to stifle opposition’s criticism, which in turn
would create chilling effects. This is even more troublesome since the speaker is a partisan
person.
The majority opinion here can be questionable but not bizarre.

In re: Keshav Singh (1964): this was a man from Gorakhpur. He published pamphlets about
an MLA who took bribes. The MLA got upset with this and complained to the Speaker. The
Speaker reprimanded Keshav Singh for contempt and breach of privilege and asked him to
appear before a committee of the House. Keshav Singh wrote to the speaker and said that he
did not have the money to travel to Lucknow so he could not. The speaker issued summons,
and threatened an arrest warrant. The Lucknow superintendent of prisons took him into
custody. His lawyer, Mr. Solomon filed a writ petition before a 2-judge bench of the
Allahabad HC. He would come out of prison anyways, but arresting someone for reporting
was bad for democracy. The Speaker issued arrest warrants against Solomon and the 2 judges
who granted him interim bail. Fearing that this way the whole of HC will be arrested, they
wrote to the President. The President made a reference to the SC under 142. In Re:
Presidential Reference of 1964 the SC held that arresting the lawyer and judges was a blatant
violation of separation of powers. and even for Keshav Singh, privilege would apply for
proceedings, but gagging him for reporting on the conduct of an MLA would stifle
democracy. Privilege has to be balanced with free speech. Privileges have very limited
application with regards to things happening inside the house.
Absolute privilege that the member has for their acts. Qualified privilege is what reporters
have while reporting about the house and the members. The privileges committee is a quasi-
judicial body and can issue warrants in exercise of its powers.

Narasimha Rao's case: Narasimha ran a minority government. Calculations led to the
conclusion that the government would collapse in the confidence motion. Some members had
earlier openly declared that they would be voting against the govt. However, they ended
voting for the govt and the govt survived. Investigating journalists found that monetary
exchange had changed the course of the vote. CBI wanted to institute enquiries against public
servants involved under the Prevention of Corruption Act- Parliament refused to grant
permission as they felt that the legislative privilege would give them immunity. If you need to
initiate proceedings 40 days before or 50 days after a session, you need sanction of the
speaker. The MPs accepted that they took a bribe.
This matter reached the SC, along with other allegations against Narasimha Rao in PV
Narasimha Rao v. State /CBI. (3:2) The majority said that of course the bribe givers will be
prosecuted but the law of privileges ensured that they bribe takers cannot be prosecuted
because they did something that is related to their conduct inside the house, which is voting
in the Parliament. Anandan Agarwal J dissented and said they should be prosecuted. The
majority said that the speaker could prosecute them, but if he did not, SC cannot do anything.
Raja Rampal Singh v. Hon'ble Speaker, Lok Sabha: Rampal and others were caught in a
sting operation taking cash to ask questions in the Question Hour (Cash for questions
scandal). The Speaker was petitioned. The Speaker was Somnath Chatterjee. He made sure
the tapes were doctored, asked the privileges committee for a report, and expelled the MPs
from Lok Sabha. Members were expelled not disqualified. This was challenged before the
SC. The court said that in privilege, the prerogative is with the speaker with very limited
grounds for judicial review. This will be exercised only if the speaker's decision is motivated
by mala fides, extraneous circumstances, grave injustice, etc. Otherwise, the SC will not
interfere.

EXECUTIVE:

The broad definition involves 2 categories: Political executive: the President, PM, Council of
Ministers, CMs of States
Administrative/ permanent executive: civil servants, police, different constitutional
functionaries like NITI Ayog, CAG, AG, CEC.

The President and the Governor:

we've always studies that these are just titular heads, with the PM/CM and the council of
ministers deciding things in real life. There is a controversy that these offices should be done
away with since they serve no purpose, with India being a parliamentary democracy-Ram
Jawaya Kapoor v. state of Punjab.
Although India is a parliamentary democracy, certain provisions have suggested otherwise-
Art 53 (vests executive power of government in President), 74 (unamended- did not bind the
President to the advice of the CoM) and 78 (makes PM and CoM answerable to the
President), give great importance to the President than reality. However, judicial
pronouncements have subsequently reiterated the parliamentary supremacy. Parliamentary
democracy is a part of the basic structure.
President is only a nominal figurehead who is bound by the advise of the PM and CoM- they
have very limited independent power like the pocket veto.

Ram Jawaya Kapoor v. State of Punjab

Certain changes in the education policy were made in President’s name without his
consultation- argued that consultation was mandatory. HELD: regardless of the text of the
Constitution, consultation with the President is not sine qua non- India is a parliamentary
democracy where the PM is the real sovereign head of the govt. President is a nominal de jure
head of State.

UNR Rao v. Indira Gandhi (1971): Indira Gandhi has prematurely dissolved the LS,
however she continued as the caretaker PM post the dissolution. Rao filed a petition saying if
she had resigned, why would you let her continue. The President could handle the
administration till a new government is formed. Art 53 allows him to exercise control over
offices subordinate to him. The Madras HC and the SC rejected this saying that we are a
parliamentary democracy and we need to have a PM at all times, even if it is a lame duck
PM. President does not enjoy any sovereign authority, and hence the idea of President
running the country, even for a brief period, is constitutionally untenable. As per matter of
convention, no important policy decisions are taken in this period. UNR Rao wanted to avoid
giving this power in the hands of an outgoing prime minister.

Shamsher Singh v. State of Punjab (1974): Ray CJ gave the majority opinion. In the
concurring opinion by Krishna Iyer and Bhagwari JJ, the former said that without being
exhaustive, there are three situations where the President can use his discretion. (these
decisions can be challenged on grounds of mala fide intent.
1. Choice of PM: After the election, when no party has a clear majority (like in 1996),
because in such a situation, he cannot rely on the aid and advice of the outgoing
government. Here, he can appoint anyone as the PM at his discretion.
2. Dismissal: A government has lost the confidence motion, but is not stepping down. The
President can step in and remove them.
3. Dissolution of house: A government is unable to continue anymore. No one else has a
clear majority. But the outgoing government does not want an election. It insists on
continuing as caretaker government. The President can pull the plug and say no. The
phrase is called "appeal to the people", where the President prematurely dissolves the
Lok Sabha on his own and calls for fresh elections.

42nd amendment-
Such pronouncements compounded by the 42nd amendment made the President bounds by the
aid and advise of the CoM- mere rubberstamp authority.
Art. 74 says that the President "shall" act with the aid and advice of the Council of Ministers.
This more than anything else makes us a parliamentary system and not a presidential one.
Before the 42nd amendment, Article 74(1) stated that, "there shall be a Council of Ministers
with the Prime Minister at the head to aid and advise the President in the exercise of his
functions". However, there was a slight ambiguity whether the advice of the Council of
Ministers is binding on the President. The 42nd Amendment (1976) made it explicit that the
President shall, "act in accordance with such advice".

PARDONS:

A lot of times, people assume that the President has discretion when it comes to pardons.
That is not the case. Any pardon request is sent to the Union government and Home Ministry,
and the President is bound by it. It's a governmental function. The department goes through
the file ad makes a recommendation to the President, which binds him. Presidential discretion
is a very limited space, with the Council of Ministers taking most of the decisions.

Article 72 provides that President shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence-
a) in all cases where the punishment or sentence is by a Court-martial;
b) in all cases where the punishment or sentence for an offence against any law relating
to a matter to which the executive power of the Union extends; [ Union list and concurrent
list]
c)in all cases where the sentence is a sentence of death.

In Maru Ram v. Union of India (1981) case, Supreme Court held that the pardoning power
can be exercised by the Central and the State Governments, not by the President or Governor
on their own & the advice of the appropriate Government binds the Head of the State.
President can only pardon offences under union list/ concurrent list. Governor can pardon
offences under concurrent list and state list.

Rationale behind Presidential pardon:

- President can take into account the holistic scenarios/ evidence without procedural
impediments
- Appeal to emotions
- Independent of the court’s finding- acquittal of punishment, but still guilty on record

Article 161 provides that the Governor of a State shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence
of any person convicted of any offence against any law relating to a matter to which the
executive power of the State extends.

In State v. Nalini- Sonia Gandhi had asked for pardoning nalini’s offence as she did not her
children to grow up without their father, like sonia’s children did.

Kehar Singh v. Delhi Aministration- pardoning powers of the executive will apply it’s own
prerogative, where they will do their own fact finding, apply their own considerations and
factors etc.
Politicians use this as a goldmine to get their dirty acts done by gunmen and then if they get
punished they get pardoned. Statistically, instances of granting pardons have increased.
GOVERNOR:
Unlike the president, the office of the governor is not a tenured one- Art 156- Governor holds
office during the pleasure of the president, which translates to the approval of the central
govt. It is a general trend followed in India that when the ruling party changes, the governors
in the states also change if the previous party’s allies held these posts. He is not elected by the
electoral college like the president.
74 lays down that the President shall act as per aid and advice of the union council of
ministers. 163, different from 74, clearly lays down that the governor will act as per aid and
advice, except in matters where he can exercise his discretion.
Art. 163 of the Constitution clearly demarcates the discretion of the Governor. The conflict
between the Governors and CMs stems from Art. 163. The Governor is also empowered to
exercise his discretion and send a report to the Home Ministry which can then recommend
the President to suspend the State government and impose President's Rule because the
governance of the State is not being carried on in accordance with the provisions of the
Constitution.
This discretion also has a history of misuse. There can be instances where if the State and
Centre are ruled by the same party, even though there is a clear-cut case of breakdown,
President's rule is not imposed. 2002 Gujarat and 2023 Manipur are prime examples.

Why has the Governor been given such wide discretion, that which even the President does
not have? The office of the governor is a constitutional check-point created to envisage a
stronger centre. It is a limitation to federalism. Tripathi-India believe in mythical federalism,
more power is given to governor as he acts as the puppet of the central govt. so have a strong
governor vis-à-vis state governments would be beneficial to stifle state laws that union govt
does not want. In WB a bill was passed to make CMs the VCs of universities. But governor
did not sign it.

The withdrawal of the "pleasure of the president" in matters of gubernatorial appointments

was challenged in BP Singhal v. Union of India in 2010. On what grounds was the pleasure
been revoked and the Governor is removed. The SC said that such removals are based on
mala fides. So you cannot remove a Governor just like that. A removal is valid only if there is
a prima facie case for removal and whether one of the three conditions: physical or mental
incapacity, conduct unbecoming of the Governor, or corruption are met.
The removal of the Governor is therefore subject to judicial review on malicious faith or
arbitrariness. But we can only review the material that is available on the record. If something
is not on record, the SC cannot review it. If there is no file available on a gubernatorial
candidate, there will never be anything in writing and therefore, nothing to review. This is
why Singhal is dead letter. Any aid and advice given to the President is not bound to be
disclosed. These judgements exist to serve as a reminder that the judiciary is watching. But it
is essentially a dead letter because ultimately this is a matter of administrative policy.
 The Supreme Court elaborated on the pleasure doctrine. It upheld that “no limitations
or restrictions are placed on the ‘at pleasure’ doctrine”, but that “does not dispense
with the need for a cause for withdrawal of the pleasure”.
 The Bench held that the court will presume that the President had “compelling and
valid” reasons for the removal but if a sacked Governor comes to the court, the Centre
will have to justify its decision.

After Modi govt came to power, the governors of non-BJP states were threatened to step
down. Those who did not step down were removed without much formal communication.
Here SC’s hands are tied in such situations because there is no record for them to scrutinise.
You can;t prove malafides of a removal if no reasoning is given in the first place.
The fact that there is no record and no precise reason indicate malafides?

Ordinances: Legislative power of the executive

Even if 1 house of the parliament is in session, an ordinance cannot be promulgated.
Ordinances can be promulgated as a law-making exercise by completely bypassing the
legislative process. The only difference is that a law stays until repealed, while an ordinance
lapses within 6 weeks of the first sitting of the next session of the Parliament, unless it is
ratified. 6 months is the maximum limit within which the Parliament must sit. The
Constituent assembly had discussed a 6-month sunset clause for ordinances. But this idea was
rejected. Since a special session (at least the last one was) one week, and ordinances have a 6-
week window, an ordinance does not envisage a special session. The ordinance lapses after 6
weeks. The phraseology used in the Constitution is "…shall cease to operate…" "cease to
operate" does not mean void ab initio. It means that from the date of the lapse, it ceases to
operate prospectively. Until such time it lapses, it is valid law, it has the same force as a law.
if within the time the government wants to do something really nasty (which is of course
strictly constitutional, but we know that is not enough), its effect will remain even after the
ordinance lapses, because there is a prospective lapse. Any impact beyond the lifespan of an
ordinance will remain.

The beauty of a legislative scrutiny is that it points out errors, recommends changes. This is
what an ordinance bypasses. Hence, ordinances are looked at with suspicion because the
implicit assumption is that there is something that the government seeks to hide, to evade
scrutiny on, there is something due to which the government cannot wait till the House
reconvenes.

123 deals with ordinance making powers of the President, 213 deals with the powers of the
Governor.

Amendments can also happen informally by changing the interpretation without using Art.
368. But that will not be a formal amendment. Hence, ordinances cannot be used to amend
the constitution formally because the Constitution has an Article that is exclusively dedicated
to amendments. Even the change of interpretation is not technically an amendment because
an amendment carries certain connotations.

Ideally ordinances should be promulgated only in urgent matters. However, ordinances in the
last 70 years have shown a trend where a very small percentage of them were actually in
response to some pressing situation. Eg- the food security act was promulgated right after the
parliamentary session, solely to serve political purposes, and to avoid scrutiny. No guidelines
for promulgating ordinances have ever been issued, they can be promulgated according to
govt’s whims and fancies.

AK ROY v. UOI: The National Security Ordinance was promulgated in 1980. This was a very
draconian law. AK Roy challenged it on grounds of immediacy and necessity. The court gave
some indication that it may scrutinise the immediacy. But since the ordinance had not been
ratified, the court decided to not look into the immediacy because it had become a law and
the urgency of the ordinance had become a non-issue. However, the Court did observe that
immediacy to promulgate an ordinance is subject to judicial review.

State of Orissa v. Bhupendra Kumar Bose

T Venkata Reddy v. State of Andhra Pradesh (immediacy is a legislative prerogative,
judicial review of the same is not applicable)
These 2 cases had given the theory of enduring rights. This happened because these cases
compared ordinances with temporary laws (laws with a sunset clause, but passed by
following the elaborate legislative process). What it lost sight of is the fact that a temporary
law is still law, is passed after the house has deliberated upon it.

DC Wadhwa v. State of Bihar: repromulgation of an ordinance is a fraud on the Constitution,

except in exceptional situations.

Krishna Kumar Singh v. State of Bihar: around 1989, the Bihar government decided to
nationalise 430 schools that were teaching Sanskrit. They decided to do this by means of an
ordinance. What was the hurry? Art 123 and 213 say that if the President or Governor is
satisfied that a situation exists, an ordinance can be promulgated. The connotation is that this
situation has to be one of emergency. The House met the next time, the ordinance was never
ratified. The session was over and the ordinance lapses. As soon as the session was over,
repromulgation of the ordinance happened. If it can be demonstrated that the House was so
preoccupied with the legislative business that it could not take up the ordinance, it can be
repromulgated. Repromulgation kept happening. What happened once is that the session
happened, it was over, the ordinance lapsed. This time, the ordinance was not re-
promulgated. The teachers said that now you are turning us back into private employees.
They wanted to know if they could continue enjoying the perks of government employees.
Can you do that? Just because the ordinance has lapsed, can the rights go away? This is
where the doctrine of enduring rights comes in. This is a very significant jurisprudential
question.
This case first came before a 2-judge bench. Sujata Manohar J and DP Wadhwa J.

Wadhwa J said that

 Repromulgation: all repromulgated ordinances are unconstitutional (for this he relied
on DC Wadhwa v. State of Bihar). But the original ordinance cannot be touched.
ordinance 2 to n were invalid because of repromulgation.
 On the immediacy: The judiciary cannot question the wisdom of the executive or the
necessity of the circumstance behind that ordinance since that is a policy decision.
Immediacy of the ordinance was an executive prerogative and cannot be questioned
by judiciary on account of separation of power and doctrine of political question.
 Next, the rights that have been created by virtue of the first ordinance shall outlast the
life of the ordinance because they are enduring rights. Enduring rights is used in
 cases of temporary laws- once a right is created, it persists even after the ordinance
loses force. It is not co-terminus with the status of law.
Sujata J dissented
 Repromulgation: She said ordinance 1 to n were invalid.
 Immediacy: Ordinance 1 was invalid because there was no tearing hurry or
emergency to promulgate an ordinance. Relied on SR Bommai: there is limited scope
of judicial review when it comes to examining the satisfaction of the President.
 She further said that there is nothing called enduring rights. An ordinance does not
create enduring rights. Because of its limited duration, its effect shall cease to operate
the day the ordinance has ceased to operate. Ordinances cannot be compared with
temporary legislations.

since the 2-judge was a split decision, and because it went against 2 five-judge decisions, was
referred to a 7-judge bench.

Krishna Kumar Singh v. State of Bihar: (2017) 7-judge bench

DY Chandrachud spoke for himself and 4 judges, Thakur J gave a concurring opinion, Lokur
J gave a partial dissent, disagreeing with just one point.

3 points of discussion: 1. Whether president’s decision to promulgate an ordinance is subject

to judicial review wrt necessity and immediacy; 2. What happens to rights created by
ordinance after lapse; 3. Can repromulgation be allowed? What constitutes exceptional
circumstance?

Question 1: Can repromulgation be allowed? What constitutes exceptional circumstance?

When the judges start reconsidering Wadhwa v. State of Bihar on repromulgation.
The bench considered the exception created by Bhagwati. He starts by saying that
repromulgation is constitutionally impermissible. Repromulgation is not allowed under
any circumstances. If the situation is so urgent, then the session of the parliament can be
extended to consider the ordinance. Herein he overrules Wadhwa on the point of
exceptional circumstances. The "shall" in 123 and 213 means that the ordinances should
mandatorily be tabled in the immediate next session within the stipulated time. It is
directive in nature. The business of the house does not justify repromulgation. The
ordinance would simply lapse, and there would be no remedy.
 Couple of paras later, without making any effort to overrule Wadhwa. He referred to
the fact that Wadhwa created an exception and said "be that as it may, there is no
exceptional situation in this case." Which essentially means that he is not overruling
Wadhwa.

Question 2: Whether president’s decision to promulgate an ordinance is subject to judicial

review w.r.t necessity and immediacy
Chandrachud J said we can. Before laying down the grounds for the same, he got into history.
During the emergency, 39th amendment was passed in 1975. Among other things, it added an
explanation to 123 and 213. These were that the reasons behind promulgating an ordinance
shall not be called into question by any court of law. 44th amendment repealed this
explanation. Repealing the 39th amendment implied that the previous position of law was
reinstated, according to which the necessity of passing an ordinance can be subjected to
limited to judicial review. Cases like Bommai, Maru Ram etc. have allowed for judicial
review of necessity on similar grounds.
On the grounds based on which the SC can scrutinise the reasons, the Bommai principles
would apply. If the decision is based on extraneous circumstances, are mala fide, arbitrary,
irrelevant considerations, the advice of the cabinet and its reasons can be scrutinised.

Question 3: What happens to rights created by ordinance after lapse

Chandrachud J agreed with Sujata Manohar J and said that the analogy between ordinances
and temporary legislations is fallacious. Ordinances may have the same effect as laws, but
they are not laws. They may be laws only for an article 13 scrutiny, and for that purpose only.
Even if temporary legislations have sunset clauses, they still go through multiple stages of
parliamentary scrutiny. This is not how ordinances come into being. So if the government
wants to create certain rights with a nefarious agenda in mind, an ordinance cannot create
enduring rights. Ordinances cannot be allowed to give enduring rights as they circumvent the
legislative process. He says that in certain exceptional circumstances, rights created by an
ordinance can be allowed to linger on.
If land has been taken through an ordinance and a bridge or a hospital is constructed, there is
nothing that can be done. So if there is a degree of permanence or irreversibility, the rights
can be allowed to linger on. Second is public interest. On a case-to-case basis, the SC can
decide if the rights created by certain ordinances can be allowed to linger.
BR Kapoor v. State of TN: Jayalalithaa case. She was disqualified from the assembly due to
conviction for an offence punishable by more than 2 years. Her argument was that under 164,
a non-member of a house can become a part of the cabinet for 6 months. The court struck a
distinction between a non-member of a house who is otherwise eligible for contesting an
election, and someone who is not qualified for contesting an election. In this case, she was
not qualified to stand for an election.

FEDERALISM AND CENTRE STATE RELATIONS

Federalism is a natural line of thought.
KC Wheare’s definition - a system of governance where the center and state are such that
they act in a manner which is autonomous but coordinated and harmonized
AMERICAN FEDERALISM: Vere talks about the American model of federalism where states
have citizenships, independent systems of law, flags, etc. States control most important
matters. They constitutionally autonomous units and centre only controls matters like
emergency, external affairs, defence etc. Residuary powers also lie with the states. There is
also a system of dual citizenship. The states would be independent, with the federal
government in a merely supervisory capacity. This is the kind of model of federalism that
America has and Vere says that this is what is federalism. In jurisprudence, most
constitutional ideas have been borrowed from the west (mostly America). There are other
models and answers, but every time we've needed an answer, we have turned to America.
India follows a top-down approach, instead of the American bottom-up approach. During
independence, many princely states that did not want to be part of the Union had to be
convinced or coerced in various ways. Privy purses was one of these methods. Now, if the
union was not strengthened, all these princely states and unions could secede at the first
opportunity they got, since a lot of them did not want to be here in the first place. So the
constitution makers came up with a quasi-federal model (they never called it so, but the
courts subsequently have). It's called federal but the centre clearly enjoys a superior position
compared to the states. It is a unitary state with a federal façade. We have only one
constitution (the exception of J&K is now gone). Even though certain regions have been
given territorial autonomy under 371, it is granted by the Constitution. So everything is
subservient to the Indian constitution. States can also have ceremonial songs and flags but
there is one official flag and anthem.
 With respect to Art. 1 about Indian being called a “federation of States”- the drafters
felt it to be unnecessary and called it a “union of states”.
In America, state supreme courts have the power to interpret the state constitutions, and the
state legislatures have a lot of competence, with Congress having legislative competence in
very limited matters. This is different from India, where the state list has 66 entries, the union
97, with Parliament getting primacy in case there is a clash on concurrent list matters (47).
Not just numbers, the union list matters are also more important. In USA, residuary powers
are with the States, while in India, it is with the Centre. There is also a degree of overlap,
precedence and hierarchy between them.

Article 246 talks about the three lists in the seventh schedule. Most of the times, a law is
challenged on FRs. But sometimes, the challenge is also on the grounds of legislative
competence. The three clauses of 246 have to be read in sequence. 246(1) which talks about
the union list gives parliament the exclusive law-making powers. This clause has a non-
obstante, therefore, even if some matter may be in the other lists, if it is in the union list,
parliament shall have power to the exclusion of the states.
Doctrine of plenary powers: any subject matter in a list has to be stretched to its widest
possible scope and meaning. It works in consonance with the non-obstante in article 246. The
natural impression is that there is an asymmetric federal set up skewed in favour of the union.
If you cannot find something in the union list even after stretching it, you move to the 246(2)
which is the concurrent list. For any matter here, the parliament, subject to clause 1, and the
states shall have law making powers.
Only if you cannot find something in both the lists, you move to the State list. This is because
246(3) is subject to 246(1) and (2). If you still cannot find a subject matter, it goes to the
residuary clause (entry 97 of the union list). This is how skewed things are in favour of the
centre. The legislative competence of State comes into play only when the union list and
concurrent list has been ruled out.
Thus List I is much more important than list II and III. List I overrides list II and III. And list
III overrides List II, thus placing list II at the bottom of the rung.

Parliament can make laws even on matters in the State list. Under article 249, if at any time,
the Rajya Sabha decides by 2/3rds majority that it is expedient and required in national
interest to make laws for state matters, the Rajya Sabha can authorise the Parliament to make
laws on State matters. This scheme existed then because the RS was supposed to be a true
representative of the States. Today, after Kuldip Nayar, the requirement of domicile no longer
be there, the RS can have all 255 members from Delhi. This clause can be significantly
abused. Through this mechanism, parliament can make laws on a subject, even if it squarely
falls in the state list.
As per article 250, parliament will make laws on state matters for a state if that state is under
president's rule.

252- permanent-: two or more states can, by a resolution by each house of their legislature,
surrender their legislative powers to the parliament. This could be because there is some state
matter where the impact could go beyond the state's boundaries. Let's take pollution. Health
may be a state subject and pollution has an impact on health. But because of its cross-state
impact, states may feel that parliament would be better suited to deal with that matter.
Compared to 249 and 250, these laws are permanent in nature. So you can have a situation
where half or more states (let's say all BJP ruled states) have a parliamentary law on a state
matter, and 10 percent of the states have 10 other laws (for each state) governing those matter
in those states.

253-permanent-: parliament shall have exclusive competence to make laws to implement

treaties, even if they are state matters, it does not matter. 253 is wide enough to include any
international treaty, decision, in any convention or conference. (Jaishankar's meeting with the
Bhutanese leaders and a decision taken there can give parliament powers to make laws on
matters related to that meeting). (the Lokpal act was enacted thought it fell under the State list
by using the convention against corruption act)( WTO agreement is a single entry agreement.
All of them are applicable to the State. The Parliament will be legislating and implementing.)

Even if you set aside the hierarchy of 246, residuary powers under 248, nothing in the
constitution when it comes to law making gives the indication that our system is indeed
federal.

We've gotten power after a very long time. If we break it down into federations, it will be
very difficult to collect the pieces.
73rd and 74th amendments came in the 90s. This was a time of coalition governments where
regional parties were very important.

o Cooperative but Competitive Federalism - survival of the fittest

o Asymmetric Federalism - GST Council - All rates to be decided by the GST Council - Fin
Min of the Union and all the State. Within the counsel, the Union will have a weightage of
1/3rd and the states combined have 2/3rd. Naturally, all laws will be passed by them.
o Mythical Federalism - Federalism as a myth.
o Consuming vs Producing states - bought under the same umbrella.
Kuldeep Nayar and SR Bommai- Federalism is a part of the basic structure of the
constitution, and is therefore beyond the power of amendment.

State of WB v. Union of India: the entry called "acquisitioning and requisitioning of

property" was used by the Union under UL, to acquire all coal-bearing land and properties in
India. WB had an issue with it. It said that using this, you can take private property but you
cannot acquire a piece of land that belongs to the State government because in a federation,
the State is just as much a sovereign as a Union. If the Union is allowed to take State property
on the same pedestal as private property, what is the point of even having a state government.
It said that if the Centre decides to take over the writer's building, the CM of WB would be
without an office. Should that even be allowed in a federal country?

The SC (Sinha CJ for the majority) discussed the inherent hierarchy of Art 246.
 India is not federal, it is quasi-federal. Constitution is not fully federal in character.
The States in India are not sovereign in the sense US states are. Thus, India does not
follow federal features like American federalism. All that India follows is a multi-
tiered governance system.
 In India, Kashmir and NE have a completely different arrangement from the federal
structure, due to geopolitical issues, which required for these areas to be given more
autonomy.
 India’s comparison vis-à-vis American system:
- American states have separate constitutions, and there is a larger devolution of
power to States and residuary powers are vested with the states. This is not so in
India.
- In America states are very involved in all amendments. In India union
parliament alone can alter the Indian constitution.
- A very strict wall of separation exists between centre and states in terms of
distribution of power in America. In India, even the state list matters can be
legislated by the union. Union has overriding powers in India
- Robust system of checks and balances, with a feature to resolve conflicts
between the Union and State.
In the absence of these 4 features conjunctively, a country cannot be a truly full-fledged
federation.
 Thus, India is not an absolute federation, but also not an absolute unitary unit either. It lies
somewhere in the middle.
 Therefore, the Union can acquire state property, because there is something called doctrine
of plenary powers.
 The State argued that shouldn't States be a sovereign. The SC said no, sovereignty is an
indivisible concept. In India, there can be only one sovereign and that is the Union.
Sovereignty cannot be dispersed among states.

Subba Rao J (dissenting):

  There is no epitome of a federal model. Even if American federalism is more sharply
drawn, it does not imply that it is the rigid rule and states that do not comply with it are not
federal. There is no such thing as “perfect federation”. Even features of American
federalism have received backlash.
 There are other federal countries like Canada and Australia. They are different from
American federalism, but are still considered to be federal. They cannot be compared to
America as they have different historical context.
 The unitary bias in India is due to historical necessities, but that does not make India
any less federal.
 We may not be as federal as America but American federalism is not equal to federalism
in general.
 In a constitution, notwithstanding the varying emphasis on federations or states, accept the
federal principles as its basis, it has a federal structure.
 Hence, States are sovereign. Union cannot take away state property, rendering it
irrelevant. Plenary powers have its own limitations. Use all these concepts with
restraint because that gives the assumption that Union list is all that matters.

Federalism may be part of basic structure, but whenever things become unitary, the SC
always has an excuse ready to say that we are not traditionally sovereign.

This was a case where disinvestments were challenged. The argument was that socialism has
been declared a part of the basic structure. How then could the state take an anti-socialist
policy? The SC first said that this was an ordinary law and not an amendment, therefore not
subject to a basic structure scrutiny. But when pressed further, it said that there is a difference
between Doctrinaire socialism v. Pragmatic socialism. We are pragmatic socialist, not
doctrinaire. So even though socialism is part of the Basic Structure, but disinvestments
cannot be rendered invalid.

"Mythical federalism"- PK Tripathi.

Principles of interpretation: plenary powers need to have certain limits so that federalism
does not go for a toss. So, we need harmonious interpretation. 2 methods: harmonious
construction, pith and substance.
Harmonious construction- The underlying idea behind the Principle of Harmonious
Construction is that the legislature probably didn’t intend to create contradictions in its laws.
The legislature’s intention is for every provision to have an effect. Therefore, the court should
interpret the laws in a way that removes the inconsistency and allows both provisions to
remain in force, working together harmoniously.
When these two methods of interpretation don’t work, we go for plenary power.
The hierarchy in practice:
1. harmonious construction -
2. pith and substance
3. plenary powers

University of Gujarat v. Krishna Ranganath Mudholkar: (HARMONIOUS

CONSTRUCTION) entry 25 of concurrent list talks about education, subject to 66, 67, 68 of
the Union list. This used to be entry 11 of state list before 42nd amendment [so basically
education was in the state list, but subject to union list].
11- education (state list- this was used by GU)
66 says coordination and determination of standards of education in higher learning.

Gujarat University enacted a law imposing Gujarati as the primary medium of education in
all affiliated institutions. Mudholkar challenged it saying he studied English his whole life.
He said that this is beyond the State's legislative competence due to entry 66 of the Union list
since language is definitely a matter of standard. He argued that proving a medium of
instruction is setting the standard of education. The state on the other hand argued that the
medium of instruction does not amount to setting standards under entry 66, which was
intended to apply to infrastructural elements, student teacher ratio etc.

HELD: (medium of instruction= standard of education)

 State has overstepped its legislative competence
 Entry 25 of the state list is “subject to” entries 63-66 of the union list. This implies
that entry 25 and 66 are two independent spheres with no overlap. The medium of
instruction would thereby fall under the union list.
 Using the doctrine of harmonious construction, it was held that the state law is ultra
vires
 The power to legislate in respect of medium of instruction lies with the union as
there is a direct bearing and impact upon determination of standards of higher
education.
 when you claim that you will give an exclusive medium without using any other
language - you are encroaching on the powers of the union. Reaffirmed in D.A.V
College v. State of Punjab, 1971
  The State has the power to prescribe the syllabi and courses of study in the institutions
named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it
has the power to indicate the medium in which instruction should be imparted. But the
Union Parliament has an overriding legislative power to ensure that the syllabi
and courses of study prescribed and the medium selected do not impair
standards of education or render the co-ordination of such standards either on an All
India or other basis impossible or even difficult.

Subbarao: medium of instruction falls within entry 11 of the state list. Language in no
manner affects the standard of education. The encroachment on union legislative powers
under entry 66 is merely incidental. Thus, the pith and substance of the law falls under state
list. Therefore the State has competence.

State of Rajasthan v. G Chawla: (PITH AND SUBSTANCE) Rajasthan enacted a law

prohibiting loud speakers and noise in the night. Public order and health as state subjects
were used. Chawla challenged it saying it violated the Union list, and there was a lack of
legislative competence. Entry 31 of UL talks about post and telegraph, telephones,
broadcasting and other means of broadcasting. Loud speaker is incidentally a form of
broadcasting. Hence it comes under UL.

The SC said that the law is not broadcasting oriented. It is meant to regulate health and public
order, as under Entry 6 of state list. While doing this, there is an incidental encroachment of
the Union list. The law does not so much deal with the technical and commercial aspects of
loudspeakers as it does with public order and health. The crux of the law falls under Entry 6
of the State list- the pith and substance fell within entry 6. The power to legislate in relation
to public health includes the power to regulate use of amplifiers as producers of loud noises
where usage has to be counterbalanced with comfort and nuisance of others. Therefore, the
state would have competence. Thus, there is a two-prong test: 1. Look at the crux of the law;
2. Look at the degree of encroachment.

Prafulla Kumar Mukherjee v. Bank of Commerce- (PITH AND SUBSTANCE): Bengal

Moneylenders Act was passed to regulate the conduct of moneylenders. This law was
challenged on the factum of legislative competence. Union said- the law encroached upon the
UL owing to entry 46 of the UL (Bills of exchange, cheques, promissory notes). State- it is
competent under entry 30 of state list (money-lending, money lenders, relief of agriculture
debts).
Problem was that money lenders incidentally impacted the cheques, promissory notes etc.
Held- doctrine of pith and substance was used.
- The crux of the act was ot regulate the conduct of money lenders
- While certain provisions related to promissory notes, this overlap was purely
incidental
- Promissory notes were not the subject matter
- Therefore, state of wb was competent.
Doctrine of repugnancy: [Article 254(1)]: very interesting article, made even more interesting
made by a punctuation error.
"existing law" means a pre-constitutional law.
The comma immediately after "competent to enact" is giving the impression that the article
concerns union and concurrent list matters. If you remove this comma, as many scholars have
said you should, it would only concern conflicts between state assembly and parliament laws
on the concurrent list.
It gives the impression that it talks about conflict of laws from the union and concurrent list.
It's actually supposed to be just the concurrent list.

Hoechst Pharmaceutical v. State of Bihar : 254 will be attracted only when 2 laws pertaining
to the same entry in the concurrent list are in conflict with each other. Otherwise, 246 will be
attracted. In the present case it was about two different entries to List III- 35 & 42.

PK Tripathi has a different argument. He says that the makers have added a comma for a
reason and that needs to be given importance. He says that the part after the comma deals
only with concurrent list laws and the conflict can only be between a state law and an existing
law. The part before concerns any central law with any state law, whatever the list might be.
So the part before comma deals with all kinds of repugnancies, not just concurrent list
repugnancies.

251 says that when a parliamentary law on state matters conflicts with state laws, to the
extent that the parliamentary law under 249 is valid, that would have primacy. 249 and 250
gives the parliament the power to make laws on state list matters, 251 tells you what to do
when there is a conflict between these laws and state laws. 249 and 250 deal with situations
where both parliament and state are competent to enact, but 251 is used to put parliament
over state law.

What happens when laws made by 252 and 253 face conflicts with state laws. Tripathi says
that the part before the comma in 254 takes care of the conflict. Part after the comma is about
the concurrent list. But this only talks about existing laws. What happens when a post
constitution law on concurrent list has a conflict with a state law. Tripathi says that this is
answered by 246(2).

According to Tripathi, 246 is about situations of competence, where they are competent to
enact or not. 254 deals with situations where both state and centre are competent, it is about
repugnancy. He creates a distinction between competency and repugnancy.

Article 254(2)- States legislating on a matter in list III will override any earlier central laws
(under Concurrent List), or existing laws that may be repugnant with presidential assent (in
that state). Question arises with respect to the proviso to article 254(2)- parliament can enact
any law at any time with respect to the same matter including adding to, amending or
repealing the law made by the state.
254(2): there is a parliamentary law. The state passes a law on the same matter knowing full
well that there is already a parliamentary law on the subject. The State law comes later in
time. But the governor may send it for the president's consideration and the President may
exercise his discretion and assent to it. If this assent has been given, the law would be valid
for that State. But it would be a temporary law, because the proviso says that if Parliament
subsequently enacted a law on the same matter, it can do so by adding to, varying, amending
or repealing the State law. The minute the parliament undertakes this exercise, the State law
shall cease to exist. So the window that 254(2) creates for a State law is very limited.

The article says that the laid down procedure needs to be followed if there is a repugnancy.
Whether a law is repugnant or not is normally done by the courts. But here, the State
government or the Governor is deciding whether the law is repugnant. It is putting in the
hands of the State government or the Governor what should have been in the hands of the
judiciary. A governor who holds office at the pleasure of the president and whose political
antecedents are well known has been given all these powers. A lot of times, state laws that
the Governor disagrees with can be reserved for the consideration of the President, which
might never come. A governor is taking the adjudicatory hat and say that the state law is
repugnant and hence, he is reserving it for the consideration of the President.

Zaverbhai Amaidas v. State of Bombay: Bombay state law according to which 7 years was
the punishment period (existing law). A parliamentary law, enhanced it to 3 years as the
punishment for a crime. it was an amendment to an older central law. Unclear as to whether it
affected the existing state laws. If Zaverbhai should be punished under state law or union law.
HELD: although the law was y amendment to the union law. but because the new law is
conflicting with a state law under the same matter, the state law is automatically repealed in
favour of the parliamentary law. Moreover, this parliamentary law need to specifically
mention the state law. Even if it does not, the state law will be invalid if it conflicts with a
later parliamentary law with respect to the same matter.

M Karunanidhi v. Union of India (Murtaza Fazal Ali writing for the court): it relied on
Deepchand v. State of UP (one of the cases where Subba Rao was in the majority). Both
cases said that every time there are two laws does not mean there is a conflict and the state
law needs to be struck down. It should first and foremost be tried to interpret the two laws
harmoniously. If a parliamentary law occupies 50 or 70 percent of the field, and parliament
has shown no intention to occupy the rest of the field, and you have a state law that covers the
remaining 30-50 percent of the field; both the laws can harmoniously coexist as there is no
direct conflict or repugnancy. Even though both concern the same entry of the concurrent list,
there is not necessarily a need to strike the law down.

Repugnancy may arise in the following ways:-

- Direct conflict:- There maybe inconsistency in the actual terms of the statute
as when one legislature says ‘do’ and the other says ‘don’t’. In other words,
there is a clear and direct inconsistency between the Central Act and the State
 Act, and such an inconsistency is absolutely irreconciliable or is of such a
nature as to bring the two Acts into direct collision with each other and a
situation is reached where it is impossible to obey the one without disobeying
the other.
- Occupied field:- There may not be an apparent collision or conflict between
the two provisions, yet there may be repugnancy because both cover the same
field. For ex – in Zaverbhai case, the State legislation has provided 7yrs.
punishment for a certain offence. The subsequent Central legislation fixed
3yrs. as punishment for the same offence. It was held that there was
repugnancy, and the State law, was, therefore, inoperative.
- Intended occupation:- This may happen when although there is no direct
conflict in the two provisions, nor perhaps the Act directly takes away a right
conferred by the other, yet there may be repugnancy because it may be in
conflict with the intention of the dominant law to cover the whole field.

Doctrine of territorial nexus:

245: Parliament's law applies throughout India, State laws throughout that state. No
parliamentary law will be invalid just because it has extra-territorial application. Bigamy is a
crime wherever it has been committed. This extra territorial application does not invalidate
the IPC.
245 allows the parliament to make laws for the whole or part of the territory of India or state
respectively.- for eg- AFSPA
To examine whether a law is at all valid, this doctrine has been evolved.

State of Bombay v. RMD Chamarbaughwala (1977) RMDC: It used the doctrine of

territorial nexus. A newspaper was being published in Bangalore. Its primary subscribers
were in Bombay State. It used to run a prize competition everyday. It was like a lottery, but
here, you had to solve a crossword which you would solve, cut-out and deposit at the
collection booth with some money. State of Bombay passed the Bombay Prize Competitions
Act, which placed restrictions on these activities of the newspaper. One of the arguments that
the paper took against this act is that the State lacked territorial competence to impose it on
the newspaper, which was Bangalore based. The SC said that it would look into the law and
its subject matter. They will then look at who the intended target of the law is. The maximum
commercial presence of the newspaper was in Bombay. There was therefore a territorial
nexus between Bombay and this paper. The nexus has to be real and not illusory. So long as a
nexus between the target and the law can be satisfactorily established, it does not matter that
the law is extra territorial. The law would still be applicable on the newspaper. The court will
decide, from case to case, whether there is a nexus. It would be the law making body's burden
to establish that such a nexus exists. To what extent does that taxing state have a territorial
nexus over the other party is something the court would assess.
EMERGENCY:

Scantly used, often misused provision of the Constitution, Article 355: duty of the state to
protect the states against external aggression and internal disturbance and to ensure that the
governance of those states is carried on in accordance with the Constitution. The peculiar
phrase was 'internal disturbances'. This phrase also existed in 352, which was used to impose
the infamous emergency of 1975. 352 was amended by the 44th amendment by the Janata
government and replaced by 'armed rebellion'. The threshold was increased and the message
was that emergency cannot be declared at the drop of a hat. But the phrase still remains in
Article 355. even a scuffle at a traffic signal can be an internal disturbance. Using that, the
Centre can use 355 to give directions to the State to carry out their governance as that would
'protect the state from internal disturbance.' If the state refuses to comply with these
directions, the Union can assume under 365 that the governance of the state is not being
carried in accordance with the constitution and that can be used to impose president's rule
under 356.

Sarbananda Sonowal v. Union of India (2005): throughout the 70s and 80s, there was a
big movement in Assam against illegal immigration from Bangladesh. It led to the signing of
the Assam Accords between the Union and the ASU (Assam Students' Union). IMDT (Illegal
Migrant Detention Tribunal) Act was enacted in pursuance of this. Sonowal went to the SC in
2005 and argues that the IMDT be declared unconstitutional. He claimed that it violates 355.
this was strange because unconstitutionality is normally FR violation, beyond legislative
competence, etc. Sonowal said that statistically speaking, immigration has not stopped
despite the law. Since this law has failed, the Centre has failed its duty under 355 to protect
the State from external aggression and internal disturbances. Centre asked between the two,
what is illegal immigration. Sonowal said that it would be an external aggression.
The SC agreed with all of Sonowal's points and declared the IMDT unconstitutional. The SC
took up the mantle of curbing illegal immigration, and decided to implement a SC mandated
NRC exercise. This case was the backdrop to it all. Ineffectiveness of a law has been used as
the yardstick of constitutionality. Illegal immigration has been characterised as an external
aggression. That cannot happen unless you show aggression, and an aggressor. This is the
extent to which 355 has been interpreted. 356 is focussed on a lot. But 355 is not given
enough attention. This is what 355 can do.