Consti Law Notes

Federalism
Understanding the concept:

• “foedus”
• Formal agreement or covenant
• Combining self-rule and shared rule
• linking individuals, groups, and polities in lasting but limited union
• so as to provide for the energetic pursuit of common ends
• while sustaining the integrity of each partner
• thereby fostering unity and diversity
• while checking forces of centralization and anarchy
Classification of Constitution on these lines
• Unitary or federal
• Unitary Constitution:
• the totality of the powers of the State is vested in one government
• Federal Constitution:
• divided between a government for the whole country and a number of governments for
its different regions
• India’s Federalism.-
• Quasi-federal
Prof. Wheare’s Pre-requisites of a Federal Constitution
• A sense of military insecurity and a consequent need for a common defence
• A desire to be independent of foreign power and a realisation that only through union could independence
be secured
• A hope of economic advantage from union
• Political associations of communities concerned prior to their federal union
• Geographical neighbourhood
• Similarity of political institutions
Generic Features of a Federal Constitution
• existence of two levels of government:
• a general government for the whole country, and
• two or more regional governments for different regions within that country
• distribution of competence or powers between the general and the regional governments:
• legislative, executive, judicial, and financial
• supremacy of the constitution
• neither of them can unilaterally change or breach it
• dispute resolution mechanism for determining the competence of the two governments for exercising
any power or for performing any function
(See, Singh, M.P., 2016. The federal scheme. In The Oxford Handbook of the Indian Constitution)
Development of Federalism in India
• Centralisation and unitary control were keys to hold power in colonial India
• Any efforts to decentralise power were designed to meet colonial interests- led to development
of institutions of local governance around 1882
• Gradually, with demands from national movements, elements of federalism started taking shape in India
towards the end of colonial period
Factors influencing India’s Federation
• Pre-independence colonial interests
• Partition
• Reluctance of Princely States
• Unstable Financial Situation
“The members of the Constituent Assembly were not the representatives of separate states come together, as in
the United States, to frame a constitution making them one nation. They were the members of a family who, for
the first time in possession of their own house, must find a way to live together in it.”
— Francine R Frankel in India’s Political Economy (Oxford University Press, 2005)
Structure of Indian Federalism
• Vertical division of power between Union and States
• Article 1: Name and territory of the Union-
• India, that is Bharat, shall be a Union of States…
• “…to make it explicit that India was a federation of states. The federation was an
indestructible unit and not a result of an agreement between states”
• Power to rearrange or create new states (A. 2-4)
• Parliament has the power to create new states or alter the boundaries of the existing states
• To give primacy to national unity over claims of provincial autonomy
• Distribution of legislative powers (A. 245-254)
• Territorial classification
• Subject-matter classification
• 7th Schedule- 3 lists
• Residuary Powers
• Parliament’s power to give effect to any treaty (A. 253)
• Emergency Provisions (A. 352- 356)
• Distribution of Revenue and Finances between Union and States- Fiscal Federalism.-
• Both States and Centre need independent control over financial resources to perform their
functions
• A common consensus that a strong centre will be able to regulate finances which shall be
devolved to the state of “need” basis
• Model adopted by CA:
• Majority of taxes to be collected by the Centre
• Certain basic taxes and revenue with states
• Funds to be distributed by the centre to the provinces based on their “needs”
• Finance Commission was constituted to check on centre’s power to allocate funds
• Constitutional provisions:
• Legislative Entries in 3 Lists
• Residuary powers with Centre
• Subject matter of taxation available to
• Parliament: List I – Entries 82-97
• State Legislature: List II- Entries 45-66
• Both: List III- Entry 44
• Article 246A- Provisions with respect to Goods and Services Tax
• Constitutional bodies:
• Finance Commission: A. 280
• GST Council- A. 279A
Elements of Cooperative Federalism
• the practice of relaxation of the strict principle that the Central and State legislatures should act
independent of each other and within their own respective legislative sphere
• Instruments of Cooperative Federalism
• A. 263 - Inter-State Council
• for investigation, discussion and recommendation for better coordination of relation
between the Centre and the States
• Zonal Councils set up under the State Reorganization Act, 1956
• provide institutional mechanism for centre- state and inter-state cooperation to resolve
the differences and strengthen the framework of cooperation
• A. 252- Power of Parliament to legislate for two or more States by consent and adoption of
such legislation by any other State
• Need for a uniform law
• Problem cannot be addressed at state level and legislation is needed covering several
states
• States may lack resources
Asymmetric Federalism
• Tillin, in his work on Asymmetric Federalism, brings out the essence of asymmetries in a federal polity;
he highlights the objectives of asymmetry in following words.-
• Asymmetry—the granting of differential rights to certain federal sub-units, and the recognition
thereby imparted for distinct, territorially concentrated ‘ethnic’ or ‘national’ groups—is a
common feature of federalism in pluri-ethnic or pluri-national settings. By providing some
federal sub-units with greater powers of self-governance, asymmetrical devices allow
territorially concentrated cultural groups or nationalities to achieve a degree of self-
determination within a federal set-up
• Powers differ not only between centre and state but also between states as well
• Division of territory into States and UTs
• UTs with legislature and UTs without legislature
Extracts from Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
• Para 16.-
“The important argument from the constitutional angle is based on the federal type of our Constitution
under which there is a constitutional division of powers and functions between the Union and the State. If Delhi
becomes a full-fledged State, there will be a constitutional division of sovereign, legislative and executive powers
between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State
List, Parliament will have no power on jurisdiction to make any law except in the special and emergency situations
provided for under the Constitution and to that extent the Union Executive cannot exercise executive powers or
functions. The constitutional prohibition on the exercise of powers and functions will make it virtually impossible
for the Union to discharge its special responsibilities in relation to the National Capital as well as to the nation
itself…Such control is vital in the national interest irrespective of whether the subject-matter is in the State field
or Union field. If the administration of the National Capital is divided into rigid compartments of State field and
Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments are run by
different political parties.”
• Para 224.-
“The ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say
that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative
Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in
respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of
the Delhi Legislative Assembly has been excluded under Article 239-AA(3)(a). Such an interpretation would
thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic
federalism and federal balance to prevail by giving NCT of Delhi some degree of required independence in its
functioning subject to the limitations imposed by the Constitution.”
• Special Provisions for tribal districts
• Fifth Schedule
• Applies to tribal districts outside North-eastern states (Andhra Pradesh, Chhattisgarh,
Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha,
Rajasthan, Telangana)
• Centre has the executive powers to give directions to the States as to the administration
of the Scheduled Areas
• Tribes Advisory Council
• The TAC shall advise on such matters pertaining to the welfare and the
advancement of the STs in the State as may be referred to them by the
Governor
• The Governor may, by public notification, direct that any particular Act of Parliament
or of the Legislature of the State shall or shall not apply to a SA or any part thereof
• Sixth Schedule
• for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram
• Autonomous District Councils
• Given powers of self-governance
• Can make laws with respect to allotment, occupation and use of land,
management of forests other than reserve forests and water courses
• Special provisions for certain states (A. 371-371J)
• Maharashtra, Assam, Andhra Pradesh, Gujarat, Manipur, Nagaland, Sikkim, Mizoram, Goa,
Karnataka and Arunachal Pradesh
Extracts from State of Karnataka v. Union of India, (1977) 4 SCC 608
• Para 220.-
“Strictly speaking, our Constitution is not of a federal character where separate, independent and
sovereign States could be said to have joined to form a nation as in the United States of America or as may be the
position in some other countries of the world. It is because of that reason that sometimes it has been characterised
as quasi-federal in nature. Leaving the functions of the Judiciary apart, by and large the legislative and the
executive functions of the Centre and the States have been defined and distributed, but, even so, through it all
runs an overall thread or rein in the hands of the Centre in both the fields…The residuary power in
accordance with Article 248 and Entry 97 of List I, lies with the Central Parliament. It has got a predominant hand
in respect of the matters in the Concurrent List as is apparent from Article 254. Article 249 confers power on
Parliament to legislate with respect to a matter in the State List, in the national interest. When a proclamation of
emergency is in operation as provided for in Article 250, the Parliament has got the power to legislate with
respect to any matter in the State List. Some inroad in the State legislative field by the Centre is permissible under
circumstances mentioned in Articles 252 and 253. As provided for in Article 254 in some situations, the State is
under an obligation to reserve a Bill for the consideration of the President and receive his assent before it is made
into a law.”
• Para 223.-
Some other characteristics and features of our Constitution to demonstrate the weak character of our federal
structure and the controlling hand of the Centre on States in certain matters
• The Governor of a State is appointed by the President and holds office at his pleasure…the
Governor is there, as the head of the State, the Executive and the Legislature, to report to the
Centre about the administration of the State
• …Entry 45 in List III of the Seventh Schedule empowers the Parliament to legislate on the
subject of ‘inquiries... for the purpose of any of the matters specified in List II’ also besides
List III, and List I as mentioned in Entry 94 of that List
• The constituent power of amendment of the Constitution lies with the Parliament under
Article 368 providing for concurrence by half the number of the States in certain matters
• Article 2 empowers the Parliament by law to admit into the Union, or establish, new States on
such terms and conditions as it thinks fit
• Parliament is also empowered by Article 3 to make law for the formation of new States
and alteration of areas, boundaries or names of existing States. Such is the nature of our federal
structure
Legislative Competence
Classification of Law-Making Power:
• Territorial Classification (A. 245)
• Subject-matter Classification (A. 246)
Article 245
Extent of laws made by Parliament and by the Legislatures of States
1. Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of
the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
2. No law made by Parliament shall be deemed to be invalid on the ground that it would have extra
territorial operation.
Extra-territorial operation
• Parliament’s power
• Not with state legislature
• “A legislature which passes a law having extraterritorial operation may find that what it has enacted
cannot be directly enforced, but the Act is not invalid on that account, and the courts of its country must
enforce the law with the machinery available to them”
 Viscount Simon, J., British Columbia Electric Railway Co. Ltd. v. King; MANU/PR/0103/1946
• Eg: S. 3 & 4, Indian Penal Code, 1860

Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118
• Company incorporated in the United Kingdom with the control and management of its affairs is situated
wholly in that country
• The company has no director in India
• but was partner in the firm M/s. Wallace & Co., which carries on, and has a place of business
in Bombay
• The company was entitled to:
• a share in the profits of the Bombay firm
• it can dismiss any other partner on six months' notice
• Taxed under S. 4A(c):
• “a company is resident in British India in any year if its income arising in British India in that
year exceeds its income arising without British India in that year”
• The income of the assessee-company during the accounting year was over seventeen lakhs in British
India and seven and a half lakhs without British India
• Challenge:
• Ultra vires as it involves the taxation of a non-resident in respect of income derived outside
British India
• Held:
• To derive income from a country involves the person deriving it in a territorial connection with
the country sufficient to support the validity of an exercise of the power in respect of the person
• The provision that a company will be regarded as a resident in India if its total income arising
from British India exceeds the income arising without India, ensures a real connection between
the assesse and the State
• Sufficient to fasten the tax liability on not only the income made by the company as a
partner in the firm but also on the income which accrued out of British India
• Therefore, the impugned provisions are within the legislative competence of the
Legislature
Doctrine of Territorial Nexus
• A law is not invalid as long as there is a sufficient nexus between the state and the subject matter of the
law
• The subject may not be physically located in the territory of the state but there is a connection
between the two.
• The nexus should be sufficient i.e.
• Real
• Not illusory
Poppatlal Shah v. State of Madras, AIR 1953 SC 274
• The appellant is a partner of a firm of merchants called Indo-Malayan Trading Company which has its
head office in the city of Madras
• Carries on the business of selling and purchasing groundnut oil and kirana articles
• The company receives orders in its Madras office from Calcutta merchants for supply of certain articles
• These articles are purchased in the local markets and they are despatched to Calcutta by rail or steamer
and sold in Calcutta
• Issue:
• Whether in these circumstances the sale transactions were liable to be taxed under the General
Sales Tax Act of Madras?
• Contentions in Favour of the Application of the Act (Respondent’s):
• The true test for determining the locality of the sale was not where the property in the goods
sold passed, but where the actual transaction was put through
• As the company had its
• head office in the city of Madras,
• its accounts were maintained there, and
• the goods were delivered to the common carrier in that city
• the sale must be deemed to have taken place in Madras even though the property in the goods
sold passed outside the province
• Contentions Against the Application of the Act (Appellant’s):
• The place of sale in regard to all the transactions was Calcutta, as the property in the goods sold
admittedly passed to the purchasers in that city
• Held:
• It would be quite competent to enact a legislation imposing taxes on transactions concluded
outside the province, provided that there was sufficient and a real territorial nexus between
such transactions and the taxing province
• The mere fact that the contract for sale was entered into within the Province of Madras does not
make the transaction a sale within the Province of Madras
• It was completed in another province, where the property in the goods passed
• Therefore, the assessment of sale tax on the transactions during this period is illegal and
not warranted by the provisions of the Act
State of Bombay v. R.M.D. Chamarbaughwala, AIR 1957 SC 699
• A company incorporated in the State of Mysore conducted a Prize Competition called the R. M. D. C.
Cross-words
• Through a weekly newspaper printed and published at Bangalore called “Sporting Star”
• Had a wide circulation in the State of Bombay, where
• collection depots were set up to receive entry forms and fees
• local collectors were appointed
• people were invited by advertisements in the paper to participate in the competitions in Bombay
• The Bombay Legislature passed the Bombay Lotteries and Prize Competitions Control and Tax Act,
1948 which imposed tax on the prize competitions carried on in the state
• Challenge:
• The Act in so far as it applied to such prize competitions is ultra vires
• Beyond the legislative competence of the State Legislature
• Issue:
• Whether the organiser, who was outside the State of Bombay, could be validly taxed under the
Act?
• Held:
• The doctrine of territorial nexus could apply when
• the territorial connection between the persons sought to be taxed and the legislating
State was real and not illusory
• the liability sought to be imposed was pertinent to that connection
• The existence of sufficient territorial nexus is essentially a question of fact
• Thus,
• All the major activities with respect to the competition were carried on in the State of
Bombay
• Sufficient nexus for Bombay Legislature to tax the respondents who were located
outside the State
State of Bihar v. Charusila Dasi, AIR 1959 SC 1002
• The Bihar Hindu Religious Trusts Act, 1950 empowered the state to collect tax on public religious
trusts
• Item 28 of the Concurrent List:
• “charities and charitable institutions, charitable and religious endowments and
religious institutions”
• Preamble to the Act:
• “Whereas it is expedient to provide for the better administration of Hindu religious trusts in the
State of Bihar and for the protection and preservation of properties appertaining to such trusts”
• Application of Act- S.3:
• This Act shall apply to all religious trusts, whether created before or after the commencement
of this Act, any part of the property of which is situated in the State of Bihar
• Issue:
• Does the Act apply by reason of s. 3 thereof to trust properties which are situated outside the
State of Bihar?
• Held:
• Aim of the Act is to provide for the better administration of Hindu religious trusts in the State
of Bihar and for the protection of properties appertaining thereto
• this aim is sought to be achieved by exercising control over the trustees in
personam
• General principle:
• If the religious endowment is itself situated in Bihar and the trustees function there,
the connection between the religious institution and the property appertaining thereto
is real and not illusory
• The religious institution and the property appertaining thereto form one integrated whole and
one cannot be dissociated from the other
• Any liability imposed on the trustees must affect the trust property
• Thus, Bihar Legislature had power to legislate with respect to charitable and religious
trusts situated in its territory even though some of the trust property is situated in another
state
Karulkar v. State of Gujarat, (1994) 5 SCC 459
• State of Gujarat passed the Gujarat Agricultural Lands Ceiling Act, 1960
• To put a restriction upon holding agricultural land in excess of the ceiling with the purpose of
securing the distribution of agricultural lands as best to subserve the common good for
distribution amongst the landless farmers
• Section 6 (3A) provided:
• for computing the ceiling area of a person who also owns land in another part of India outside
the State of Gujarat, his holding in another part of India has also to be taken into account
• Analysis of S. 6 (3A)
• Holding agricultural land outside the State of Gujarat is considered as a relevant factor for
deciding whether
• a person can hold agricultural land in the State of Gujarat and
• If so, to what extent
• The appellants are the owners of agricultural lands in the State of Gujarat
• They also hold agricultural land in another part of India outside the State of Gujarat
• Challenge:
• Section 6 (3A) of the Act has extra-territorial operation
• The land owned by a person outside the State of Gujarat is taken into consideration while
determining the ceiling area of a land-owner in the State of Gujarat
• Held:
• The sine qua non for the application of the provisions of the Act is the holding of the land within
the State of Gujarat
• It is the land and the persons holding such land within the territory of Gujarat to which
the provisions of the Act are applicable
• If a person has no land within the State of Gujarat, the provisions of the Act are not
applicable to him or to the land which he owns outside the territory of the State of Gujarat
• The factum of a person holding land outside the State of Gujarat is undoubtedly an aspect
pertinent to the question of his entitlement under the Act to hold land in State of Gujarat
• Mere consideration of some factors which exist outside the State, for the purpose of legislating
in respect of the subject for which the legislature is competent to make law, would not amount
to extra territorial legislation
• Therefore,
• when a statute fixes a ceiling on agricultural land holding within the State, it would not become
extra territorial simply because it provides that while determining the permissible area of a
person under the said Statute the land owned by him outside the State is to be taken into
consideration
• The territorial connection is thus, real and sufficient and the liability sought to be imposed
under Section 6(3A) of the Act is directly in relation to that connection.
Article 246
• Subject matter of laws made by Parliament and by the Legislatures of States:
1. Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the "Union List").
2. Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature
of any State also, have power to make laws with respect to any of the matters enumerated in
List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List")
3. Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws
for such State or any part thereof with respect to any of the matters enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the “State List”)
4. Parliament has power to make laws with respect to any matter for any part of the territory of
India not included [in a State] notwithstanding that such matter is a matter enumerated in the
State List
Article 248
• Residuary powers of legislation. -
1. Subject to article 246A, Parliament has exclusive power to make any law with respect to
any matter not enumerated in the Concurrent List or State List
2. Such power shall include the power of making any law imposing a tax not mentioned in either
of those Lists.
• Read with Entry 97, List I
Doctrine of Pith and Substance
• Not possible to make clear cut distinctions between the legislative powers of the union and the states
• Over-lapping and clashes are possible
• Applied when a law is challenged for being out of the legislative competence of a Legislature as it touches
upon a subject matter in another list
• “true nature and character”
• Regard has to given to:
• Enactment as a whole
• Objectives of the Enactment
• Scope and effect of its provisions
• Extent of invasion
Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60
• Bengal Legislature passed Bengal Money Lenders Act, 1940
• For regulating the lending activity in the state
• Under E. 27, L. II (Now E. 30, L. II)
• “Money-lending and money lenders; relief to agricultural indebtedness”
• Challenged for being ultra vires
• Beyond legislative competence of Bengal Legislature
• Affected the right of holders of promissory notes to recover amount due on their promissory
notes
• Under E. 28, L. I (Now E. 46, L. I)
• “Bills of Exchange, cheques, promissory notes and other like instruments”
• Held:
• A legislature will not in real sense be able to legislate on money lending if promissory notes are
kept out of the purview
• The pith and substance of the Act fell with E. 27, L. II for it was essentially an Act to regulate
money-lending
• It incidentally entrenched upon the matters reserved for Federal Legislature i.e. promissory
notes
• “…the Provincial Legislature is not ousted by the inclusion of provisions dealing with
promissory notes though that subject-matter is to be found in item 28 of the Federal List. The
reference to Bills of Exchange and promissory notes in that item, they held, only applies to those
matters in their aspect of negotiability and not in their contractual aspect.”
• Thus, the Act was held valid even though it incidentally affected a Central Subject
State of Rajasthan v. G. Chawala, AIR 1959 SC 544
• Ajmer (Sound Amplifiers Control) Act, 1952
• Restricting and regulating the use of sound amplifiers
• Relevant Entries:
• E. 6, L- II:
• Public health and sanitation; hospitals and dispensaries
• E. 31, L-I:
• Posts and telegraphs; telephones, wireless, broadcasting and other like forms of
communication
• Held:
• Impugned legislation in pith and substance fell within LII
• “The pith and substance of the impugned Act is the control of the use of amplifiers in the
interests of health and also tranquility, and thus falls substantially (if not wholly) within the
powers conferred to preserve, regulate and promote them and does not so fall within the Entry
in the Union List, even though the amplifier, the use of which is regulated and controlled is
an apparatus for broadcasting or communication”
• Thus, the legislation in its pith and substance being on a state matter is not invalid even
though it incidentally encroaches upon the subject of broadcasting and communication
under union list
Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019
• Bihar Finance Act, 1981 provides for
• levy of a surcharge in addition to the tax payable, on every dealer whose gross turnover during
a year exceeds Rs. 5 lakhs and, thereof prohibits such a dealer from collecting amount of
surcharge payable by him from the purchaser
• The appellants were engaged in the manufacture and sale of the medicines throughout India, whose
branches and sales depots were registered in Bihar
• Medicines and drugs sold by them were covered by the Drugs (Price Control) Order, 1919 issued
under sub-s. (l) of s. 3 of the Essential Commodities Act
• Prohibited from selling those medicines and drugs in excess of the controlled price fixed by the
Central Government from time to time which allows the manufacturer or producer to pass
on the tax liability to the consumer
• E. 54, L-II
• Taxes on the sale or purchase of goods other than newspapers, subject to the provisions
of entry 92A of List I
• 92A, L- I: Taxes on the sale or purchase of goods other than newspapers,
where such sale or purchase takes place in the course of inter-State trade or
commerce
• E. 33, L-III
• Trade and commerce in, and the production, supply and distribution of,—
• the products of any industry where the control of such industry by the Union
is declared by Parliament by law to be expedient in the public interest, and
imported goods of the same kind as such products…
• The appellants challenged the constitutional validity of Bihar Finance Act, 1981
• Contentions:
• S. 5 (3) of the Act, which is a State law u/e 54, L- II, is void in terms of the opening words of
A. 246(3) of the Constitution
• In direct conflict with paragraph 21 of the Drugs (Price Control) Order, 1979, issued u/s 3(1) of
the Essential Commodities Act, 1955 which is a Union Law u/e- 33, List III
• Held:
• Competence of the State Legislature
• It cannot be doubted that the surcharge levied was within the competence of the State
Legislature
• Empowered to enact s. 5(3) of the Bihar Act for the purpose of levying
surcharge on certain class of dealers in addition to the tax payable by them
• When the State Legislature had competence to levy tax on sale or purchase of goods
under Entry 54 of List II, it was equally competent to select the class of dealers on
whom the charge would fall
• The power of the State Legislature to make a law with respect to the levy and imposition of a
tax on sale or purchase of goods u/e 54, L. II and to make ancillary provisions in that behalf is
• plenary and
• not subject to the power of Parliament to make a law under Entry 33 of List III
• There is no warrant for projecting the power of Parliament to make a law
under Entry 33 of List III into the State’s power of taxation under Entry 54 of
List II
• Otherwise, Entry 54 of List II will have to be read as: "Taxes on sale or
purchase of goods other than the essential commodities, etc."
• Repugnancy?
• The element of tax does not directly flow from the power to regulate trade or
commerce
• The production, supply and distribution of essential commodities is under Entry 33 of
List III, although the liability to pay tax may be a matter incidental to the Centre's
power of price control
• The two laws viz., S. 5 (3) of the Bihar Act and para 21 of the Drugs (Price Control)
Order issued u/s. 3(1) of the Essential Commodities Act
• operate on two separate and distinct fields
• both are capable of being obeyed
• There is no question of any clash between them
• Principle:
• The constitutionality of the law has to be judged by its real subject matter and not by
its incidental effect upon any topic of legislation in another field
• Once it is found that in pith and substance the impugned Act is a law on a
permitted field, any incidental encroachment on a forbidden field does not affect
the competence of the legislature to enact that Act
• Therefore, Entry 54 of List II is a tax entry and thus, there is no question of repugnancy
between s. 5(3) of the Act and paragraph 21 of the Control order
Governor-General in Council v. Province of Madras, AIR 1945 PC 98
• Madras General Sales Tax Act, 1939:
• “An Act to provide for the levy of a general tax on the sale of goods in the Province of Madras.”
• Levied a tax on first sales in Madras on goods manufactured or produced in India
• Entry 48, L II:
• Taxes on the sale of goods and on advertisements
• Entry 45, L I (Now E. 84, L I):
• Duties of excise on Tobacco and other goods manufactured or produced in India…
• Appellant’s Contention against the Act:
• So far as those provisions purport to impose a tax on first sales they in effect impose a duty of
excise and are therefore an encroachment upon the power given exclusively to the Federal
Legislature by Entry No. 45 of the Federal Legislative List
• Respondent’s Contention in favour of the Act:
• Entry No. 48 of the Provincial Legislative List authorises and justifies the impugned provisions
of the Madras Act
• Held:
• The contention of the appellant involves doing violence to the language of Entry No. 48 of the
Provincial Legislative List
• If this contention is upheld, the plain words “Taxes on the sale of goods” must be
read as if the words “other than the first sale of goods manufactured or produced
in India”
• A duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the
commodity manufactured or produced
• It is a tax upon goods not upon sales or the proceeds of sale of goods
• The two taxes, the one levied upon a manufacturer in respect of his goods, the other upon a
vendor in respect of his sales, may in one sense overlap
• But in law there is no overlapping as the taxes are separate and distinct imports
• If in fact they overlap, that may be because the taxing authority, imposing a duty of
excise, finds it convenient to impose that duty at the moment when the exercisable
article leaves the factory or workshop for the first time upon the occasion of its sale
• Therefore,
• Competing Entries No. 45 of the Federal List and No. 48 of the Provincial List
may fairly be reconciled without adopting the contention of the appellant, and
that the validity of the Madras Act cannot successfully be challenged
• Emphasis on substance of the tax, not form
• The tax imposed by the Madras Act is not a duty of excise in the cloak of a tax on
sales
State of Bombay v. F.N. Balsara, AIR 1951 SC 318
• Bombay Prohibition Act, 1949
• Restricted the possession and sale of foreign liquors
• E. 31, L. II (Now, E. 8, L II)
• Intoxicating liquors, that is to say, the production, manufacture, possession, transport,
purchase and sale of intoxicating liquors
• E. 19, L I (Now, E. 41, L I)
• Trade and commerce with foreign countries; import and export across customs
frontiers; definition of customs frontiers
• Challenge:
• The Act had capacity to effect import and exports across custom frontiers
• Prohibition on sale, purchase, use, transports of liquor will affect import and exports
• Held:
• The words “possession and sale” in E. 31 of List II must be read without any qualification
• The word “import” in E. 19 of List I standing by itself will not include either sale or possession of
the article imported into the country
• There was, thus, no conflict between E. 31, L. II and E. 19, L. I
• The Act, in so far as it purported to restrict the possession and sale of foreign liquors,
did not encroach upon the field of the Dominion Legislature
• Even assuming that the prohibition of purchase, use, possession, transport and sale of liquor will
affect its import, the Act was in “pith and substance” an Act falling within entry 31 of List II
• The fact that the law incidentally encroached upon the powers of the Dominion
Legislature under E. 19 of List I would not affect its validity
Doctrine of Harmonious Construction
• Some of the entries in the different lists may overlap or may appear to be in direct conflict with each
other
• Here, principle of the supremacy of union list should not be applied mechanically
• The courts should attempt to construe the entries so as to reconcile the conflict in the overlapping entries
• To harmonise and reconcile the entries in the list, it may be necessary to read and interpret the necessary
entries together
• To restrict the ambit of a broader entry to give way to a narrower entry
• Only when the reconciliation proves impossible, then the non-obstante clause u/a. 246 should be invoked
which gives primacy to central legislation
Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044
• On July 24, 1948, under an agreement entered into between the Oriental Gas Company, and the Calcutta
Gas Company, the latter was appointed the manager of the former Company for a period of 20 years
• The Oriental Gas Company is the owner of the industrial undertaking, for the production,
manufacture, supply, distribution and sale of fuel gas
• The West Bengal Legislature passed Oriental Gas Company Act, 1960
• Wherein the State Government would take over, for a period of five years, the management and
control of the undertaking of the Oriental Gas Company
• Contention of Appellants against the State law:
• Parliament had passed the Industries (Development and Regulation) Act, 1951, by virtue of
E. 52 of List I
• Entry 52, L I:
• Industries, the control of which by the Union is declared by Parliament by
law to be expedient in the public interest
• The two entries in List II, namely, entries 24 and 25, cannot sustain the Act
• Entry 24, L II:
• Industries subject to the provisions of entries 7 and 52 of List I
• E. 7, L I:
• Industries declared by Parliament by law to be necessary
for the purpose of defence or for the prosecution of war
• Entry 25, L II:
• Gas and gas-works
• E. 24, L. II is subject to the provisions of E. 52 of L. I; and E. 25, L.II must be confined to
matters other than those covered by E. 24
• Assuming that the State Legislature has power to pass the Act by virtue of E. 25, L. II, u/a.
254(1), the law made by Parliament shall prevail
• Therefore, the West Bengal Legislature is not Competent to make a law regulating the gas
industry
• Contentions of Respondents in favour of the State law:
• Impugned Act is valid not only under E. 25 of List II but also u/e. 33 and 42 of List III
• Entry 33, List III:
• Trade and commerce
• Entry 42, List III:
• Acquisition and requisitioning of property
• Issue:
• The impugned Act intends to serve the same purpose and occupies the field as the Central Act,
though its operation is confined to the Oriental Gas Company
• Both the Acts are conceived to increase the production, quality and supply pertaining to an
industry, and for that purpose to enable the appropriate Government, if necessary, to take over
the management for regulating the industry concerned to achieve the said purposes
• The question is whether the State Legislature has constitutional competency to encroach upon
the said field?
• Held:
• Industry is in the field of State legislation;
• except if Parliament by law makes a relevant declaration, the industry so declared
would be taken off its field and passed on to Parliament
• There is, therefore, an apparent conflict between the two entries and they overlap each other
• In such a contingency, the doctrine of harmonious construction must be invoked
• The express intention of the Constitution is to treat the industry of gas and gas works as a state
subject
• as otherwise if a declaration by law was made by Parliament within the meaning of E.
7 or E. 52 of List I, it would be taken out of the legislative power of States
• The argument that u/a. 246, the legislative power of State is subject to that of Parliament fails,
for the gas industry is outside the legislative field of Parliament and is within the exclusive field
of the Legislature of the State
• Therefore,
• State has the exclusive power to make law in respect of gas industry by virtue of E. 25
of List II, and that E. 24 does not comprehend gas industry
• The Central Act, in so far as it purported to deal with the gas industry, is beyond the
legislative competence of Parliament
• The impugned Act was within the legislative competence of the West Bengal
Legislature
ITC Ltd. v. Agricultural Produce Market Committee, AIR 2002 SC 852
• Bihar Agricultural Produce Markets Act, 1960
• An order of assessment was passed by the Agricultural Produce Market Committee for
collection of fee on the purchase of unprocessed tobacco leaves from the growers u/e. 28 r/w e.
66 of L. II
• Entry 28, List II:
• Markets and fairs
• Fees in respect of any of the matters in this List, but not including fees taken in any
court
• The Act was challenged as ultra vires for want of legislative competence
• Tobacco Board Act, 1975 u/e. 52, L. I
• Entry 52, List I:
• Industries, the control of which by the Union is declared by Parliament by law to be
expedient in the public interest
• Held:
• It is no doubt true as a matter of principle of construction that in the event there are two
competing legislations, one by the Parliament and one by the State, the Court would make an
endeavour if both the legislations could be allowed to operate
• On examining the provisions of the two Acts, it is found that the Central Legislation and the
State legislation come in collision with each other
• The word “industry” u/e. 52, L. I will include “production and manufacturing” and not pre-
manufacture activity
• The activity regarding sale of raw tobacco leaves as provided in the Tobacco Board Act cannot
be regarded as “industry”
• Raw materials for an industry will not fall within E. 52, L. I
• State legislature is, therefore, competent to levy market fee on sale of tobacco leaves in a
market area
Repugnancy Clause
• Article 254- Inconsistency between laws made by Parliament and laws made by the Legislatures of
States.-
1. If any provision of a law made by the Legislature of a State is repugnant to any provision of a
law made by Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent List, then,
subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before
or after the law made by the Legislature of such State, or, as the case may be, the existing
law, shall prevail and the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void
2. Where a law made by the Legislature of a State with respect to one of the matters enumerated
in the Concurrent List contains any provision repugnant to the provisions of an earlier law
made by Parliament or an existing law with respect to that matter, then, the law so made
by the Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the
State
State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375
• Facts:
• Kerala Chitties Act, 1975
• Many of the private chitty firms remained out of the regulatory mechanism by
registering themselves outside the State but continued to operate in Kerala
• Consequently, Section 4 of the Act was amended vide Finance Act, 2002
• Brought in chitties registered outside the State having 20% or more of its subscribers
normally residing in the State within the ambit the Act
• Central Chit Funds Act, 1982
• The Act required a notification to be issued by the Central Government for
commencement of the Act
• Being aggrieved by the said Amendment, the private chitty firms challenged the vires of Section
4(1a) of the 1975 Act as repugnant under A. 254(1)
• Issue:
• Whether the Kerala Chitties Act, 1975 became repugnant to the Central Chit Funds Act, 1982
under Article 254(1) upon making of the Central Chit Funds Act, 1982 (i.e. on 19.08.1982
when the President gave his assent) or
• Whether the Kerala Chitties Act, 1975 would become repugnant to the Central Chit Funds
Act, 1982 as and when notification under the Central Chit Funds Act, 1982 bringing the Central
Act into force in the State of Kerala is issued?
• Argument in favour of State Law:
• A. 254 presupposes that both laws should actually be in operation
• The word “made” in A. 254 is relevant only to identify the law, i.e., the Parliamentary law or
the State law
• Nothing to do with the point of time for determination of repugnance
• The very object of determination of repugnance between two laws is to decide and declare as to
which one of the two laws has to be obeyed
• The petition is premature as repugnancy cannot arise when the Parliamentary law has
not even been brought in force
• Arguments against State Law
• The bringing into force or commencement of the Central Act was irrelevant in considering
repugnancy under A. 254(1)
• The repugnancy arose when the State law came into conflict with the enactment of the Central
law, even when the Central law is not brought into force in the State of Kerala
• The words “law made” have reference to the enactment of the law
• There is no mention to the commencement of a law in A. 254
• Repugnancy arose when the Central Chit Funds Act, 1982 received the assent of the President
and not on its commencement, which till date is not there in the State of Kerala
• Both the legislations are made under E. 7 of the Concurrent List and, the Central Act, 1982
intended to occupy the entire field
• When the State of Kerala intended to amend the State Act in 2002, it was bound to keep in mind
the fact that there is already a Central law governing chits since 19.08.1982
• State Legislature ought to have followed the procedure in A. 254(2) by reserving the
law for the consideration of the President and obtained Presidential assent
• Held:
• On 19.08.1982, the Parliament in enacting the Central law has manifested its intention not only
to override the existing State Laws, but to occupy the entire field relating to Chits
• Consequently, the State Legislature was divested of its legislative power to enact Section
4(1a) vide Finance Act, 2002
• save and except under A. 254(2) of the Constitution
• The entire discussion on Articles 245, 246, 250, 251 is only to indicate that the word “made”
has to be read in the context of law-making process and, if so read, it is clear that to test
repugnancy one has to go by the making of law and not by its commencement
• The Kerala Chitties Act, 1975 became void on the making of the Chit Funds Act, 1982 on
19.08.1982
• Thus, repugnancy arises on the making and not commencement of the Central Chit Funds
Act, 1982
Power of the Parliament to legislate with respect to a matter in State List
Articles 249, 250, 251 and 252
Power of the Parliament to legislate

with respect to a matter in State List
A. 249 A. 250 A. 252
If a Proclamation
In National For two or more
of Emergency is in
Interest States by Consent
Operation
Adoption of such
legislation by any
other state
Article 249
• Power of Parliament to legislate with respect to a matter in the State List in the national interest.-
1. Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States
has declared by resolution supported by not less than two thirds of the members present
and voting that it is necessary or expedient in national interest that Parliament should make
laws with respect to any matter enumerated in the State List specified in the resolution, it shall
be lawful for Parliament to make laws for the whole or any part of the territory of India with
respect to that matter while the resolution remains in force
2. A resolution passed under clause ( 1 ) shall remain in force for such period not exceeding one
year as may be specified therein:
Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed
in the manner provided in clause ( 1 ), such resolution shall continue in force for a further period of one year from
the date on which under this clause it would otherwise have ceased to be in force
1. A law made by Parliament which Parliament would not but for the passing of a resolution under
clause ( 1 ) have been competent to make shall, to the extent of the incompetency, cease to
have effect on the expiration of a period of six months after the resolution has ceased to be
in force, except as respects things done or omitted to be done before the expiration of the said
period
Article 250
• Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of
Emergency is in operation.-
1. Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of
Emergency is in operation, have, power to make laws for the whole or any part of the territory
of India with respect to any of the matters enumerated in the State List
2. A law made by Parliament which Parliament would not but for the issue of a Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency, cease to
have effect on the expiration of a period of six months after the Proclamation has ceased
to operate, except as respects things done or omitted to be done before the expiration of the
said period
Article 251
• Inconsistency between laws made by Parliament under Articles 249 and 250 and laws made by the
Legislatures of States.-
• Nothing in Articles 249 and 250 shall restrict the power of the Legislature of a State to make
any law which under this Constitution it has power to make, but if any provision of a law made
by the legislature of a State is repugnant to any provision of a law made by Parliament which
Parliament has under either of the said articles power to make, the law made by Parliament,
whether passed before or after the law made by the legislature of the State, shall prevail, and
the law made by the Legislature of the State shall to the extent of the repugnancy, but so long
only as the law made by Parliament continues to have effect, be inoperative
Article 252
• Power of Parliament to legislate for two or more States by consent and adoption of such legislation
by any other State.-
1. If it appears to the Legislatures of two or more States to be desirable that any of the matters
with respect to which Parliament has no power to make laws for the States except as provided
in Articles 249 and 250 should be regulated in such States by Parliament by law, and if
resolutions to that effect are passed by all the House of the Legislatures of those States, it
shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act
so passed shall apply to such States and to any other State by which it is adopted afterwards
by resolution passed in that behalf by the House or, where there are two Houses, by each
of the Houses of the Legislature of that State
2. Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed
or adopted in like manner but shall not, as respects any State to which it applies, be amended
or repealed by an Act of the Legislature of that State
Residuary Clause
Union of India v. H.S. Dhillon, AIR 1972 SC 1061
• Central Law- Wealth Tax Act, 1957
• Amended by Finance Act, 1969
• to include the capital value of agricultural land for the purposes of computing net
wealth
• Entry 86, List I:
• Taxes on the capital value of the assets, exclusive of agricultural land, of individuals
and companies; taxes on the capital of companies
• Taxes on lands and buildings
• Issues:
• Is the impugned Act legislation with respect to entry 49 List II?
• If it is not, is it beyond the legislative competence of Parliament?
• Argument in favour of the Act of 1969:
• Act must necessarily fall within the legislative competence of Parliament u/e. 86. read with E.
97 or E. 97 by itself read with A. 248
• The words "exclusive of agricultural land" in E. 86 could not cut down the scope of either E. 97
L. I or A. 248
• Proper way of testing the validity of a parliamentary statute under the Constitution is to first see
whether the parliamentary legislation is with respect to a matter or tax mentioned in List II; if it
was not, no other question would arise
• Cannot be supported by any entry (including E. 49) of List II
• Arguments against the Act of 1969:
• Scheme of the Constitution gives States the exclusive powers to legislate in respect of
agricultural land, income on agricultural land and taxes thereon
• The object and effect of specifically excluding agricultural land from the scope of E. 86 L. I
was also to take it out of the ambit of E. 97 L. I and A. 248
• Analysing certain other exclusionary entries of L. I:
• E. 82 - taxes on agricultural income have been excluded from the ambit of "taxes on income”
• E. 46 LII
• E. 84 - duties of excise have been excluded on alcoholic liquors for human consumption and on
opium, Indian hemp and other narcotic drugs and narcotics
• E. 51, L. II
• E. 87 - agricultural land has been excluded from the Union Estate duty in respect of property
• E. 48, L. II
• E. 88 - agricultural land has been excluded from the incidence of duties in respect of succession
to property
• E. 47 L II
• E. 86 - agricultural land has been excluded from the field of taxes on the capital value of the
assets
• All the matters and taxes which have been excluded fall specifically within one of the
entries in List II
• except taxes on the capital value of agricultural land u/e. 86 L. I
• What is the extent of Residuary Power of the Parliament?
• Point for determination:
• Is the matter sought to be legislated on included in List II or in List III ? -- No question
has to be asked about List I
• If the answer is in the negative, then it follows that Parliament has power to make laws
with respect to that matter
• Analysing E. 86 L I:
• “Capital value of assets” only means the market value of the assets less any encumbrances
charged thereon
• The expression does not take in either the general liabilities of the individual owning them or in
particular the debts owed in respect of them
• The subject matter of legislation by Wealth Tax Act, including or excluding agricultural
lands, is not covered by E. 86 but by E. 97 of L. I
• “This Court has never held that the original Wealth Tax Act fell under entry 86 List I. It was
only assumed that the original Wealth Tax Act fell within entry 86 List I and on that assumption
this entry was analysed and contrasted with entry 49 List II.”
Kartar Singh v. State of Punjab, (1994) 3 SCC 569
• Terrorist and Disruptive Activities (Prevention) Act, 1987
• Challenged for being ultra vires since the Central Legislature lacked the legislative competence u/a. 246
• Contentions of Appellants against the Act:
• The subject-matter of the impugned Act is within the legislative field assigned to the States
under Entry I of List II; namely, ‘Public Order’
• Along with E. 64, L. II
• Offences against laws with respect to any of the matters in this List
• Parliament relied on Entry 1 of List III for the competency to enact the TADA Act
• "Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offenses against laws with respect
to any of the matters specified in List I or List II and excluding the use of naval, military
or air forces or any other armed forces of the Union in aid of the civil power.”
• “Pith and substance” relates to “Public order” as reflected from its preamble
• An Act to make special provisions for the prevention of and for coping with terrorist
and disruptive activities and for matters connected therewith or incidental thereto
• Contentions of Respondents in favour of the Act:
• The Act is not related to “Public order” falling under Entry 1 of List II
• Relates to Entries 1, 2 and 2-A of List I read with Entries 1 and 2 of List III
• List I:
1. Defence of India and every part thereof including preparation for defence and
all such acts as may be conducive in times of war to its prosecution and after
its termination to effective demobilisation
2. Naval, military and air forces; any other armed forces of the Union
2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any
contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of
the members of such forces while on such deployment
• List III:
1. Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offences against laws with
respect to any of the matters specified in List I or List II and excluding the
use of naval, military or air forces or any other armed forces of the Union in
aid of the civil power
2. Criminal procedure, including all matters included in the Code of Criminal
Procedure at the commencement of this Constitution
• Held:
• In order to ascertain the pith and substance of the impugned enactment,
• the preamble,
• Statement of Objects and Reasons,
• the legal significance and
• the intendment of the provisions of the Act,
• their scope and
• the nexus with the object that the Act seeks to subserve must be objectively examined
• Terrorism cannot be classified as mere disturbance of 'public order’ but rather a grave emergent
situation created by external forces particularly at the frontiers of the country threating the
sovereignty of the country
• Therefore, the impugned legislation
• does not fall under Entry 1 of List II, namely, “Public order”
• falls within the legislative competence of Parliament in view of Article 248 read
with Entry 97 of List I
1. Not necessary to consider whether it falls under any of the entries in List I or
List III
2. However, the court was of the opinion that the impugned Act could fall within
the ambit of Entry 1 of List I, namely, 'Defence of India'
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431
• Armed Forces (Special Powers) Act, 1958 enacted by Parliament
• Enacted to enable certain special powers to be conferred upon the members of the armed forces
in the disturbed areas in the State of Assam and Manipur
• Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam
• The state Act was enacted with a view to make better provision for the suppression of disorder
and for restoration and maintenance of public order in the disturbed areas in Assam
• Entry 2, L- I:
• Naval, Military and air forces, any other armed forces of Union
• By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in L- I:
• 2A. Deployment of any armed force of the Union or any other force subject to the
control of the Union or any contingent or unit thereof in any state in aid of the civil
power, powers, jurisdiction, privileges, and liabilities of the members of such forces
while on such deployment
• Entry 1, L- II:
• Public order (but not including the use of naval, military or air force or any other armed
force of the Union in aid of the Civil power)
• Arguments against the Central Act:
• The Central Act is a law with respect to “Public Order” and falls under E.I LII
• Does not make provision for use of armed forces “in aid of the civil power”
• As soon as an area has been declared to be a disturbed area under the Central Act
members of armed forces get independent power to act, independent of the control or
supervision of any executive authority of the State
• Arguments in favour of the Central Act:
• The Central Act does not fall under any entry in the State list and, as originally enacted in 1958,
it was a law made under A. 248 r/w E. 97 L. I
• After the 42nd Amendment, it is a law falling under E. 2A L I
• The power of state u/e. 1, L. II does not extend to the use of armed forces in aid of the civil
power
• Parliament has been empowered to make a law in that regard and this position has been made
explicit by entry 2A of the Union List
• Held:
• The expression "in aid of the civil power" in E. 2A L. I and in E. 1 L.II implies that deployment
of the armed forces of the Union shall be for the purpose of enabling the civil power in the State
• to deal with the situation affecting maintenance of public order which has necessitated
the deployment of the armed forces in the State
• The word "aid" postulates the continued existence of the authority to be aided
• even after deployment of the armed forces the civil power will continue to function
• The armed forces of the Union would operate in the State concerned in co-operation with the
civil administration so that the situation which has necessitated the deployment of armed forces
is effectively dealt with and normalcy is restored
• The Central Act
• does not displace the civil power of the state by the armed forces of the Union
• only provides for deployment of armed forces of the Union in aid of the Civil Power
• not a law in respect of maintenance of public order falling under Entry I of list II
• After the insertion of E. 2A in List I by the 42nd amendment, the legislative power of Parliament
to enact the Central Act flows from Entry 2A of List I
• Therefore, Parliament was competent to enact the Central Act in exercise of the legislative
power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I
Emergency Provisions
National Emergency
Article 352
• Proclamation of Emergency.-
1. If the President is satisfied that a grave emergency exists whereby the security of India or of
any part of the territory thereof is threatened, whether by war or external aggression or
armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the
whole of India or of such part of the territory thereof as may be specified in the Proclamation
Explanation: A Proclamation of Emergency declaring that the security of India or any part of the territory thereof
is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence
of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof
1. A Proclamation issued under clause (1) may be or revoked by a subsequent proclamation
2. The President shall not issue a Proclamation under clause (1) or a Proclamation varying such
Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting
of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a
Proclamation may be issued has been communicated to him in writing
3. Every Proclamation issued under this article shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate
at the expiration of one month unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at
a time when the House of the People has been dissolved, or the dissolution of the House of the People takes
place during the period of one month referred to in this clause, and if a resolution approving the Proclamation
has been passed by the Council of States, but no resolution with respect to such Proclamation has been
passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate
at the expiration of thirty days from the date on which the House of the People first sits after its
reconstitution, unless before the expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People
1. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of the passing of the second of the resolutions approving
the proclamation under clause (4);
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed
by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of
six months from the date on which it would otherwise have ceased of operate under this clause
Provided further that if the dissolution of the House of the People takes place during any such period of six
months and a resolution approving the continuance in force of such Proclamation has been passed by the Council
of States but no resolution with respect to the continuance in force of such Proclamation has been passed
by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of
thirty days from the date on which the House of the People first sits after its reconstitution unless before the
expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation
has been also passed by the House of the People
1. For the purpose of clause (4) and (5), a resolution may be passed by either House of Parliament
only
• by a majority of the total membership of that House and
• by a majority of not less than two thirds of the members of that House present
and voting
Eg:
• First Requirement: More than 50% of the membership of that House
• Total Strength: 545
• Required Majority: 50% of 545
= 273
• Second Requirement: 2/3rd members present and voting
• Present: 540
• Present and voting: 530
• Required Majority: 2/3rd of 530
= 353
1. Notwithstanding anything contained in the foregoing clauses, the President shall revoke a
Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House
of the People passes a resolution disapproving, or, as the case may be, disapproving the
continuance in force of, such Proclamation
2. Where a notice in writing signed by not less than one tenth of the total number of members
of the House of the People has been given of, their intention to move a resolution for
disapproving, or, as the case may be, for disapproving the continuance in force of, a
Proclamation issued under clause (1) or a Proclamation varying such Proclamation,
a) to the Speaker, if the House is in session; or
b) to the President, if the House is not in session,
a special sitting of the House shall be held within fourteen days from the date on which such notice is received
by the Speaker, or as the case may be, by the President, for the purpose of considering such resolution
1. The power conferred on the President by this article shall include the power to issue different
Proclamations on different grounds, being war or external aggression or armed rebellion or
imminent danger of war or external aggression or armed rebellion, whether or not there is a
Proclamation already issued by the President under clause (1) and such Proclamation is in
operation (Added by Constitution (Thirty-eight Amendment) Act, 1975)
Consequences of “Proclamation of Emergency”
On Legislative and Executive Power
• A. 353: Effect of Proclamation of Emergency.-
• While a Proclamation of Emergency is in operation, then—
• notwithstanding anything in this Constitution, the executive power of the Union shall extend
to the giving of directions to any State as to the manner in which the executive power thereof
is to be exercised;
• the power of Parliament to make laws with respect to any matter shall include power to
make laws conferring powers and imposing duties, or authorising the conferring of powers and
the imposition of duties, upon the Union or officers and authorities of the Union as respects that
matter, notwithstanding that it is one which is not enumerated in the Union List:
[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,—
(i) the executive power of the Union to give directions under clause (a), and
(ii) the power of Parliament to make laws under clause (b),
shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency
is in operation if and in so far as the security of India or any part of the territory thereof is threatened by
activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in
operation.] (Added by Constitution (Forty-second Amendment) Act, 1976)
• Note: Read with A. 250
• A. 250: Power of Parliament to legislate with respect to any matter in the State List if a
Proclamation of Emergency is in operation.-
• Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency
is in operation, have power to make laws for the whole or any part of the territory of India with
respect to goods and services tax provided under article 246A or any of the matters
enumerated in the State List.
• A law made by Parliament which Parliament would not but for the issue of a Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency, cease to
have effect on the expiration of a period of six months after the Proclamation has ceased
to operate, except as respects things done or omitted to be done before the expiration of the
said period.
On Fiscal Relations
• A. 354: Application of provisions relating to distribution of revenues while a Proclamation of
Emergency is in operation.-
1. The President may, while a Proclamation of Emergency is in operation, by order direct that
all or any of the provisions of articles 268 to 279 shall for such period, not extending in any
case beyond the expiration of the financial year in which such Proclamation ceases to
operate, as may be specified in the order, have effect subject to such exceptions or
modifications as he thinks fit
2. Every order made under clause (1) shall, as soon as may be after it is made, be laid before each
House of Parliament
On Duration of Lok Sabha and State Legislature
• A. 83: Duration of House of Parliament.-
1. …
2. The House of the People, unless sooner dissolved, shall continue for five years from the date
appointed for its first meeting and no longer and the expiration of the said period of five years
shall operate as a dissolution of the House:
Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by
Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period
of six months after the Proclamation has ceased to operate
• Note: Similar provision in Proviso to A. 172 (Duration of State Legislature)
On Fundamental Rights
• A. 358: Suspension of provisions of article 19 during emergencies.-
1. [While a Proclamation of Emergency declaring that the security of India or any part of the
territory thereof is threatened by war or by external aggression is in operation]*, nothing in
article 19 shall restrict the power of the State as defined in Part III to make any law or to take
any executive action which the State would but for the provisions contained in that Part be
competent to make or to take, but any law so made shall, to the extent of the incompetency,
cease to have effect as soon as the Proclamation ceases to operate, except as respects things
done or omitted to be done before the law so ceases to have effect:
*Amended by Constitution (Forty-fourth Amendment) Act, 1978
[Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India,
any such law may be made, or any such executive action may be taken, under this article in relation to or in any
State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation,
if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation of Emergency is in operation.]*
1. [Nothing in clause (1) shall apply—
(a) to any law which does not contain a recital to the effect that such law is in relation
to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital]**
*Amended by Constitution (Forty-second Amendment) Act, 1976
**Amended by Constitution (Forty-fourth Amendment) Act, 1978
A. 359- Suspension of the enforcement of the rights conferred by Part III during emergencies
1. Where a Proclamation of Emergency is in operation, the President may by order declare that the right
to move any court for the enforcement of such of [the rights conferred by Part III (except articles 20
and 21)]* as may be mentioned in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended for the period during which the
Proclamation is in force or for such shorter period as may be specified in the order
*Amended by Constitution (Forty-fourth Amendment) Act, 1978
1A.[While an order made under clause (1) mentioning any of [the rights conferred by Part III (except
articles 20 and 21)]** is in operation, nothing in that Part conferring those rights shall restrict the power of
the State as defined in the said Part to make any law or to take any executive action which the
State would but for the provisions contained in that Part be competent to make or to take, but any law so
made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid
ceases to operate, except as respects things done or omitted to be done before the law so ceases to have
effect:]*
[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any
such law may be made, or any such executive action may be taken, under this article in relation to or in any
State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation,
if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation of Emergency is in operation]***
*Amended by Constitution (Thirty-eighth Amendment) Act, 1975
**Amended by Constitution (Forty-fourth Amendment) Act, 1978
***Amended by Constitution (Forty-second Amendment) Act, 1976
1B. Nothing in clause (1A) shall apply—
(a) to any law which does not contain a recital to the effect that such law is in relation to the
Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital
(c) An order made as aforesaid may extend to the whole or any part of the territory of India:
Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such
order shall not extend to any other part of the territory of India unless the President, being satisfied that the security
of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of
India in which the Proclamation of Emergency is in operation, considers such extension to be necessary
1. Every order made under clause (1) shall, as soon as may be after it is made, be laid before each
House of Parliament
4. To summarise:
1. Change in the Executive machinery of the state(s)
2. Change in Legislative Relations of the state(s)
3. Change in Fiscal Relations
4. Duration of Lok Sabha
5. Suspension of Fundamental Rights
1. Automatic suspension of A. 19
2. Suspension of other FRs through Presidential Order (except a. 20 & 21)
Makhan Singh Tarsikka v. State of Punjab AIR 1964 SC 381
• Arose during proclamation of emergency issued in 1962 when enforcement of A. 14, 21 and 22 was
suspended by PO issued u/a. 359
• An order of detention was passed under u/r 30(i)(b) of Defence of India Rules, 1963
• Empowered the State/Central government to detain a person so as to prevent him from acting
in any manner prejudicial to the defence of India, civil defence, public safety and maintenance
of public order
• Detention order was challenged u/s 491(b) Cr.Pc.
• “any High Court may whenever it thinks fit direct that a person illegally or improperly detained
in public custody may be set at liberty”
• Grounds of Challenge:
• The enforcement of A. 14, 21 and 22 has been suspended; the rights still subsist
• Rule 30(i)(b) infringes A. 14, 21 and 22
• A. 359 barred enforcement of Constitutional Remedies u/a. 32 and 226; not u/s 491 Cr.Pc.
• Held:
• No action could lie u/s. 491 Cr.Pc.
• A. 359 bars the right to move “any court” which will include both Supreme Court and High
Courts
• Therefore,
• none of the courts could be moved to enforce the suspended FRs under any of the
articles/legal provisions; which would include not just A. 32, 226 but also s. 491, Cr.Pc.
• Judicial review on other grounds expect the suspended FRs was not barred
• Thus, a detenu could challenge
• his detention on the violation of the mandatory provisions of the
detention law
• a mala fide detention
• the rules/Act on grounds of excessive delegation
Additional District Magistrate, Jabalpur v. S. S. Shukla, AIR 1976 SC 1207
• On 27 June 1975, in exercise of powers conferred by A. 359 (1) the President declared that
• the right of any person including a foreigner to move any Court for the enforcement of the rights
conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings
pending in any Court for the enforcement of the above-mentioned rights shall remain suspended
for the period during, which the Proclamations of emergency made under Clause (1) of Article
352 of the Constitution on 3 December 1971 and on 25 June 1975 are both in force.
• On 8th January 1976 there was a notification that
• the right of any person to move any Court for the enforcement of the rights conferred by Article
19 of the Constitution and all proceedings pending in any Court for the enforcement of the
above-mentioned rights shall remain-suspended for the period during which the Proclamation
of emergency made under Clause (1) of Article 352 of the Constitution on 3 December 1971
and on 25 June 1975 are in force
• Whether in view of the Presidential Orders dated 27 June 1975 and 8 January 1976 any writ petition
under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a
person detained under the Act on the ground that the order of detention or the continued detention is for
any reason not under or in compliance with the Act is maintainable?
• No person has any locus standi to move any writ petition under A. 226 before a High Court for habeas
corpus or any other writ or order or direction
• to challenge the legality of an order of detention under the Maintenance of Internal Security
Act, 1971
• on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated
by mala fides, factual or legal, or is based on extraneous considerations
• A. 21 of the Constitution is the sole repository of rights to life and personal liberty against State
• Any claim to a writ of habeas corpus is enforcement of A. 21 and is, therefore, barred by the PO
• The object of A. 359(1) is not only that the right to move this Court is barred but also the right to move
any court
• The bar created by A. 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned
in the PO
• whether by way of an application under A. 32 or
• by way of application under A. 226 or
• under s. 491 of the Code of Criminal Procedure
• The PO is, therefore, a bar at the threshold
• The Act is valid law, and it has laid down procedure which cannot be challenged because A. 21 and 22
cannot be enforced
• Thus,
• the Constitution is the mandate
• the Constitution is the rule of law
• no one can arise above the rule of law
• the suspension of right to enforce FRs has the effect that the emergency provisions are by
themselves the rule of law during times of emergency
• there cannot be any rule of law other than the constitutional rule of law
• Dissenting Opinion of Khanna, J.-
“Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or
liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and
not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless
society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived
of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless
possessions which cannot be made the plaything of individual whim and caprice and that any act which has the
effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land. Article
21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part
III of the Constitution.”
State Emergency
• A. 356: Provisions in case of failure of constitutional machinery in States.-
1. If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied
that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President may by Proclamation—
a. assume to himself all or any of the functions of the Government of the State and
all or any of the powers vested in or exercisable by the Governor or any body or
authority in the State other than the Legislature of the State;
b. declare that the powers of the Legislature of the State shall be exercisable by or under
the authority of Parliament; (Read with A. 357)
c. make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers
vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this
Constitution relating to High Courts
2. any such Proclamation may be revoked or varied by a subsequent Proclamation
3. Every Proclamation under this article shall be laid before each House of Parliament and shall, except
where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two
months unless before the expiration of that period it has been approved by resolutions of both Houses
of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at
a time when the House of the People is dissolved or the dissolution of the House of the People takes place
during the period of two months referred to in this clause, and if a resolution approving the Proclamation has
been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by
the House of the People before the expiration of that period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless
before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed
by the House of the People
4. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six
months from the date of issue of the Proclamation:
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is
passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further
period of six months from the date on which under this clause it would otherwise have ceased to operate, but
no such Proclamation shall in any case remain in force for more than three years:
Provided further that if the dissolution of the House of the People takes place during any such period of six
months and a resolution approving the continuance in force of such Proclamation has been passed by the
Council of States, but no resolution with respect to the continuance in force of such Proclamation has been
passed by the House of the People during the said period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless
before the expiration of the said period of thirty days a resolution approving the continuance in force of the
Proclamation has been also passed by the House of the People:
Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May, 1987 with
respect to the State of Punjab, the reference in the first proviso to this clause to “three years” shall be construed
as a reference to five years*
* Constitution (Sixty-fourth Amendment) Act, 1990
5. Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force
of a Proclamation approved under clause (3) for any period beyond the expiration of one year from
the date of issue of such Proclamation shall not be passed by either House of Parliament unless—
a) Proclamation of Emergency is in operation, in the whole of India or, as the case may
be, in the whole or any part of the State, at the time of the passing of such resolution, and
b) the Election Commission certifies that the continuance in force of the Proclamation
approved under clause (3) during the period specified in such resolution is necessary on
account of difficulties in holding general elections to the Legislative Assembly of the
State concerned:*
Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th
day of May, 1987 with respect to the State of Punjab
* Constitution (Forty-fourth Amendment) Act, 1978
Justiciability of President’s Satisfaction
Constitution (Thirty-Eighth Amendment) Act, 1975
• Amendment to A. 356:
• "(5) Notwithstanding anything in this Constitution, the satisfaction
of the President mentioned in clause (1) shall be final and conclusive
and shall not be questioned in any court on any ground.“
• Repealed by 44th Amendment, 1978
State of Rajasthan v. Union of India, AIR 1977 SC 1361
• Background:
• In the fresh elections held in March 1977, the ruling party lost its majority and went out of
power
• On March 24, 1977, the Janata Party which had secured an overwhelming majority; formed the
new Government at the Centre
• On the date that the Janata Government took office, the Congress was in power in various States
including
• Bihar, Haryana, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar
Pradesh and West Bengal
• On April 18, 1977, the Union Home Minister, Mr. Charan Singh, addressed a letter to the Chief
Ministers of these States
• “earnestly commending” for their consideration that they may advise the Governors of
their respective States “to dissolve the State Assemblies in exercise of the powers
under A. 174(2)(b) and seek a fresh mandate from the electorate”
• According to the Home Minister's letter that would be “consistent with constitutional
precedents and democratic practices”
• The states filed suits in the court praying for
• a declaration that the letter of the Home Minister was illegal, and ultra vires of the Constitution
and not binding on the plaintiffs
• an interim injunction restraining the Central Government from resorting to A. 356 of the
Constitution
• Held:
• It could not interfere with the Centre’s exercise of power u/s. 356
• Questions of political wisdom or executive policy could not be subjected to judicial control
• Satisfaction of the President u/a. 356 is a subjective one and cannot be tested by reference
to any objective tests
• The usual practice is that the President acts under A. 356(1) of the Constitution only on the
Governor's report
• But, the use of the words “or otherwise” show that Presidential satisfaction could be
based on other materials as well
• The court cannot go into the questions of correctness or adequacy of facts on which the
satisfaction is based
• That would be a dangerous exercise for the court, both because
• it is not a fit instrument for determining a question of this kind and
• also the court would thereby usurp the function of Central Government
• But, if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the
court would have jurisdiction to examine it
• In that case, there would be no satisfaction of the President in regard to the matter
on which he is required to be satisfied
• The satisfaction of the President is a condition precedent to the exercise of power
under Art. 356(1) and if it can be shown that there is no satisfaction of the President at
all, the exercise of the power would be constitutionally invalid
• Maintenance of democratic norms could not be regarded as perverse or irrelevant ground
for the exercise of power u/a. 356
• The letter was not a directive but only advisory
• The ground given in the letter were not mala fide or extraneous or irrelevant
S. R. Bommai v. Union of India, AIR 1994 SC 1918
• Karnataka:
• The Janata Party being the majority party in the Karnataka had formed Government under the
leadership of S. R. Bommai
• In 1988, certain members defected from the party and arose a question of majority support in
the House
• The Chief Minister proposed for a floor test
• But the Governor reported to the President that S.R. Bommai has lost support in the House and
no other party was in a position to form the government
• President issued the Proclamation which was, thereafter, approved by the Parliament as required
by Article 356(3)
• Meghalaya:
• The ruling party was called for a floor test when opposition claimed to have support of majority
and requested the Governor to invite them and form the government
• 30 supported the government in floor test and 27 voted against
• However, due to disqualification of the grounds of defection of 5 MLAs, an uproar ensued
• President on October 11, 1991 issued Proclamation under Article 356(1)
• The Proclamation stated that the President was satisfied on the basis of the report from the
Governor and other information received by him that the situation had arisen in which the
Government of the State could not be carried on in accordance with the provisions of the
Constitution
• Nagaland:
• On 7th August 1988, the President issued a Proclamation dismissing the Government of
Nagaland and dissolving the State Legislative Assembly when ruling government lost majority
• Madhya Pradesh, Rajasthan and Himachal Pradesh:
• On account of the Babri Masjid demolition, communal riots spread out in the entire country
• On 15 December 1992, the president issued the proclamation under Article 356 dismissing the
State Governments and dissolving the Legislative Assemblies of Madhya Pradesh, Himachal
Pradesh and Rajasthan
• Held:
• The question whether the CM has lost majority should be tested on the floor of the House and
not in Governor’s office
• The validity of the proclamation issued u/a. 356(1) is justiciable on such grounds as whether it
was issued on the basis of any material at all, relevancy of material, mala fide exercise of power
or whether the proclamation was based on wholly extraneous or irrelevant grounds
• President does not have absolute power and must be based on relevant material
• If the courts invalidate the proclamation (even the once approved by the parliament), the action
of the President becomes invalid
• The State Legislature, if dissolved, will be restored
• On A. 74(2):
• It bars an inquiry by courts on what advice was tendered by the Council of Ministers
to the President
• It does not bar the courts from calling upon the CoM to disclose to the courts the
‘material’ on the basis of which advice was formed
• The material does not become the part of the advice
• The court will not go into the correctness of the material on the basis of which the
action was taken
• Will see whether the material was relevant to the action taken
• Therefore,
• Proclamation of Karnataka, Meghalaya and Nagaland were declared invalid
• Proclamations of MP, Rajasthan and HP were upheld
Rameshwar Prasad v. Union of India, AIR 2006 SC 980
• Background:
• In 2005, elections were held in State of Bihar, however, no political party was in a position to
form the government
• On 7th March, 2005, President's rule was imposed and later dissolution of Legislative Assembly
was ordered on 23rd May, 2005 (even before the first meeting of Legislative Assembly) on the
basis of the Governor’s report that attempts were being made to cobble majority by illegal means
• Held:
• Proclamation under A. 356 is open to judicial review, but to a very limited extent
• Only when the power is exercised mala fide or is based on wholly extraneous or irrelevant
grounds, the power of judicial review can be exercised
• The notification was held to be unconstitutional on the grounds that drastic measures cannot be
justified without verification of facts
• There was no material with the Governor to assume that there was no legitimate
realignment of political parties and that there was blatant distortion of democracy by
induced defections
Financial Emergency
• A. 360: Provisions as to financial emergency.-
1. If the President is satisfied that a situation has arisen whereby the financial stability or credit
of India or of any part of the territory thereof is threatened, he may by a Proclamation make
a declaration to that effect
2. A Proclamation issued under clause (1)—
a) may be revoked or varied by a subsequent Proclamation;
b) shall be laid before each House of Parliament;
c) shall cease to operate at the expiration of two months, unless before the expiration of
that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or
the dissolution of the House of the People takes place during the period of two months referred to in sub clause
(c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution
with respect to such Proclamation has been passed by the House of the People before the expiration of that period,
the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the
People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People
1. During the period any such Proclamation as is mentioned in clause (1) is in operation, the
executive authority of the Union shall extend to the giving of directions to any State to
observe such canons of financial propriety as may be specified in the directions, and to the
giving of such other directions as the President may deem necessary and adequate for the
purpose.
2. Notwithstanding anything in this Constitution—
a) any such direction may include—
i. a provision requiring the reduction of salaries and allowances of all or any
class of persons serving in connection with the affairs of a State;
ii. a provision requiring all Money Bills or other Bills to which the provisions
of article 207 apply to be reserved for the consideration of the President
after they are passed by the Legislature of the State;
b) it shall be competent for the President during the period any Proclamation issued under
this article is in operation to issue directions for the reduction of salaries and
allowances of all or any class of persons serving in connection with the affairs of
the Union including the Judges of the Supreme Court and the High Courts
Constitutional Amendments
Article 368 - Before Constitution (Twenty-Fourth Amendment) Act, 1971

• Article 368: Procedure for Amendment of the Constitution.-
• An amendment of this Constitution may be initiated only by introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of total membership of that house present and voting, it shall be presented to the President and
upon his assent the Constitution shall stand amended with the terms of the Bill…
Article 368:
• Power of Parliament to amend the Constitution and procedure therefor.-
1. Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.
1. An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House and by a majority of not less than two-thirds of the
members of that House present and voting, it shall be presented to the President who shall
give his assent to the Bill and thereupon the Constitution shall stand amended in accordance
with the terms of the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, article 162 or article 241, or article 279A, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by
resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is
presented to the President for assent.
Types of Majority Required for Amendment of Constitution

• Simple Majority:
• These amendments are not subject to Article 368
• Eg:
• Article 2: Admission or establishment of new state
• Article 11: Parliament to regulate the right of citizenship by law
• Article 169: Abolition or creation of Legislative Councils in States
• Special Majority under A. 368 (2):
• An Amendment bill may be initiated in either house
• Shall be passed by Special Majority
• i.e. a majority of total membership of the house and a majority of not less than two-
third present and voting
Eg:
Scenario 1:
= 273
= 353
Scenario 2:
= 273
= 166
• Special Majority + Ratification by minimum 50% of the State Legislatures
• Any amendment pertaining to
• Election of President (Article 54)
• Manner of Election (Article 55)
• Extent of executive power of the Union (Article 73)
• Extent of executive power of State (Article 162)
• High Court for Union Territory (Article 241)
• Goods and Services Tax Council (Article 279A)
• The Union Judiciary (Part V, Chapter IV )
• The High Courts in the States (Part VI, Chapter V)
• Legislative Relations (Part XI, Chapter I )
• the Lists in the Seventh Schedule
• the representation of States in Parliament
• Article 368 itself
JOURNEY OF ARTICLE 368
Pre-Kesavananda Bharati Position, Kesavananda Bharati & Post-Kesavananda Bharati
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
• Constitution (First Amendment) Act, 1951 was challenged
• Inserted A. 31A & A. 31B
• Issue:
• Does a Constitutional Amendment under Article 368 constitute as “law” under Article 13?
• Held:
• Amendment is made under constituent power, not ordinary legislative power
• There is a clear demarcation between ordinary law, which is made in the exercise of legislative
power, and constitutional law, which is made in the exercise of constituent power
• In the context of A. 13, “law” must be taken to mean
• rules or regulations made in exercise of ordinary legislative power and
• not amendments to the Constitution made in the exercise of constituent power
• Parliament has power to amend the Constitution without any exception
• And FRs are not immunized from the process of Constitutional Amendments
• Therefore,
• A. 13 should be read subject to A. 368
• A. 13(2) does not affect amendments made under A. 368 and Parliament can
amend the FRs by following the “procedure” laid down in A. 368
Golak Nath v. State of Punjab, AIR 1967 SC 1643
• The validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act,
1962 was challenged by the petitioners under A. 32
• These Acts were included in the 9th Schedule to the Constitution by the Constitution (Seventeenth
Amendment) Act, 1964
• The validity of the 17th Amendment Act was under challenge
• Arguments:
• Shankari Prasad’s case has been wrongly decided
• Parliament had no power to amend Fundamental Rights in Part III of the Constitution
• Held:
• Over-ruled Shankari Prasad and Sajjan Singh
• To avoid a possible erosion of fundamental rights
• A. 368 talks about “Procedure to amend the Constitution”; not power
• The power to amend the Constitution was to be found in A. 248 in the residuary clause read
with E. 97, L. I; not A. 368
• Such power was not mentioned in any article or legislative entry
• No distinction between ordinary law made under “legislative” process and
constitutional amendment made under “constituent” process
• U/a. 368, a constitutional amendment is to be enacted by following procedure which is similar
to the procedure for making laws
• The provision for Presidential Assent is similar in both the cases
• Therefore, amendment is law and cannot abridge Fundamental Rights; subject to A. 13
• Doctrine of Prospective Over-ruling
• Did not invalidate the amendments made to the Fundamental Rights
• But ruled that Parliament would not have power to abridge for take away fundamental
rights in future
Para 78. The aforesaid discussion leads to the following results:
1. The power of the Parliament to amend the Constitution is derived from Arts. 245, 246 and 248
of the Constitution and not from Art. 368 thereof which only deals with procedure. Amendment
is a legislative process.
2. Amendment is 'law' within the meaning of Art. 13 of the Constitution and, therefore, if it takes
away or abridges the rights conferred by Part III thereof, it is void.
3. The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955,
and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental
rights. But, on the basis of earlier decisions of this Court, they were valid.
4. On the application of the doctrine of 'prospective over-ruling', as explained by us earlier, our
decision will have only prospective operation and, therefore, the said amendments will continue
to be valid.
5. We declare that the Parliament will have no power from the date of this decision to amend
any of the provisions of Part III of the Constitution so as to take away or abridge the
fundamental rights enshrined therein…
Constitution (Twenty-fourth Amendment) Act, 1971
• Made several amendments to Article 368 itself
• Word “power” was added to the Marginal Note
• Power of the Parliament to amend the Constitution and procedure therefor
• Article 368 (1) and (3) were added
• A. 368(1):
• Notwithstanding anything in this Constitution, Parliament may in exercise of
its constituent power amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the procedure laid down in
this article.
• A. 368 (3):
• Nothing in article 13 shall apply to any amendment made under this
article
• Changes in A. 368 (2):
• It shall be presented to the President who shall give his assent to the Bill
and thereupon
• Article 13 (4) was added
• Nothing in this article shall apply to any amendment of this Constitution made
under article 368
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
• Validity of 24th Amendment and 25th Amendment (which added article 31C) was under challenge
• Article 31C.- Saving of laws giving effect to certain directive principles:
• Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State
towards securing all or any of the principles laid down in Part IV shall be deemed to be void on
the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by
Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such
policy shall be called in question in any court on the ground that it does not give effect to such
policy:
Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply
thereto unless such law, having been reserved for the consideration of the President, has received his assent
• Held:
• Power to amend the Constitution is found in A. 368 itself
• Amendment is not “law” and Fundamental Rights can be amended
• A. 13 does not include a “constitutional” law
• Therefore, over-ruled Golak Nath’s case
• However, unlimited power to amend the constitution was not given
• The word “amend” does not mean a fundamental change in the Constitution
• The Basic Structure cannot be amended (The Doctrine of Basic Structure)
• A constitutional amendment which offends the basic features of the Constitution is
invalid as some features of the Constitution are unamendable features
• Some of the basic features of the Constitution are:
• Supremacy of Constitution
• Republican and Democratic form of government
• Secular character of Constitution
• Federal character
• Unity and Integrity of Nation
• Welfare State
• Sovereignty of India
• H.R. Khanna, J.-
• It seems to me to be clear that the word 'law' in Article 13(2), in the context, could only mean
an ordinary law. When Article 13 (2) said that the State shall not make any 'law' the meaning of
the expression 'law' has to be gathered from the context. Though, analytically, it might be
possible to say that the word 'law' would include an amendment of the Constitution also, from
the context it would be clear that it only meant ordinary law. A word by itself is not crystal
clear. It is the context that gives it the colour. In the setting of Article 13(2), what was
prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of
Part XI or any other provisions enabling it to pass laws, which were legislative in character. The
Constitution-makers only wanted to provide against the more common invasion of Fundamental
Rights by ordinary legislation.
• If the power to amend was to be found within Article 368 and not under Article 248 read with
entry 97 of List I of the Seventh Schedule, it stands reason to hold that constituent power for
amendment of the Constitution is distinct from legislative power.
• It would be strange that when a whole chapter has been devoted to the "Amendment of
the Constitution" and when the question of amendment loomed large in the mind of
the Constitution makers that, even if the power to amend the Constitution was thought to be
legislative in character, it was not put as a specific entry in List I but relegated to the residuary
entry!
• Interpretation of Golak Nath's case that Parliament did not have power to amend any of
provisions of Part III of Constitution so as to take away or abridge fundamental rights cannot
be accepted to be correct - Fundamental rights contained in Part III of our Constitution can,
in my opinion, be abridged or taken away in compliance with procedure prescribed by Art.
368, as long basic structure of Constitution remains unaffected
• Mathew, J.
• There were no express or implied limitations upon power of Parliament to amend Fundamental
Right in such a way as to destroy or damage even core or essence of rights and 24th Amendment,
by its language, makes it clear beyond doubt
• Opening words of amended article should make it clear that no invisible radiation from any
other provision of Constitution would operate as implied limitation upon power of amendment
• Further, amended Art. 368 puts it beyond doubt that power to amend provisions of Constitution
is in article itself, that power includes power to add, vary or repeal any provision of Constitution,
that power is a constituent power, that assent of President to a bill for amendment is compulsory
and that nothing in Art. 13(2) will apply to an amendment under article
Post-Kesavananda Bharati Position
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
• Validity of Clause 4 of 39th Amendment, 1975 was under question which has inserted A.329A
• (4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith, shall apply or shall be deemed ever to have applied to or in relation to the election to
any such person as is referred to in clause (1) to either House of Parliament and such election
shall not be deemed to be void or ever to have become void on any ground on which such
election could be declared to be void or has, before such commencement, been declared to be
void under any such law and notwithstanding any order made by any court, before such
commencement, declaring such election to be void, such election shall continue to be valid in
all respects and any such order and any finding on which such order is based shall be and shall
be deemed always to have been void and of no effect.
• (5) Any appeal or cross appeal against any such order of any court as is referred to in clause (4)
pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
• Withdrew the election of Prime Minister and Speaker from judicial review
• Invalidated High Court’s decision declaring Indira Gandhi’s election as invalid
• Excluded Supreme Court’s jurisdiction to hear any appeal
• Held:
• Clause 4 as unconstitutional
• Destroying the basic structure of the Constitution i.e. separation of powers, equality of status &
opportunity and democracy
• Democracy proceeds on two basic assumptions:
• popular sovereignty in the sense that the country should be governed by the representatives of
the people; that all power came from them; at their pleasure and under their watchful supervision
it must be held; and
• Equality is a multi-coloured concept incapable of a single definition. It is a notion of many shades and
connotations
• that there should be equality among the citizens in arriving at the decisions affecting them
• Mathew, J.: The preamble of the Constitution guarantees equality of status and of opportunity. They are
nebulous concepts. And I am not sure whether they can provide a solid foundation to rear a basic
structure. I think the types of equality which our democratic republic guarantees are all subsumed under
specific articles of the Constitution like Articles 14, 15, 16, 17, 25 etc., and there is no other principle of
equality which is an essential feature of our democratic polity.
• H.R. Khanna, J.
Democracy postulates that there should be periodical election, so that people may be in a position
either to re-elect the old representatives or, if they so choose, to change the representatives and elect in
their place other representative
• Democracy further contemplates that the elections should be free and fair, so that the voters may be
in a position to vote for candidates of their choice
• Democracy can indeed function only upon the faith that election are free and fair and not rigged
and manipulated, that they are effective instruments of ascertaining popular will both in reality and
form
• The effect of impugned clause (4) is to take away both the right and the remedy to challenge the election
of the appellant
• Such extinguishment of the right and remedy to challenge the validity of the election, in my opinion,
is incompatible with the process of free and fair elections
• As a result of the above, I strike down clause (4) of Article 329A on the ground that it violates the
principle of free and fair elections which is an essential postulate of democracy and which in its turn is a
part of the basic structure of the Constitution
Chandrachud, J.
• These provisions are an outright negation of the right of equality conferred by Article 14, a right which
more than any other is a basic postulate of our Constitution
• The function of the Parliament is to make laws, not to decide cases
• The reason of this restraint is not that the Indian Constitution recognizes any rigid separation of powers.
Plainly, it does not.
• The reason is that the concentration of powers in any one organ may, by upsetting that fine balance
between the three organs, destroy the fundamental premises of a democratic government to which
we are pledged
Constitution (Forty-second Amendment) Act, 1976
• Section 55 of the Constitution (Forty-second Amendment) Act, 1976 made changes to A. 368:
4. No amendment of this Constitution (including the provisions of Part III) made or purporting to
have been made under this article [whether before or after the commencement of section 55 of
the Constitution (Forty second Amendment) Act, 1976] shall be called in question in any court
on any ground.
5. For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the
constituent power of Parliament to amend by way of addition, variation or repeal the provisions
of this Constitution under this article
Minerva Mills v. Union of India, AIR 1980 SC 1789
• Validity of the following was under challenge on the touchstone of the ratio of the majority judgment in
Kesavananda Bharati's case
• Certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974
• Constitution (Thirty Ninth Amendment) Act which inserted the impugned Nationalisation
Act in the Ninth Schedule to the Constitution
• Sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976
• Section 4 substituted the words and figures "all or any of the principles laid down in
Part IV" for the words and figures "the principles specified in clause (b) or clause (c)
of Article 39"
• Section 55:
• "(4) No amendment of this Constitution (including the provisions of Part III)
made or purporting to have been made under this article (whether before or
after the commencement of section 55 of the Constitution (Forty-second
Amendment) Act, 1976) shall be called in question in any court on any
ground.
• (5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power - of Parliament to amend by way
of addition, variation or repeal the provisions of this Constitution under this
article".
• Held:
• The Constitution had conferred a limited amending power on the Parliament
• Parliament cannot under the exercise of that limited power enlarge that very
power into an absolute power
• A limited amending power is one of the basic features of Indian Constitution and
therefore, the limitations on that power cannot be destroyed
• Constitution is founded on a nice balance of power among the three wings of the State namely,
the Executive, the Legislature and the Judiciary
• It is the function of the Judges, nay their duty, to pronounce upon the validity of laws
• If courts are totally deprived of that power, the fundamental rights conferred
upon the people will become a mere adornment because rights without remedies
are as writ in water
• “If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure
of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial
review because it will receive the protection of the constitutional amendment which the courts will be
powerless to strike down. Article 13 of Constitution will then become a dead letter because even
ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength
of a constitutional amendment which is not open to challenge.”
• The FRs and DPSPs are like a twin formula, for achieving the social revolution, which is the
ideal which the visionary founders of the Constitution set before themselves
• Indian Constitution is founded on the bed-rock of the balance between Parts III and IV
• To give absolute primacy to one over the other is to disturb the harmony of the
Constitution
• If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an
unrestricted license on the legislature and the executive, both at the Centre and in the States, to
destroy democracy and establish an authoritarian regime
• All legislative action and every governmental action purports to be related, directly or indirectly,
to some directive principle of State policy
• The protection of the amended article will therefore be available to every legislative
action under the sun
• This harmony and balance between fundamental rights and directive principles is an
essential feature of the basic structure of the Constitution
M. Nagaraj v. Union of India, AIR 2007 SC 71
• Challenged Constitution (Eighty-Fifth Amendment) Act, 2001 which inserted A. 16(4A) of the
Constitution providing reservation in promotion with consequential seniority as being unconstitutional
and violative of the basic structure
• Grounds of challenge:
• Parliament cannot under A. 368 expand its amending power so as to acquire for itself the right
to abrogate the Constitution
• Amendment seeks to alter the fundamental right of equality which is part of the basic structure
of the Constitution
• Amendment violates equality in A. 14 read with A. 16(1)
• Held:
• In application of the principle of basic structure, twin tests have to be satisfied (Essence of
Rights Test):
• Width Test
• Whether the impugned amendments obliterate the constitutional limitations
mentioned in A.16(4) namely, backwardness and inadequacy of
representation
• Identity Test
• The theory of basic structure is based on the concept of constitutional identity
• The basic structure jurisprudence is a pre-occupation with constitutional
identity
• The old constitution survives without loss of its identity despite the
change, and it continues even though it has been subjected to alteration
• There can be no rule of law if there is no equality before the law
• Equality is the essence of democracy and, accordingly a basic feature of the Constitution
• Equality of opportunity has two different and distinct concepts
• There is a conceptual distinction between a non-discrimination principle and
affirmative action under which the State is obliged to provide level-playing field to the
oppressed classes
• Article 14 enables classification
• Articles 16(4), 16(4A) and 16(4B) together form part of the same scheme
• Therefore, by applying the
• “width test”, there is no obliteration of any of the constitutional limitations
• test of “identity”, there is no alteration in the existing structure of the equality
code
I. R. Cohelo v. Union of India, (2007) 2 SCC 1
• Facts:
• Gudalur Janmann Estates (Abolition and Conversion into Ryotwari) Act, 1969 – was struck
down because this was not found to be a measure of agrarian reform protected by Article 31-A
• West Bengal Land Holding Revenue Act, 1979 - struck down by the Calcutta High Court as
being arbitrary and, therefore, unconstitutional and the special leave petition was also dismissed
• Inserted in the Ninth Schedule by the Constitution by (Thirty-Fourth Amendment) Act, 1974
and the Constitution (Sixty-Sixth Amendment) Act, 1990 respectively
• Grounds of Challenge:
• Judicial review is a basic feature of the Constitution
• Inserting in the Ninth Schedule an Act which, or part of which, has been struck down as
unconstitutional in exercise of the power of judicial review, is to destroy or damage the basic
structure of the Constitution
• Issue:
• Whether the Basic Structure doctrine would include the laws added to the Ninth Schedule?
• To revisit Waman Rao v. Union of India, (1981) 2 SCC 362
• Held:
• For determining whether or not an amendment destroys basic structure, the actual effect and
impact of the law on the rights guaranteed under Part III has to be taken into account (The
Impact Test i.e. Rights Test)
• No blanket protection to 9th Schedule
• “Assuming that such immunity can be conferred, its constitutional validity would have
to be adjudged by applying the direct impact and effect test, which means the form of
an amendment is not relevant, its consequence would be determinative factor. The
power to make any law at will that transgresses Part III in its entirety would be
incompatible with the basic structure of the Constitution”
• “There is also a difference between the 'rights test' and the 'essence of right test’. Both form part of
application of the basic structure doctrine. When in a controlled Constitution conferring limited power
of amendment, an entire Chapter is made inapplicable, 'the essence of the right' test as applied in M.
Nagaraj's case (supra) will have no applicability. In such a situation, to judge the validity of the law,
it is 'right test' which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi's
cases, elimination of Part III in its entirety was not in issue. We are considering the situation where
entire equality code, freedom code and right to move court under Part III are all nullified by exercise
of power to grant immunization at will by the Parliament which, in our view, is incompatible with the
implied limitation of the power of the Parliament.”
• Shall be a matter of Constitutional adjudication
• the nature and extent of infraction of a Fundamental Right by a statute, sought to be
Constitutionally protected, should be examined
• on the touchstone of the basic structure doctrine
• as reflected in Article 21 read with Article 14 and Article 19 by application
of the “rights test” and the “essence of the right test”
• Therefore, all amendments to the Ninth Schedule to the Constitution made on or after
24th April 1973 shall have to be tested on the touchstone of the basic or essential features
of the Constitution
• Para 81:
• In conclusion, we hold that:
• A law that abrogates or abridges rights guaranteed by Part III of the Constitution may
violate the basic structure doctrine or it may not. If former is the consequence of law,
whether by amendment of any Article of Part III or by an insertion in the Ninth
Schedule, such law will have to be invalidated in exercise of judicial review power of
the Court…
• The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's
case, requires the validity of each new constitutional amendment to be judged on its
own merits. The actual effect and impact of the law on the rights guaranteed under Part
III has to be taken into account for determining whether or not it destroys basic
structure. The impact test would determine the validity of the challenge.
• …even though an Act is put in the Ninth Schedule by a constitutional amendment, its
provisions would be open to attack on the ground that they destroy or damage the basic
structure if the fundamental right or rights taken away or abrogated pertains or
pertain to the basic structure.
• Justification for conferring protection, not blanket protection, on the laws included
in the Ninth Schedule by Constitutional Amendments shall be a matter of
Constitutional adjudication by examining the nature and extent of infraction of a
Fundamental Right by a statute, sought to be Constitutionally protected, and on the
touchstone of the basic structure doctrine as reflected in Article 21 read with Article
14 and Article 19 by application of the "rights test" and the "essence of the right" test
taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case…
Ashoka Kumar Thakur v. Union of India , (2008) 6 SCC 1
• Constitutional validity of A. 15(5), as inserted by the 93rd Amendment, 2005, was challenged
• Held:
• An amendment alters the basic structure if its actual or potential effect would be to damage a
facet of the basic structure to such an extent that the facet's original identity is compromised
• To determine if legislation infringes constitutional limitations and is thus invalid, we use the
two-step effect test
• Step one requires us to first ask if legislation affects a facet of the basic structure
• If it does, then at Step two we ask if the effect on the facet of the structure is to such
an extent that the facet's original identity has been altered
• The principle of equality is very essential for any human society and this principle is stated in
Article 14, 15, 46 of the Constitution which is the basic structure of the Constitution
• Therefore, the amendment was unsuccessfully challenged for violating the basic structure
of the Constitution
Union and the State Executive
Horizontal Structuring of Powers
• Montesquieu believed that ‘Constant experience shows us that every man invested with power is apt to
abuse it … [it is] necessary from the very nature of things that power should be a check to power’
• Accordingly, he argued that the powers of government should be divided among different
persons or bodies, which would act as a check on each other
• If powers were concentrated in one person or body, there would be no check on the exercise of power,
and this results in a swift descent into despotism
(See, Jenny S. Martinez, Horizontal Structuring, The Oxford Handbook of Comparative Constitutional Law)
• Horizontal structuring should be distinguished from vertical structuring, which involves the division of
authority between different organizational levels of government, for example federal and state
governments
• Horizontal structuring, by contrast, involves the division of power between the executive,
legislative, and judicial branches of one level of government
• The term ‘horizontal structuring’ refers to the constitutional system for allocating power among
government actors at the same geographic level of organization. The concept is referred to in some
systems as ‘separation of powers’
• Separation of powers is considered normatively desirable for several reasons, including:
• the idea that dividing power will inhibit government action and therefore tyranny;
• the idea that different types of government bodies are more or less competent at certain tasks;
and
• the idea that certain allocations of authority will help ensure democratic legitimacy for
government policies
Executive- Union & State
Executive Power of the Union
Union Executive
• A. 52: The President of India.-
• There shall be a President of India
• A. 53: Executive power of the Union.-
• The executive power of the Union shall be vested in the President and shall be exercised by
him either directly or through officers subordinate to him in accordance with this Constitution
• Without prejudice to the generality of the foregoing provision, the supreme command of the
Defence Forces of the Union shall be vested in the President and the exercise thereof shall be
regulated by law
• Nothing in this article shall—
a. be deemed to transfer to the President any functions conferred by any existing law on
the Government of any State or other authority; or
b. prevent Parliament from conferring by law functions on authorities other than the
President
State Executive
• A. 153: Governors of States.-
• There shall be a Governor for each State:
Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more
States
• A. 154: Executive power of State.-
1. The executive power of the State shall be vested in the Governor and shall be exercised by
2. Nothing in this article shall—
a. be deemed to transfer to the Governor any functions conferred by any existing law on
any other authority; or
b. prevent Parliament or the Legislature of the State from conferring by law functions on
any authority subordinate to the Governor
• A. 73. Extent of executive power of the Union.—
1. Subject to the provisions of this Constitution, the executive power of the Union shall extend—
a. to the matters with respect to which Parliament has power to make laws; and
b. to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement:…
• Two kinds of executive powers are found in India’s Constitution: general and specific
1. The scope of general executive power is outlined in A. 73: it extends to matters ‘with respect to
which Parliament has power to make laws’
2. The executive power of the States is outlined in A. 162: Subject to the provisions of the
Constitution, it extends to ‘matters with respect to which the Legislature of the State has power
to make laws’
3. Notice that the scope of executive power is defined with reference to the scope of legislative
power; generally speaking, both the Union and State executives may exercise executive power
on matters over which their respective legislatures are authorised to enact legislation - Dam,
S. (2016), Executive, The Oxford Handbook of the Indian Constitution
Council of Ministers
Union Council of Ministers
• A. 74: Council of Ministers to aid and advise President.-
1. There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the advice tendered after such reconsideration
1. The question whether any, and if so what, advice was tendered by Ministers to the President
shall not be inquired into in any court
State Council of Ministers
• A. 163: Council of Ministers to aid and advise Governor.-
1. There shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his discretion.
2. If any question arises whether any matter is or is not a matter as respects which the Governor is
by or under this Constitution required to act in his discretion, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the Governor shall not be
called in question on the ground that he ought or ought not to have acted in his discretion
3. The question whether any, and if so what, advice was tendered by Ministers to the Governor
• A council of ministers always exists to aid and advise the President. The Constitution does not envisage
any situation when a President may govern on his own
• The Supreme Court arrived at this conclusion in UNR Rao v. Indira Gandhi (1971 AIR 1002)
1. With the Lower House dissolved in December 1970, Indira Gandhi had lost her mandate as the
Prime Minister
2. Without a Lower House, there was nothing the council of ministers could be responsible to
3. The ministers should resign or be dismissed
4. Thereafter, the President must carry on the government to the best of his ability until a new
ministry is installed
• The Court rejected this reading- A. 74(1) says that there ‘shall’ be a Council of Ministers with the Prime
Minister at the head to aid and advise the President
1. Even if the Lower House is dissolved prematurely, ministers remain in office until alternative
arrangements are made
• To hold otherwise would ‘change the whole concept of the Executive’
1. It would mean that the President need not have a Prime Minister and Ministers to aid and advise
in the exercise of his functions
• Such a possibility is alien to the system of executive set up under the Constitution
Aid and Advise Clause
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192
• The appellant was a Subordinate Judge on probation whose services were terminated by the Government
of Punjab in the name of Governor of Punjab by an order which did not give any reasons for the
termination
• Contentions of the Appellants:
• The Governor as the constitutional or the formal head of the State can exercise powers and
functions of appointment and removal of members of the subordinate judicial service only on
personal satisfaction (per Sardari Lal v. Union of India, 1971 AIR 1547)
• Contentions of the Respondents:
• The Governor exercises powers of appointment and removal conferred on him by or under the
Constitution like executive powers of the State Government only on the aid and advice of his
Council of Ministers and not personally
• Held:
• The decision in Sardari Lal's case that the President has to be satisfied personally in exercise of
executive power or function is against the established and uniform view of this Court as
embodied in several decisions
• The President as well as the Governor
• is the constitutional head or formal head
• exercises his powers and functions conferred on him by or under the Constitution on
the aid and advice of his Council of Ministers with the Prime Minister at the head in
the case of the Union and the Chief Minister at the head in the case of states in all
matters which vest in the executive
• save in spheres where the Governor is required by or under the Constitution
to exercise his functions in his discretion
• cannot exercise the executive functions personally
• The President and the Governor, custodians of all executive and other powers under various
articles shall, by virtue of these provisions, exercise their formal constitutional powers only
upon and in accordance with the advice of their Ministers save in a few well-known
exceptional situations
• Without being dogmatic or exhaustive, these situations relate to
• the choice of Prime Minister/Chief Minister, restricted by the paramount consideration
that he should command a majority in the House;
• the dismissal of a Government which has lost its majority in the House but refuses to
quit office;
• the dissolution of the House, although in this area the Head of State should avoid
getting involved in politics and must be advised by his Prime Minister (Chief Minister)
who will eventually take the responsibility for the step
M. P. Special Police Establishment v. State of M.P., AIR 2005 SC 325
• Facts:
• A Complaint was made to the Lokayukta against the Ministers of MP Government for having
released 7.5 acres of land illegally to its earlier owners even though the same had been acquired
by the Indore Development Authority
• After investigation, the Lokayukta submitted a report holding that there were sufficient grounds
for prosecuting the two Ministers
• Sanction was applied for from the Council of Ministers for prosecuting the two Ministers (u/s.
197 Cr. Pc.)
• The Council of Ministers held that there was not an iota of material available against both the
Ministers from which it could be inferred that they had entered into a criminal conspiracy with
anyone.
• Thus, refused sanction on the ground that no prima-facie case had been made out
against them
• The Governor then considered grant of sanction keeping in view the decision of the Council of
Ministers
• The Governor opined that the available documents and the evidence was enough to show that a
prima-facie case for prosecution had been made out
• Thus, the Governor accordingly granted sanction for prosecution
• Issue:
• Whether a Governor can act in his discretion and against the aid and advice of the Council of
Ministers in a matter of grant of sanction for prosecution of Ministers for offences under
the Prevention of Corruption Act and/or under the Indian Penal Code?
• Held:
• The normal rule is that the Governor acts on the aid and advice of the Council of Ministers and
not independently or contrary to it
• But there are exceptions under which the Governor can act in his own discretion
• Some of the exceptions are as set out in Shamsher Singh’s case
• But the exceptions mentioned in the judgment are not exhaustive
• There may be situations whereby reason of peril to democracy or democratic principles
an action may be compelled which from its nature is not amenable to Ministerial advice
• Such a situation may be where bias is inherent and/or manifest in the advice
of the Council of Ministers
• If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a
complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse
sanction in spite of overwhelming material showing that a prima-facie case is made out. If, in cases
where prima-facie case is clearly made out, sanction to prosecute high functionaries is refused or
withheld democracy itself will be at stake. It would then lead to a situation where people in power may
break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite
sanction will not be granted
• Therefore,
• The Governor is required to discharge certain functions in his “discretion”
• Discretionary powers need not be express but can even be implied
• Not required to act in “aid and advice” of his Council of Ministers in discharging
discretionary functions
• The Governor’s decision in this regard will be final
Power of President/Governor to promulgate Ordinances during recess of Parliament/Legislature
• Further limitations on Gubernatorial power to promulgate ordinances u/a. 213:

• An ordinance cannot be issued without instructions from the President
• If a law for such purpose would require a previous sanction of the President
• If in opinion of the Governor, a Bill should be reserved for President’s consideration
• If it is with respect to a subject matter for which a law ought to be reserved for
President’s consideration and had received his assent
• Repugnancy provision u/a. 254 applies as is, including 254 (2)
A. K. Roy v. Union of India, AIR 1982 SC 710
In 1980, National Security Ordinance was promulgated which allowed preventive detention for months if a
person was a threat to national security or law and order
A. K. Roy, a Marxist Member of Parliament, was detained by an order passed by the Dhanbad District
Magistrate on the ground that he was indulging in activities that were a threat to the public order
Various opposition members of the Parliament filed writ petitions under Article 32 of the Constitution
contending that President issuing ordinance is impairment to parliamentary democracy of a country and there
was a need to define the scope of the ordinance issuing power of the President
• Issue:
• The scope, limits and justiciability of the ordinance-making power
• Held:
• The power of the President to issue an ordinance under A. 123 of the Constitution is a legislative
and not an executive power
• The contention that the word “law” in A. 21 must construed to mean a law made by the
legislature only and cannot include an ordinance, contradicts directly the express provisions of
A. 123 (2) and 367 (2) of the Constitution
• A. 123(2) reads that the ordinance “shall have the same force and effect as an Act of
Parliament”
• A. 367 (2) reads “Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be
construed as including a reference to an Ordinance made by the President or, to an
Ordinance made by a Governor, as the case may be”
• A. 13(3) and A. 367(2) indicate that the Constitution does not discriminate between a law and
an ordinance promulgated by the President and the provision includes, inter alia, an ordinance
when it talks about “law”
• If an ordinance is not law within the meaning of A. 21, it will stand released from the restraint
imposed upon the legislative power by A. 13 (2)
• Therefore,
• President and the Governor can exercise their legislative power and create
ordinances which have the same force and effect as an Act of Parliament
• According to A. 13 (3) and A. 367 (2), Constitution does not discriminate between
law and ordinance and
• therefore, ordinance is law and
• thus, is subjected to all the restrictions and limitation laid down under A.
21
Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579
• A series of ordinances were promulgated by the Governor of Bihar, between 1967 and 1981 after the
sessions of the State Legislature were prorogued
• The Governor promulgated 256 ordinances and most of them were re-promulgated for a period ranging
from 1 to 14 years
• Most of these had similar provisions and were re-promulgated in a routinely manner
• Petitioner challenged this practice of State of Bihar in promulgating and re-promulgating the ordinances
• It was alleged that the laws are made by the Executive in violation of the constitutional
provisions
• Issue:
• Whether the practice followed by the Government of Bihar could be justified as representing
legitimate exercise of power of promulgating ordinances conferred on the Governor under
Article 213 of the Constitution?
• Held:
• The Constitution allows the President/Governor to promulgate ordinances, which are
authoritative orders that enable the government to take immediate legislative action
• Under the Constitution, the power of the President u/a. 123 and of the Governor u/a. 213 to
issue ordinances is not immune from judicial review
• The maximum life of an Ordinance cannot exceed seven and a half months unless it is
replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before
the expiry of that period
• Re-promulgation of ordinances without placing these ordinances before the legislature is a
subversion of the democratic legislative process and that unfettered re-promulgation of
ordinances is unconstitutional
• It would be a colourable exercise of power on the part of the Executive to continue an
Ordinance with substantially the same provisions beyond the period limited by the
Constitution, by adopting the methodology of re-promulgation
Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1
• Background:
• In 1989, the Bihar government passed the Bihar Non-Government Sanskrit Schools (Taking
Over of Management and Control) Ordinance
• The Ordinance provided for the taking over of 429 Sanskrit schools in the State of Bihar wherein
the services of teachers and other employees of the school were to stand transferred to the state
government
• The first Ordinance was followed by a succession of Ordinances
• None of the ordinances were placed before the state legislature and the state legislature did not
enact a law in terms of the Ordinances
• As a result of these ordinances, teachers employed in the said schools claimed to have been
given the status of Government employees and therefore claimed benefits from the Government
and a writ petition was filed before Patna High Court
• The question was whether seven successive re-promulgations of this Ordinance suffer from any
illegality or constitutional impropriety
• The High Court of Patna held that the repeated re-promulgation of the ordinances was
unconstitutional
• The decision was appealed before a two-judge bench of the Supreme Court in 1998
• held that the re-promulgated Ordinances were invalid
• However, they differed on the decision as to whether the first ordinance was valid or
not
• Thus, they referred the matter to a three-judge bench, which was later referred to a seven-judge
bench as it raised substantial questions relating to the Constitution
• Issues:
• Whether A. 213 of the Constitution confers a mandatory obligation on the Executive to table an
ordinance before the Legislature?
• Whether re-promulgation of an ordinance is permissible as per the Constitution?
• Whether an act through an ordinance remains valid even after the ordinance ceases to operate?
• Held:
• Mandatory requirement for tabling an ordinance
• The Governor while promulgating an Ordinance does not constitute an independent
legislature, but acts on the aid and advice of the Council of Ministers u/a. 163 which
is collectively responsible to the elected legislative body
• Laying of an Ordinance before the state legislature subserves the purpose of legislative
control and supervision over the Ordinance making power
• a necessary concomitant to the supremacy of a democratically elected
legislature
• ensures that the provisions of the Ordinance are debated upon and discussed
in the legislature
• If an Ordinance has to continue beyond the tenure which is prescribed by A.
213 (2)(a), a law has to be enacted by the legislature incorporating its
provisions
• Constitution does not provide that an Ordinance shall assume the character of a law
enacted by the state legislature merely upon the passing of a resolution approving it
• Thus, the placement of an Ordinance before the legislature is a constitutional
necessity; the underlying object and rationale being to enable the legislature to
determine
• the need for and expediency of an ordinance
• whether a law should be enacted or disapproved; or
• whether an Act incorporating the provisions of the Ordinance should be
enacted (with or without amendments)
• In the present case, none of the ordinances were laid before the legislature
• This constituted a fraud on the constitutional power
• Constitutionally, none of the ordinances had the force and effect, thus, did not
create any rights to confer the status of the government employees
• Re-promulgation
• Repeated re-promulgation of the ordinances was a fraud on the Constitution
especially when the Government of the time appears to have persistently avoided the
placement of the ordinances before the legislature
• defeats the constitutional scheme under which
• a limited power to frame ordinances has been given to President and
the Governors
• the Parliament and state legislatures have been constituted as the
primary law makers under the Constitution
• Since the process of issuing the ordinances and re-promulgation thereof was in the
nature of a single transaction and a part of a single series on the same subject, the vice
of invalidity attached to any such exercise of power would not spare the first, second
and the third ordinances, which would, like the subsequent ordinances, be
unconstitutional on the same principle
• Thus, the ordinances in question starting with Ordinance of 1989 were all
constitutionally invalid
• Effect of ordinance upon its ceasing to operate:
• There are two competing constructions which fall for consideration for the expression “shall
cease to operate”
• On one hand, be construed to mean that with effect from the date on which six weeks
have expired after the reassembling of the legislature or upon the disapproval of the
ordinance, it would cease to operate from that date
• “Cease to operate” in this sense would mean that with effect from that date,
the ordinance would prospectively have no operation
• The ordinance is not void at its inception
• On the other hand, be construed to mean that all legal consequences that arose during
the tenure of the ordinance would stand obliterated
• the consequence of an ordinance having ceased to operate would relate back
to the validity of an ordinance
• An ordinance which has ceased to operate is not void
• As an instrument, it is not still–born
• During the tenure of the ordinance, it has the same force and effect as a law enacted by
the legislature
• To determine whether an action under an ordinance produces binding rights, obligations and
liabilities, over-arching consideration must be the element of public interest or constitutional
necessity
• Three-fold test: irreversibility, impracticality or public interest
• In deciding to mould the relief, the effort of the court would be to determine whether
undoing what has been done under the ordinance would manifestly be contrary to
public interest
• Impracticality and irreversibility are subsumed in the considerations which weigh
in the balance while deciding where public interest lies
• The appropriate test to be applied is the test of public interest and constitutional
necessity which would include the issue as to whether the consequences which
have taken place under the Ordinance have assumed an irreversible character
R. K. Garg v. Union of India, AIR 1981 SC 2138
• On 12th January 1981, both Houses of Parliament not being in session, the President issued the Special
Bearer Bonds (Immunities and Exemptions) Ordinance which was later replaced by the Act with
retrospective effect from the date of the ordinance
• In furtherance of this, the Government, proposed to issue instruments called Special Bearer Bonds and
provided incentives for people to invest in them
• The controversial provisions of this legislation were section 3 and section 4, which provided that
• any person who subscribes to these bonds will not be required to disclose the source of money
for his investment in such bonds and he will not be interrogated or subjected to any
investigation, or admissible as evidence in any inquiry or proceedings or levied any penalty on
the basis of his investment
• Issue:
• Whether the Special Bearer Bonds (Immunities and Exemptions) Ordinance, and the Special
Bearer Bonds (Immunities and Exemptions) Act 1981 are ultra-virus of the constitution and are
void?
• Challenge on the ground of A. 123:
• President had no power u/a. 123 of the Constitution to issue the Ordinance as the power to issue
an Ordinance is to enable the executive to deal with an emergent situation
• Held:
• Scope of Power:
• The power to promulgate an Ordinance conferred on the President is co-extensive with
the power of Parliament to make laws and is invested only in order to enable the
executive to tide over an emergent situation which may arise when the Parliament is
not in session
• The legislative power that has been conferred on the executive by the Constitution
makers is for a necessary purpose and it is hedged in by limitations and conditions
• The conferment of such power is not undemocratic because the executive is clearly
answerable to the legislature and if the President, on the aid and advice of the
executive, promulgates an Ordinance in misuse or abuse of this power, the legislature
cannot only pass a resolution disapproving the Ordinance but can also pass a vote of
no confidence in the executive
• There is no qualitative difference between an ordinance issued by the President and an
Act passed by Parliament as also emphasized by A. 367 (2)
• With respect to alterations/amendments to any law:
• If Parliament can by enacting legislation alter or amend tax laws, equally can the President do
so by issuing an Ordinance u/a. 123
• No limitation can, therefore, be read into this legislative power of the Parliament so as
to make it inefficient to alter or amend tax law
• With respect to retrospective effect:
• Where an Act is replacing an ordinance and is given retrospective effect from the date of
promulgation of the ordinances and is providing that anything done or any action taken under
the ordinance to be deemed to have been done or taken under the corresponding provisions of
the Act will be valid
Union and State Executive

Horizontal Structuring of Powers
• Montesquieu believed that ‘Constant experience shows us that every man invested with power is apt to
abuse it … [it is] necessary from the very nature of things that power should be a check to power’
• Accordingly, he argued that the powers of government should be divided among different
persons or bodies, which would act as a check on each other
• If powers were concentrated in one person or body, there would be no check on the exercise of power,
and this results in a swift descent into despotism
• Horizontal structuring should be distinguished from vertical structuring, which involves the division of
authority between different organizational levels of government, for example federal and state
governments
• Horizontal structuring, by contrast, involves the division of power between the executive,
legislative, and judicial branches of one level of government
• The term ‘horizontal structuring’ refers to the constitutional system for allocating power among
government actors at the same geographic level of organization. The concept is referred to in some
systems as ‘separation of powers’
• Separation of powers is considered normatively desirable for several reasons, including:
• the idea that dividing power will inhibit government action and therefore tyranny;
• the idea that different types of government bodies are more or less competent at certain tasks;
and
• the idea that certain allocations of authority will help ensure democratic legitimacy for
government policies
Executive Power of the Union
Union Executive
• A. 52: The President of India.-
• There shall be a President of India
• A. 53: Executive power of the Union.-
• The executive power of the Union shall be vested in the President and shall be exercised by
• Without prejudice to the generality of the foregoing provision, the supreme command of the
Defence Forces of the Union shall be vested in the President and the exercise thereof shall be
regulated by law
• Nothing in this article shall—
a. be deemed to transfer to the President any functions conferred by any existing law on
the Government of any State or other authority; or
b. prevent Parliament from conferring by law functions on authorities other than the
President
State Executive
• A. 153: Governors of States.-
• There shall be a Governor for each State:
Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more
States
• A. 154: Executive power of State.-
1. The executive power of the State shall be vested in the Governor and shall be exercised by
2. Nothing in this article shall—
a. be deemed to transfer to the Governor any functions conferred by any existing law on
any other authority; or
b. prevent Parliament or the Legislature of the State from conferring by law functions on
any authority subordinate to the Governor
___
• A. 73. Extent of executive power of the Union.—
1. Subject to the provisions of this Constitution, the executive power of the Union shall extend—
a) to the matters with respect to which Parliament has power to make laws; and
b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement:…
• Two kinds of executive powers are found in India’s Constitution: general and specific
1. The scope of general executive power is outlined in A. 73: it extends to matters ‘with respect to
which Parliament has power to make laws’
2. The executive power of the States is outlined in A. 162: Subject to the provisions of the
Constitution, it extends to ‘matters with respect to which the Legislature of the State has power
to make laws’
3. Notice that the scope of executive power is defined with reference to the scope of legislative
power; generally speaking, both the Union and State executives may exercise executive power
on matters over which their respective legislatures are authorised to enact legislation - Dam,
S. (2016), Executive, The Oxford Handbook of the Indian Constitution
Council of Ministers
Union Council of Ministers
• A. 74: Council of Ministers to aid and advise President.-
1. There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the advice tendered after such reconsideration
1. The question whether any, and if so what, advice was tendered by Ministers to the President
State Council of Ministers
• A. 163: Council of Ministers to aid and advise Governor.-
1. There shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his discretion.
2. If any question arises whether any matter is or is not a matter as respects which the Governor is
by or under this Constitution required to act in his discretion, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the Governor shall not be
called in question on the ground that he ought or ought not to have acted in his discretion
3. The question whether any, and if so what, advice was tendered by Ministers to the Governor
----
• A council of ministers always exists to aid and advise the President. The Constitution does not envisage
any situation when a President may govern on his own
• The Supreme Court arrived at this conclusion in UNR Rao v. Indira Gandhi (1971 AIR 1002)
• With the Lower House dissolved in December 1970, Indira Gandhi had lost her mandate as the
Prime Minister
• Without a Lower House, there was nothing the council of ministers could be responsible to
• The ministers should resign or be dismissed
• Thereafter, the President must carry on the government to the best of his ability until a new
ministry is installed
• The Court rejected this reading- A. 74(1) says that there ‘shall’ be a Council of Ministers with the Prime
Minister at the head to aid and advise the President
• Even if the Lower House is dissolved prematurely, ministers remain in office until alternative
arrangements are made
• To hold otherwise would ‘change the whole concept of the Executive’
• It would mean that the President need not have a Prime Minister and Ministers to aid and advise
in the exercise of his functions
• Such a possibility is alien to the system of executive set up under the Constitution
Aid and Advise Clause
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192
• The appellant was a Subordinate Judge on probation whose services were terminated by the Government
of Punjab in the name of Governor of Punjab by an order which did not give any reasons for the
termination
• Contentions of the Appellants:
• The Governor as the constitutional or the formal head of the State can exercise powers and
functions of appointment and removal of members of the subordinate judicial service only on
personal satisfaction (per Sardari Lal v. Union of India, 1971 AIR 1547)
• Contentions of the Respondents:
• The Governor exercises powers of appointment and removal conferred on him by or under the
Constitution like executive powers of the State Government only on the aid and advice of his
Council of Ministers and not personally
• Held:
• The decision in Sardari Lal's case that the President has to be satisfied personally in exercise of
executive power or function is against the established and uniform view of this Court as
embodied in several decisions
• The President as well as the Governor
• is the constitutional head or formal head
• exercises his powers and functions conferred on him by or under the Constitution on
the aid and advice of his Council of Ministers with the Prime Minister at the head in
the case of the Union and the Chief Minister at the head in the case of states in all
matters which vest in the executive
• save in spheres where the Governor is required by or under the Constitution
to exercise his functions in his discretion
• cannot exercise the executive functions personally
• The President and the Governor, custodians of all executive and other powers under various
articles shall, by virtue of these provisions, exercise their formal constitutional powers only
upon and in accordance with the advice of their Ministers save in a few well-known
exceptional situations
• Without being dogmatic or exhaustive, these situations relate to
• the choice of Prime Minister/Chief Minister, restricted by the paramount consideration
that he should command a majority in the House;
• the dismissal of a Government which has lost its majority in the House but refuses to
quit office;
• the dissolution of the House, although in this area the Head of State should avoid
getting involved in politics and must be advised by his Prime Minister (Chief Minister)
who will eventually take the responsibility for the step
M. P. Special Police Establishment v. State of M.P., AIR 2005 SC 325
• Facts:
• A Complaint was made to the Lokayukta against the Ministers of MP Government for having
released 7.5 acres of land illegally to its earlier owners even though the same had been acquired
by the Indore Development Authority
• After investigation, the Lokayukta submitted a report holding that there were sufficient grounds
for prosecuting the two Ministers
• Sanction was applied for from the Council of Ministers for prosecuting the two Ministers (u/s.
197 Cr. Pc.)
• The Council of Ministers held that there was not an iota of material available against both the
Ministers from which it could be inferred that they had entered into a criminal conspiracy with
anyone.
• Thus, refused sanction on the ground that no prima-facie case had been made out
against them
• The Governor then considered grant of sanction keeping in view the decision of the Council of
Ministers
• The Governor opined that the available documents and the evidence was enough to show that a
prima-facie case for prosecution had been made out
• Thus, the Governor accordingly granted sanction for prosecution
• Issue:
• Whether a Governor can act in his discretion and against the aid and advice of the Council of
Ministers in a matter of grant of sanction for prosecution of Ministers for offences under
the Prevention of Corruption Act and/or under the Indian Penal Code?
• Held:
• The normal rule is that the Governor acts on the aid and advice of the Council of Ministers and
not independently or contrary to it
• But there are exceptions under which the Governor can act in his own discretion
• Some of the exceptions are as set out in Shamsher Singh’s case
• But the exceptions mentioned in the judgment are not exhaustive
• There may be situations whereby reason of peril to democracy or democratic principles
an action may be compelled which from its nature is not amenable to Ministerial advice
• Such a situation may be where bias is inherent and/or manifest in the advice
of the Council of Ministers
• If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a
complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse
sanction in spite of overwhelming material showing that a prima-facie case is made out. If, in cases
where prima-facie case is clearly made out, sanction to prosecute high functionaries is refused or
withheld democracy itself will be at stake. It would then lead to a situation where people in power may
break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite
sanction will not be granted
• Therefore,
• The Governor is required to discharge certain functions in his “discretion”
• Discretionary powers need not be express but can even be implied
• Not required to act in “aid and advice” of his Council of Ministers in discharging
discretionary functions
• The Governor’s decision in this regard will be final
Power of President/Governor to promulgate Ordinances during recess of Parliament/Legislature
• Further limitations on Gubernatorial power to promulgate ordinances u/a. 213:
• An ordinance cannot be issued without instructions from the President
• If a law for such purpose would require a previous sanction of the President
• If in opinion of the Governor, a Bill should be reserved for President’s consideration
• If it is with respect to a subject matter for which a law ought to be reserved for
President’s consideration and had received his assent
• Repugnancy provision u/a. 254 applies as is, including 254 (2)
A. K. Roy v. Union of India, AIR 1982 SC 710
• In 1980, National Security Ordinance was promulgated which allowed preventive detention for months
if a person was a threat to national security or law and order
• A. K. Roy, a Marxist Member of Parliament, was detained by an order passed by the Dhanbad District
Magistrate on the ground that he was indulging in activities that were a threat to the public order
• Various opposition members of the Parliament filed writ petitions under Article 32 of the Constitution
contending that President issuing ordinance is impairment to parliamentary democracy of a country and
there was a need to define the scope of the ordinance issuing power of the President
• Issue:
• The scope, limits and justiciability of the ordinance-making power
• Held:
• The power of the President to issue an ordinance under A. 123 of the Constitution is a legislative
and not an executive power
• The contention that the word “law” in A. 21 must construed to mean a law made by the
legislature only and cannot include an ordinance, contradicts directly the express provisions of
A. 123 (2) and 367 (2) of the Constitution
• A. 123(2) reads that the ordinance “shall have the same force and effect as an Act of
Parliament”
• A. 367 (2) reads “Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be
construed as including a reference to an Ordinance made by the President or, to an
Ordinance made by a Governor, as the case may be”
• A. 13(3) and A. 367(2) indicate that the Constitution does not discriminate between a law and
an ordinance promulgated by the President and the provision includes, inter alia, an ordinance
when it talks about “law”
• If an ordinance is not law within the meaning of A. 21, it will stand released from the restraint
imposed upon the legislative power by A. 13 (2)
• Therefore,
• President and the Governor can exercise their legislative power and create
ordinances which have the same force and effect as an Act of Parliament
• According to A. 13 (3) and A. 367 (2), Constitution does not discriminate between
law and ordinance and
• therefore, ordinance is law and
• thus, is subjected to all the restrictions and limitation laid down under A.
21
Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579
• A series of ordinances were promulgated by the Governor of Bihar, between 1967 and 1981 after the
sessions of the State Legislature were prorogued
• The Governor promulgated 256 ordinances and most of them were re-promulgated for a period ranging
from 1 to 14 years
• Most of these had similar provisions and were re-promulgated in a routinely manner
• Petitioner challenged this practice of State of Bihar in promulgating and re-promulgating the ordinances
• It was alleged that the laws are made by the Executive in violation of the constitutional
provisions
• Issue:
• Whether the practice followed by the Government of Bihar could be justified as representing
legitimate exercise of power of promulgating ordinances conferred on the Governor under
Article 213 of the Constitution?
• Held:
• The Constitution allows the President/Governor to promulgate ordinances, which are
authoritative orders that enable the government to take immediate legislative action
• Under the Constitution, the power of the President u/a. 123 and of the Governor u/a. 213 to
issue ordinances is not immune from judicial review
• The maximum life of an Ordinance cannot exceed seven and a half months unless it is
replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before
the expiry of that period
• Re-promulgation of ordinances without placing these ordinances before the legislature is a
subversion of the democratic legislative process and that unfettered re-promulgation of
ordinances is unconstitutional
• It would be a colourable exercise of power on the part of the Executive to continue an
Ordinance with substantially the same provisions beyond the period limited by the
Constitution, by adopting the methodology of re-promulgation
Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1
• Background:
• In 1989, the Bihar government passed the Bihar Non-Government Sanskrit Schools (Taking
Over of Management and Control) Ordinance
• The Ordinance provided for the taking over of 429 Sanskrit schools in the State of Bihar wherein
the services of teachers and other employees of the school were to stand transferred to the state
government
• The first Ordinance was followed by a succession of Ordinances
• None of the ordinances were placed before the state legislature and the state legislature did not
enact a law in terms of the Ordinances
• As a result of these ordinances, teachers employed in the said schools claimed to have been
given the status of Government employees and therefore claimed benefits from the Government
and a writ petition was filed before Patna High Court
• The question was whether seven successive re-promulgations of this Ordinance suffer from any
illegality or constitutional impropriety
• The High Court of Patna held that the repeated re-promulgation of the ordinances was
unconstitutional
• The decision was appealed before a two-judge bench of the Supreme Court in 1998
• held that the re-promulgated Ordinances were invalid
• However, they differed on the decision as to whether the first ordinance was valid or
not
• Thus, they referred the matter to a three-judge bench, which was later referred to a seven-judge
bench as it raised substantial questions relating to the Constitution
• Issues:
• Whether A. 213 of the Constitution confers a mandatory obligation on the Executive to table an
ordinance before the Legislature?
• Whether re-promulgation of an ordinance is permissible as per the Constitution?
• Whether an act through an ordinance remains valid even after the ordinance ceases to operate?
• Held:
• Mandatory requirement for tabling an ordinance
• The Governor while promulgating an Ordinance does not constitute an independent
legislature, but acts on the aid and advice of the Council of Ministers u/a. 163 which
is collectively responsible to the elected legislative body
• Laying of an Ordinance before the state legislature subserves the purpose of legislative
control and supervision over the Ordinance making power
• a necessary concomitant to the supremacy of a democratically elected
legislature
• ensures that the provisions of the Ordinance are debated upon and discussed
in the legislature
• If an Ordinance has to continue beyond the tenure which is prescribed by A.
213 (2)(a), a law has to be enacted by the legislature incorporating its
provisions
• Constitution does not provide that an Ordinance shall assume the character of a law
enacted by the state legislature merely upon the passing of a resolution approving it
• Thus, the placement of an Ordinance before the legislature is a constitutional
necessity; the underlying object and rationale being to enable the legislature to
determine
• the need for and expediency of an ordinance
• whether a law should be enacted or disapproved; or
• whether an Act incorporating the provisions of the Ordinance should be
enacted (with or without amendments)
• In the present case, none of the ordinances were laid before the legislature
• This constituted a fraud on the constitutional power
• Constitutionally, none of the ordinances had the force and effect, thus, did not
create any rights to confer the status of the government employees
• Re-promulgation
• Repeated re-promulgation of the ordinances was a fraud on the Constitution
especially when the Government of the time appears to have persistently avoided the
placement of the ordinances before the legislature
• defeats the constitutional scheme under which
• a limited power to frame ordinances has been given to President and
the Governors
• the Parliament and state legislatures have been constituted as the
primary law makers under the Constitution
• Since the process of issuing the ordinances and re-promulgation thereof was in the
nature of a single transaction and a part of a single series on the same subject, the vice
of invalidity attached to any such exercise of power would not spare the first, second
and the third ordinances, which would, like the subsequent ordinances, be
unconstitutional on the same principle
• Thus, the ordinances in question starting with Ordinance of 1989 were all
constitutionally invalid
• Effect of ordinance upon its ceasing to operate:
• There are two competing constructions which fall for consideration for the expression “shall
cease to operate”
• On one hand, be construed to mean that with effect from the date on which six weeks
have expired after the reassembling of the legislature or upon the disapproval of the
ordinance, it would cease to operate from that date
• “Cease to operate” in this sense would mean that with effect from that date,
the ordinance would prospectively have no operation
• The ordinance is not void at its inception
• On the other hand, be construed to mean that all legal consequences that arose during
the tenure of the ordinance would stand obliterated
• the consequence of an ordinance having ceased to operate would relate back
to the validity of an ordinance
• An ordinance which has ceased to operate is not void
• As an instrument, it is not still–born
• During the tenure of the ordinance, it has the same force and effect as a law enacted by
the legislature
• To determine whether an action under an ordinance produces binding rights, obligations and
liabilities, over-arching consideration must be the element of public interest or constitutional
necessity
• Three-fold test: irreversibility, impracticality or public interest
• In deciding to mould the relief, the effort of the court would be to determine whether
undoing what has been done under the ordinance would manifestly be contrary to
public interest
• Impracticality and irreversibility are subsumed in the considerations which weigh
in the balance while deciding where public interest lies
• The appropriate test to be applied is the test of public interest and constitutional
necessity which would include the issue as to whether the consequences which
have taken place under the Ordinance have assumed an irreversible character
R. K. Garg v. Union of India, AIR 1981 SC 2138
• On 12th January 1981, both Houses of Parliament not being in session, the President issued the Special
Bearer Bonds (Immunities and Exemptions) Ordinance which was later replaced by the Act with
retrospective effect from the date of the ordinance
• In furtherance of this, the Government, proposed to issue instruments called Special Bearer Bonds and
provided incentives for people to invest in them
• The controversial provisions of this legislation were section 3 and section 4, which provided that
• any person who subscribes to these bonds will not be required to disclose the source of money
for his investment in such bonds and he will not be interrogated or subjected to any
investigation, or admissible as evidence in any inquiry or proceedings or levied any penalty on
the basis of his investment
• Issue:
• Whether the Special Bearer Bonds (Immunities and Exemptions) Ordinance, and the Special
Bearer Bonds (Immunities and Exemptions) Act 1981 are ultra-virus of the constitution and are
void?
• Challenge on the ground of A. 123:
• President had no power u/a. 123 of the Constitution to issue the Ordinance as the power to issue
an Ordinance is to enable the executive to deal with an emergent situation
• Held:
• Scope of Power:
• The power to promulgate an Ordinance conferred on the President is co-extensive with
the power of Parliament to make laws and is invested only in order to enable the
executive to tide over an emergent situation which may arise when the Parliament is
not in session
• The legislative power that has been conferred on the executive by the Constitution
makers is for a necessary purpose and it is hedged in by limitations and conditions
• The conferment of such power is not undemocratic because the executive is clearly
answerable to the legislature and if the President, on the aid and advice of the
executive, promulgates an Ordinance in misuse or abuse of this power, the legislature
cannot only pass a resolution disapproving the Ordinance but can also pass a vote of
no confidence in the executive
• There is no qualitative difference between an ordinance issued by the President and an
Act passed by Parliament as also emphasized by A. 367 (2)
• With respect to alterations/amendments to any law:
• If Parliament can by enacting legislation alter or amend tax laws, equally can the President do
so by issuing an Ordinance u/a. 123
• No limitation can, therefore, be read into this legislative power of the Parliament so as
to make it inefficient to alter or amend tax law
• With respect to retrospective effect:
• Where an Act is replacing an ordinance and is given retrospective effect from the date of
promulgation of the ordinances and is providing that anything done or any action taken under
the ordinance to be deemed to have been done or taken under the corresponding provisions of
the Act will be valid
Anti-defection Law in India
Background
• Political defections have been an impediment to the parliamentary democracy in India
• Between 1957 to 1967, the Congress was the beneficiary of defections
• It lost 98 of its legislators but gained 419 of them
• Report on Committee on Defections, 1968:
• From 1967-1968– there were 438 defections
• Between 1977-79, 76 MPs defected leading to the fall of PM Morarji Desai’s govt.
• In 1984, PM Rajiv Gandhi proposed anti-defection bill, which was unanimously passed by
Parliament in 1985
Some recent defections
• Arunachal Pradesh (2014)
• Congress had won 47 seats in the 60-member state legislative assembly
• The congress was reduced to just one seat after a split in the party by its own Chief
Minister Pema Khandu, who deserted the Congress with the bulk of other MLAs to
join the People’s Party of Arunachal (later joined the BJP)
• Manipur (2017)
• 60-seat assembly; Congress had won 28, and BJP 21
• BJP formed government, with the support from nine Congress MLAs
• Goa (2017-2022)
• The Congress had emerged as the single largest legislative unit with 17 seats in the 40-member
state assembly in 2017
• By 2022, 15 of its MLAs had quit to join the Bharatiya Janata Party (BJP) in batches
• Maharashtra Political Crisis (2022)
Constitutional Provisions
Statement of Objects and Reasons
“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to
undermine the very foundations of our democracy and the principles which sustain it. With this object, an
assurance was given in the Address by the President to Parliament that the Government intended to introduce in
the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling
the above assurance.”
Tenth Schedule
Paragraph 2: Disqualification on ground of defection.-
1. Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party
shall be disqualified for being a member of the House-
a) if he has voluntarily given up his membership of such political party; or
b) if he votes or abstains from voting in such House contrary to any direction issued by the
political party to which he belongs or by any person or authority authorised by it in this behalf,
without obtaining, in either case, the prior permission of such political party, person or authority
and such voting or abstention has not been condoned by such political party, person or authority
within fifteen days from the date of such voting or abstention.
Explanation.—For the purposes of this sub-paragraph—
a) an elected member of a House shall be deemed to belong to the political party, if any, by which
he was set up as a candidate for election as such member;
b) a nominated member of a House shall,—
i. where he is a member of any political party on the date of his nomination as such
member, be deemed to belong to such political party;
ii. in any other case, be deemed to belong to the political party of which he becomes, or,
as the case may be, first becomes, a member before the expiry of six months from the
date on which he takes his seat after complying with the requirements of article 99 or,
as the case may be, article 188.
2. An elected member of a House who has been elected as such otherwise than as a candidate set up by any
political party shall be disqualified for being a member of the House if he joins any political party after
such election.
3. A nominated member of a House shall be disqualified for being a member of the House if he joins any
political party after the expiry of six months from the date on which he takes his seat after complying
with the requirements of article 99 or, as the case may be, article 188.
Paragraph 4: Disqualification on ground of defection not to apply in case of merger.—
1. A member of a House shall not be disqualified under sub paragraph (1) of paragraph 2 where his original
political party merges with another political party and he claims that he and any other members of his
original political party—
a) have become members of such other political party or, as the case may be, of a new political
party formed by such merger; or
b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political party or group, as the case may be,
shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph
2 and to be his original political party for the purposes of this sub-paragraph.
1. For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a
member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the
members of the legislature party concerned have agreed to such merger
Paragraph 3: Disqualification on ground of defection not to apply in case of split.— *
Where a member of a House makes a claim that he and any other members of his legislature party constitute the
group representing a faction which has arisen as a result of a split in his original political party and such group
consists of not less than one-third of the members of such legislature party,--
a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground–
i. that he has voluntarily given up his membership of his original political party; or
ii. that he has voted or abstained from voting in such House contrary to any direction issued by
such party or by any person or authority authorised by it in that behalf without obtaining the
prior permission of such party, person or authority and such voting or abstention has not been
condoned by such party, person or authority within fifteen days from the date of such voting or
abstention; and
b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for
the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of
this paragraph.
* Omitted by the Constitution (Ninety-first Amendment) Act, 2003
Exemption for Speaker/Chairman
Paragraph 5: Exemption.—
Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker
or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman
or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the
Legislative Assembly of a State, shall not be disqualified under this Schedule,—
a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party
to which he belonged immediately before such election and does not, so long as he continues to hold
such office thereafter, rejoin that political party or become a member of another political party; or
b) if he, having given up by reason of his election to such office his membership of the political party to
which he belonged immediately before such election, rejoins such political party after he ceases to hold
such office.
Adjudicating Authority
Paragraph 6: Decision on questions as to disqualification on ground of defection.—
1. If any question arises as to whether a member of a House has become subject to disqualification under
this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the
Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has
become subject to such disqualification, the question shall be referred for the decision of such member of the
House as the House may elect in this behalf and his decision shall be final.
2. All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to
disqualification of a member of a House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a
State within the meaning of article 212.
Bar on Courts
Article 122. Courts not to inquire into proceedings of Parliament
(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating
procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction
of any court in respect of the exercise by him of those powers.
• Similar provision u/a. 212 for State Legislature
Paragraph 7: Bar of jurisdiction of courts.—
Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter
connected with the disqualification of a member of a House under this Schedule
Disqualification of Legislators
• Article 102. Disqualifications for membership.-
…(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified
under the Tenth Schedule.
• Article 191. Disqualifications for membership.-
…(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a
State if he is so disqualified under the Tenth Schedule.
Article 75: Other provisions as to Ministers
• (1B) A member of either House of Parliament belonging to any political party who is disqualified for
being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be
appointed as a Minister under clause (1) for duration of the period commencing from the date of his
disqualification till the date on which the term of his office as such member would expire or where
he contests any election to either House of Parliament before the expiry of such period, till the date
on which he is declared elected, whichever is earlier.]
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412
• By the Constitution (Fifty-Second Amendment) Act, 1985, the Tenth Schedule was inserted in the
Constitution
• provided for disqualification of a Member of either House of Parliament or of a State
Legislature found to have defected from continuing as a Member of the House
• Provisions of the 10th Schedule:
• Paragraph 2 – Grounds for disqualification
• Paragraph 6(1)- Adjudicatory role of the Speaker/Chairman
• Paragraph 7- No Judicial Review
• Grounds of challenge:
• Non-compliance of the procedural requirements of the Proviso to A. 368(2)
• Destructive of a basic structure of the Constitution:
• Disqualification for defection is violative of the fundamental values and principles
under-lying parliamentary democracy
• Violates an elective representative's freedom of speech, right to dissent and
freedom of conscience
• Takes away judicial review
• Held:
• Objective of 10th Schedule is to curb political defections motivated by lure of office and
therefore, endangers democracy
• Para 6:
• These provisions in the Tenth Schedule give recognition to the role of political parties
in the political process. A political party goes before the electorate with a particular
programme and it sets up candidates at the election on the basis of such programme.
A person who gets elected as a candidate set up by a political party is so elected on
the basis of the programme of that political party. The provisions of Paragraph 2(1)
(a) proceed on the premise that political propriety and morality demand that if such
a person, after the election, changes his affiliation and leaves and political party which
had set him up as a candidate at the election, then he should give up his Membership
of the legislature and go back before the electorate. The same yard stick is applied to
a person who is elected as an Independent candidate and wishes to join a political
party after the election.
• Para 19:
• Parliamentary democracy envisages that matters involving implementation of policies
of the Government should be discussed by the elected representatives of the people.
Debate, discussion and persuasion are, therefor, the means and essence of the
democratic process. During the debates the Members put forward different points of
view. Members belonging to the same political party may also have, and may give
expression to, differences of opinion on a matter. Not unoften the view expressed by
the Members in the House have resulted in substantial modification, and even the
withdrawal, of the proposals under consideration. Debate and expression of different
points of view, thus, serve an essential and healthy purpose in the functioning of
Parliamentary democracy. At times such an expression of views during the debate in
the House may lead to voting or abstinence from voting in the House otherwise than
on party lines.
• Accordingly, we hold:
• that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not
suffer from the vice of subverting democratic rights of elected Members of Parliament and the
Legislatures of the States. It does not violate their freedom of speech, freedom of vote and
conscience as contended.
• The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194
of the Constitution.
• The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary
democracy by curbing unprincipled and unethical political defections.
• The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph
7, violate the basic structure of the Constitution in they affect the democratic rights of elected
Members and, therefore, of the principles of Parliamentary democracy is unsound and is
rejected.
• Does the concept of 'finality' by itself, excludes Courts' jurisdiction. Does the word "final“
render the decision of the Speaker immune from Judicial Review?
• Para 41:
• The finality clause in paragraph 6 does not completely exclude the jurisdiction of the
courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect
of limiting the scope of the jurisdiction. The principle that is applied by the courts is
that in spite of a finality clause it is open to the court to examine whether the action of
the authority under challenge is ultra vires the powers conferred on the said authority.
Such an action can be ultra vires for the reason that it is in contravention of a
mandatory provision of the law conferring on the authority the power to take such an
action. It will also be ultra vires the powers conferred on the authority if it is vitiated
by mala fides or is colourable exercise of power based on extraneous and irrelevant
considerations. While exercising their certiorari jurisdiction, the courts have applied
the test whether the impugned action falls within the jurisdiction of the authority taking
the action or it falls outside such jurisdiction.
• Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect
• excludes the jurisdiction of all Courts, including the Supreme Court and High Courts
• has the effect of curtailing judicial review
• brings about a change in the operation and effect of Articles 136, 226 and 227 of the
Constitution
• The amendment would require ratification in accordance with the proviso to A. 368(2)
• Therefore, Para 7 is invalid for want of ratification and violative of basic structure
i.e. Judicial Review
Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270
• Background:
• 14th Legislative Assembly Elections of the State of Uttar Pradesh were held in February 2002
• None of the political parties secured the requisite majority, a coalition Government was formed,
headed by Ms. Mayawati, leader of the Bahujan Samaj Party
• In 2003, the cabinet took a unanimous decision for recommending the dissolution of the
Assembly
• On 27.8.2003, 13 MLAs, elected to the Assembly on tickets of B.S.P., met the Governor and
requested him to invite the leader of the Samajwadi Party, Mulayam Singh Yadav, to form the
Government
• On 29.8.2003, the Governor invited the leader of the Samajwadi Party, Mr. Mulayam Singh
Yadav to form the Government and gave him a time of two weeks to prove his majority in the
Assembly
• On 4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a petition before
the Speaker praying for disqualification of the 13 B.S.P. M.L.As. who had proclaimed support
to Mulayam Singh Yadav before the Governor
• On 06.09.2003, a request was made by 37 M.L.As., (on behalf of 40 M.L.As. elected on B.S.P. tickets),
requesting the Speaker to recognise a split in B.S.P.
• one third of the Members of the B.S.P. legislature party consisting of 109 legislators, had in a
body separated from the Party on 26.8.2003
• The Speaker took up the said application for recognition of a split
• Decided that the 37 Members who had signed the application presented to him had in fact signed
it since they were physically present before him and accepted the split
• Justiciability of Speaker’s actions?
• The order of the Speaker does not enjoy the full immunity in terms of paragraph 6(1) of the
Tenth Schedule to the Constitution
• Even if it did, the power of judicial review recognised in the court in Kihoto Hollohan
is sufficient to warrant interference with the order in question.
• The failure on the part of the Speaker to decide the application seeking a disqualification
cannot be said to be merely in the realm of procedure
• It goes against the very constitutional scheme of adjudication contemplated by the
Tenth Schedule read in the context of A. 102 and 191
• The 13 MLAs sought to be disqualified had not established a defence or answer to the charge
of defection under paragraph 2 on the basis of paragraph 3 of the Tenth Schedule.
• The very giving of a letter to the Governor requesting him to call the leader of the
opposition party to form a Government by them itself would amount to their voluntarily
giving up the membership of their original political party within the meaning of
paragraph 2 of the Tenth Schedule
• If so, the conclusion is irresistible that the 13 members of BSP who met the Governor on
27.8.2003 stand disqualified in terms of A. 191(2) of the Constitution r/w. paragraph 2 of the
Tenth Schedule
Kesham Meghachandra Singh v. Hon’ble Speaker Manipur, MANU/SC/0062/2020
• Background:
• After 2017 elections for the 11th Manipur Legislative Assembly none of the political parties
were able to secure a majority in the 60 seat Legislative Assembly
• The Indian National Congress emerged as the single largest party with 28 seats, the Bharatiya
Janata Party coming second with 21 seats
• An elected candidate set up by the Congress Party on 12.03.2017, immediately after the
declaration of the results, along with various BJP members met the Governor of the State of
Manipur in order to stake a claim for forming a BJP-led Government (later followed by 7 other
Congress MLAs)
• Role of the Speaker:
• The Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide
disqualification petitions within a reasonable period
• What is reasonable will depend on the facts of each case, but absent exceptional
circumstances for which there is good reason, a period of three months from the
date on which the petition is filed is the outer limit within which disqualification
petitions filed before the Speaker must be decided if the constitutional objective
of the Tenth Schedule is to be adhered to
• Since the life of the legislative assembly comes to an end only in March 2022, the only relief
that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be
directed to decide the disqualification petitions pending before him within a period of four
weeks from the date on which this judgment is intimated to him
• Para 30:
• It is time that Parliament have a rethink on whether disqualification petitions ought to be
entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to
a particular political party either de jure or de facto. Parliament may seriously consider
amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative
Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth
Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired
Chief Justice of a High Court, or some other outside independent mechanism to ensure that
such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions
contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy.

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Federalism

Understanding the concept:

• Eg: S. 3 & 4, Indian Penal Code, 1860

Power of the Parliament to legislate

A. 249 A. 250 A. 252

Article 368 - Before Constitution (Twenty-Fourth Amendment) Act, 1971

Types of Majority Required for Amendment of Constitution

• Further limitations on Gubernatorial power to promulgate ordinances u/a. 213:

Union and State Executive

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