25‐02‐2019

Presented by: Dr. Atmaram Shelke

 State –International Law- ‘an independent political

entity’

 Police state-A) Law and order state/police state-1)

Defending Country-Internal /External 2) Law and
order 3) Dispensing justice 4) Collection of tax.

 -Change is philosophy: Divine origin /Patriarchal and

Matriarchal /Historical theory /Force theory
 Status Quo = State of -activism
 B) Welfare-(Social Contract- Sovereignty)-
 -1) Protector-(More than defed.) 2)Provider 3)
Entrepreneur 4)Economic Controller 5) Arbiter
 ***
 - Parens patriae

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 In order to perform function :

 In welfare state- a) There was need to adopt new
philosophy/desirable goals- USA+ India

 b) There was need to establish/create organs- US+India

 c) Function and mutual -relations between organs-powers &

limit -power.

 d) Limited governance: Since the welfare state-trustee of

power of people –Human right-birth right= there was need to
protect basic rights.

 Need to form: Confederation or need of united- India+pak+USA

 =Legal System: 1) Law Governing state-supreme lex/ organic

law 2) Law governing human conduct

 CONSTITUTION
 Broader Sense Narrow sense
 (UK) India + US
 Collection of rules Selection of rules
 (Legal –binding-DP/Preamble)
 Legal Non-Legal -By sovereign
 Binding Non-binding -behalf (rep.)

 Parliament Act, 1911/149 (Conventions) Constituent assembly

 Crown Proceedings Act, 1947 -Queen shall not refuse Documented
 Human Rights Act, 1998 assent to bill (UK) Supreme Lex
 Decisions of the courts PM-Should belongs to commons –UK -Difficult to Amend
Senior most judge CJ (124)-India -Limitations
PM-leader of Majority-Art. 75(1)
-President bound –advice (UK+ India)Art. 74/-42-76
- Leader of opposition -10% Majority

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 Wade & Phillips: The Constitution of a country seeks to

establish its fundamental or basic or apex organs of the
government and administration, describe their structure,
composition, powers and principle functions, define the
inter-relationship of these organs with one another and
regulate their relationship with the people, more particularly
the political relationship.

 Constitution is a document:
 A) Establishing fundamental organs: Govt. & administration-
 B) Descries-structure, composition, powers and principle
function-Comp-Art. 79/80/124 etc.
 C) Defines-inter-relationship=organs-(check and balance)=
People

 Constitutionalism???

 1) According to form: Codification- Written or

unwritten

 2) According method of amendment- Rigid or

flexible

 3) According to method of division of power-

Federal, Unitary or quasi –federal


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 Dicey-Introduction to the Law of the Constitution, -1885

 i) Supremacy of law-opposed to the influence of arbitrary
power and wide discretionary power.
 “Wherever there is discretion, there is room for arbitrariness

…”
-Wade- “Every govt. must subject to law not law sub. to govt..”
 -discretionary- must mean insecurity for legal freedom

 ***

 ii) Equality before law- England –criticized –French- Droit

Administratif
 Lord Denning – ‘our English law does not allow a public
officer to shelter behind a droit administratif.
 ** **** *****
 iii) Predominance of legal spirit- judge made law- “Habeas
Corpus –declares no principle and define no rights, but they
are for practical purposes worth a hundred constitutional
articles guaranteeing individual liberty” Only declaration –
little value. * **

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 Criticism-
 a) Paton-Jurisprudence- Principles –adopted in English System- result of “Political
struggle” and not “logical deductions from a Rule of Law”

 b) Fail to distinguished arbitrary powers from discretionary powers

 C) France Administrative Actions were not immune from the judicial scrutiny-
Wade & Forsyth –Adm. Law (2005)
 (Tribunal- Counseil d’Etat- appeal)

 d) Wade & Forsyth –Adm. Law (2005)- ‘The King can do no wrong’ –not correct to
say that there was equality before law in stricto sensu even in England
 -Ignored –immunities given to King/ Parliamentarian

 Supremacy of law over parliament –UK???

 ****

 Preamble –Source of Constitution/Justice, Liberty and Equality

 Part-III-Art. 13-Art. 21-procedure of law/14

 ****
 -245(1); -sub. Provision –parliament –whole or part of territory

 -Govt. and public- subject to –ordinary court

 -Rule of law Basic structure- Indira Nehru Gandhi v. Raj- 1975

 -Powerful judiciary- judicial review –basic structure-L. Chandra

Kumar case-1997 (2) SCR 1186

 Amending process-368-Basic Structure- absolute supremacy of law

 ***

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 Habeas Corpus Case- A.D.M. Jabalpur v.

Shivakant Shukla (1976) 2 SCC 521
 (Five Judges: Ray, Khanna, Beg, Chandrachud,
Bhagwati)
 *
 **
 -Emergency– ‘internal disturbance’-Sups. Art.
19-Art. 358

 Leader of opposite parties were arrest –MISA-

1971

 -Preventive + Punitive arrest

 -Non disclose –grounds

 June 25, 1975, Art.352(2) of the Constitution

declared that a grave emergency exists whereby
the security of India is threatened by internal
disturbances.

 Suspension of Fundamental Rights:

 Art. 359 (1) the President declared -right of any
person - to move any court for the enforcement
of the rights – Art.-14, 21, 22 - pending in any
court for the enforcement of the above
mentioned rights shall remain suspended for the
period during- emergency

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 The President -amend -ordinance- No. I and 7 of 1975 -

introducing a …
 =new section 16A-removed-right to know-
grounds/satisfaction-final/Made-communication/disclosure-
material etc- containing grounds-illegal.
 ****
 Exclusion of Natural and Common Law:
 By the same Act a new section 18 was also inserted with effect
from June 25, 1975-excluded –application of natural or common
law.

 38 & 39 amend-Constitution renders the satisfaction of the

President or the Governor in the relevant Articles final and
conclusive and to be beyond any question in any court on any
ground.

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 Retrospective effect: All the amendments made by the (ordinance

were given retrospective effect for the purpose of validating all
acts done previously.

 Challenged -High Courts: The respondents detained under S. 3

of the maintenance- MISA, -1975 challenged in several High
Courts-the vires of the ordinance issued on June 27, 1975, by
the President of India as unconstitutional and inoperative in law

 And prayed for:

 (a) the setting aside of the said order and

 (b) for directing their release forthwith.

 In some cases, they challenged the validity of the 38 & 39

constitution Amendment Acts.

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 High courts broadly took the view that:

 Writ: H.C. –Allahabad, Andhra Pradesh, Karnataka, Madhya Pradesh, Punjab:-
 **
 (a) Despite the Presidential order it is open to the detenus to
challenge their detention on the ground:

 Court can issue writ/ entertained matter:

 1) Detained other than compliance with law or
 2) Under Circumstances which pointed to Mala Fides.
 3) Ultra vires-authority not empowered to pass-not according to
law/
 4) Irrelevant consideration/
 5) Non-application of mind etc.

 Emergency could not prevent person from approaching the

court.
 Appeal to SC/ Accepting the States' appeals, some by certificates
granted by the High Court-special leave.

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 Arguments (Additional Solicitor General):

 Art. 21 is sole repository-Life and personal liberty.

 -Right to move suspended (359(1))-No locus standi-must be dismissed-without

any further inquiry.

 Non- disclosure of the ground –permitted under MISA- subjective satisfaction.

 Section 16 A (9)-Constitutes -rule of evidence-no court can ask for production of

file relating to detenu / or disclosure of grounds/ No adverse inference /
 16A(9)-permits disclosure to court-Limited to: –

 A) Whether-order-made-in exercise –power-by law.

 B) If such law-pre-emergency-valid law.
 C) whether authority –duly empowered.
 D) whether person detained named-order.
 E) Whether –stated purpose-comes within –law.
 F) Have the procedure (under law) followed.
 G) Grounds furnished (if 16A-Not applied).
 (Facts, need etc.?? Case to case basis- analysis??//irrelevant Consideration/Mala
fide intention/Non- application of mind… can not be challenged before court...)

 On behalf of respondent: Detenues…

1) Object of 359(1) is to give free hand to legislatures –they can make laws in
violation of fundamental rights. –not to executives

 2) Constitution divides function:-executive, judicial, legislatures-executive

function shall be discharged consistence with valid laws (legislature) and
judicial orders/ susp. F.R. does not give them any power to flout law (MISA).

 3) 359(1)-may remove fetters imposed by part-III-cannot remove –fetters

arising -rule of law or checks and balance=principle of separation of power.

 4) The obligation cast on executive: to act accordance with law does not
arise-Article--from inherent compulsion arising from the principles of Rule
of law-which central and basic feature of constitution.

 The suspension of Art. 21-does not automatically entail the suspen. of rule
of law-even during the emergency-rule of law is not and cannot be
suspended.

 5) Presidential order u/Art. 359(1)-may bar -Art-32 SC-Cannot bar-226-

enforcemnt of rights-other than F.R.

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 6) Common law rights to personal liberty-can be enforced through writ-226-

despite presidential order u/s-Art. 359(1)-similarly-contractual rights, natural
rights, and non-Fundamental constitutional rights -can be enforced-F.R.- ‘any
other purpose’.
 (Non-fundamental constitutional rights-(73-256, 265, 361(3))-
 73-Extent of Executive powers of union/ 256-State-excutive power as per law/
265-Tax without law/ 300A/ 311 constitutional non-fundamental rights/)

 7) The essence of inquiry in habeas corpus petition:- is –whether-detention is

justified by law or is ultra vires-the law.-such inquiry is not shut out by the
suspension of right to enforce F.R.

 8) If presidential order is construed as a bar to the maintainability of writ-U/A-

226-that Article shall have been amended -without a proper and valid
constitutional amendment Art. 226-cannot be barred.

 9) Article 21-not sole repository of right to life/personal liberty. There is no

authority for proposition that –Conferment of F.R.-by Part-III-corresponding-pre-
existing rights merged with F.R. and with suspension of F.R. –corresponding pre-
existing rights also got suspended.

 10) Suspension of right to enforce Art. 21-cannot put a citizen in a worse position
than in the pre-constitutional period. Pre- constitutional-right in rem. Pre-
constitutional-right not to be detained, save under the authority of law.


 11) Civil liberty or personal liberty-not positive rights-negative

concept- constitutes an area of free action because no law exists
-curtailing it or authorizing its curtailment.

 12) Section 16A(9)-MISA-unconstitutional as it encroaches upon

H.C. power-U/A-226-by creating presumption that the grounds
on which order is made, information, materials on which
grounds are based –shall be treated as confidential.

 13) Dismissal of writ –on the ground –presidential order –U/A

359(1)-would necessarily mean that during the emergency-no
person has any right to life or personal liberty and

 14) If the detenus are denied any forum for –redress-would open
executive-to whip, starve, keep them in solitary confinement and
even to shoot them. The presidential order cannot permit the
reduction of Indian citizens into slaves.

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 Issue: 1: Maintainability of petition for Habeas Corpus-during emergency?

 (Art-14, 19, 21 and 22-Susp-by presidential Order.)

 Per Ray-Community may require govt. control over activities of the individuals:
 Court of law in normal time-competent to weigh –competing claims-individuals
and govt. –they (court) –not equipped- (emergency- recognized-war and account
of security of country) to measure-community may require govt. control over
activities of the individuals.

 Liberty-confined and controlled by law-whether common or statute/it is regulated

freedom/ It is not abstract or absolute freedom.

 Emergency – extraordinary situation-Limited period.

 Liberty itself is gift of –Law-forfeited or abridged.


 No person-locus standi -(359(1))-226

 If there is a power, extreme examples will neither add to the power or rob the
same.

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 Fundamental law found in constitution-paramount.

 Suspended- No right –time being-object-avoid -judicial

intervention.
 No Locus standi- detenu –other cannot claim.

 16 (9)- intention of parliament is clear- Presumption of validity.

 Criticism:-
 (Parliament-16(9) v. 226 of the constitution of India)
 (Right –Constitution –suspension- other rights.)
 -any other purpose-legal right/common law- v. Law made by
parliament-245)

 J. Chandrachud-similar views.

 Bhagwati J.- 1975-emergency was not challenged-If emergency

is valid- we- equally presume –genuine and give full effect to it ,
without any hesitation or reservation.

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 J. Beg:-What restriction-during national emergency (in the interest of

national security)-matter of policy-outside the sphere of judicial
determination.

 Constitution-determined-sphere-executive-with meticulous care and

precision.
 Judicial function –wider –interpreting-14/19/21 /22-suspended –
suspension -does not and cannot mean retention under disguise.

 Habeas Corpus-also-deprivation of liberty-object of suspension.

 -the intention of the parliament seems –clear and enough –by –provision
16A (including inquiry)

 Detention order-made conclusive.

 If such order is shown to exist –in response to the Habeas Corpus

Petition- H.C. cannot inquire –its validity –mala fides-non- compliance
with provisions –MISA.

 ‘right to move..’ - wide enough- to include

all claims-in any court.

 J. Bhagawati- protection of personal liberty

and supremacy of law-which sustain it must
be governed by the constitution itself.

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 J. Khanna (dissenting):-

 Art. 21 cannot be claimed –sole repository of –life and

liberty.

 Life and personal liberty-most precious right-in civilized

society-governed –by rule of law.

 Effect of suspension-court would –no- reliance can be

placed-Art. 21-for obtaining relief.

 -There is no antithesis-between-power-deten.-power of
courts only to ensure –detaining authority acts in
accordance with the law-preventive detention.
 *

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 Issue -2: Art. 21 sole repository/ statutory right/ common law / natural law-
( Cr. P. C.-Torts):

 J. Ray :-Law –state made law-

 Art. 21 is rule of law-regarding right of life and liberty- Constitution

 -no other rule of law can have separate existence as a distinct right.

 -Negative language –imposes limitations on power of state-corresponding

guarantee of the individual-Limitations and guarantee are complementary.

 Pre-Constitutional rights-elevated to F.R. –Source-Part-III

 Pre-constitutional right- shall grouped together as a F.R.
 -otherwise Art. 359(1)-will be - exercise in futility.

 -The common law has–no separate existence under Constitution.



 -therefore –Art. 21 is sole repository –life & liberty-against state.

 - Further-Art. 21-not a common law- no common law right –corresponds to
F.R. exist as a distinct right apart from –F.R.

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 J. Khanna (dissenting)-Art. 21 –cannot sole

repository-Most precious rights –civilized
societies.

 -Sanctity of life and liberty-not new when

constitution drafted-not –-deprived---was not
the gift of the constitution.

 It was necessary corollary of concept relating to

sanctity of life and liberty- it existed and enforce
–before –constitution.
 ****

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 Joseph Raz:
 Certain procedural values inseparable from the
law: internal morality;

 F. A. Hayek-ideal of the rule of law: ‘stripped of

all technicalities this means that government in
all its actions is bound by rules fixed and
announced beforehand—rules which make it
possible to foresee with fair certainty -how the
authority will use its coercive powers in given
circumstances, and to plan one’s individual
affairs on the basis of this knowledge’.


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 1 959 the International Congress of Jurists

 -meeting in New Delhi gave official blessing to a similar perversion of
the doctrine of the rule of law.

 “The function of the legislature in a free society under the Rule of Law is
to create and maintain the conditions which will uphold the dignity of
man as an individual. This dignity requires not only the recognition of
his civil and political rights but also the establishment of the social,
economic, educational and cultural conditions which are essential to the
full development of his personality .

 Joseph Raz-
 Broadest sense-people should obey the law and be ruled by it.

 Narrow-political and legal theory- government shall be ruled by the law

and subject to it./‘government by law and not by men’.


 (1 ) All laws should be prospective, open, and clear:



 (2) Laws should be relatively stable...

 (3) The making of particular laws (particular legal orders) should be guided
by open, stable, clear, and general rules.

 4) The independence of the judiciary must be guaranteed.

 (5) The principles of natural justice must be observed.

 (6) The courts should have review powers over the implementation of the
other principles.

 (7 ) The courts should be easily accessible.

 (8) The discretion of the crime-preventing agencies should not be allowed to

pervert the law.
 **

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 1) All laws should be prospective, open, and clear:

 * *** ****
 (20(1)) :convicted of any offence/Penalty
◦ Harla v. State of Rajastan AIR 1951 SC 467 (Jaipur Opium Act, 1923)
◦ Delegated legislation -secrete process-Public or representative of public have no access-
can affect-lives, liberty or property.
◦ -Publication of some reasonable sort is essential.
◦ *****
 Clear:- Shreya Singhal vs Union of India -2015-66A-vague… “annoying,” “grossly
offensive,” “menacing,”, “causing annoyance.”-open to misuse-arbitrary

 Prospective- guide (Law is not always common sense- )

 (2) Laws should be relatively stable...

 -Short term and long term planning… business..
 ** ****
 (3) The making of particular laws (particular legal orders) should be guided by
open, stable, clear, and general rules.

 (Executive laws/Constitution –broad rules –guiding -institutions)

 Preamble- F.R.-key to open mind of maker.. D.P….etc..
 Democracy/Secularism/Justice-Equality/discrimination-racial/
 Re The Delhi Laws1951 AIR 332
 *

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 Independence of Judiciary-Under Constitution:

 1) Security of Tenure-Art. 124(2)/4)/(Art. 217(1)

 Ad hoc Judges- Art. 127-Quorum /128 Additional-224-(president- increase in
the business)

 2) Fixed Salary-Art. 125-Sch. II. -Reduction-Charged on Consolidated fund-Art.

112(3) The Supreme Court Judges (Salaries and Conditions of Service) Act, 1958
 /THE HIGH COURT JUDGES (SALARIES AND CONDITIONS OF SERVICES) ACT, 1954
 3) Parliament cannot curtail power of SC-Art.138
 4) Prohibition of discussion in by legislative bodies about conduct of judge-Art.
121
 *****
 5) Power to punish for its contempt- Art. 129/215
 6) Separation of judiciary from executive –Art. 50


 7) Judges are appointed in consultation-Art. 124(2)

 -S.P. Gupta v. Union 1981 Supp. SCC 87 /Concurrence
 -Supreme Court Advocates-on-Record Association & Others v. Union of India
(1993) 4 SCC 441
-Special Reference no. 1 of 1998-
 -Supreme Court Advocates-on-Record -Association and another V. Union of
India 2015 ***

 8) Prohibition of practice after Retirement -124(7) Re- employment

 -Palaniswamy Sathasivam - Governor of Kerala-2014/
 (Scrapped a second FIR or Police Complaint against Amit Shah in a fake
encounter killing case in Gujarat)

 (-M. Fathima Beevi-as Governor in Tamil Nadu (1997–2001)

 -M.C. Chagla-US-Abs./

 -Subba Rao-election president –lost/

 -K.S. Hegde-MP-speaker-1977.

 -Santosh Hegde -Advocate General - 1984 /additional Solicitor General

of the union of India- 1989 /SC-1999/ Lokayukta)
 (National Human Right Commission/Law Commissions etc. )

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Maneka Gandhi- Section 10-1978/Kraipak-1969

a) Nemo debet esse judex in propria causa: No man shall be a judge in his own
cause;
 Pecuniary Bias

 Personal Bias

 Official or bias as to subject-matter.

 b) Audi Alteram Partem:

 a) Notice –
 b) Hearing.
 1) Hear both side
 2) – One must not- hear one side in absence of other (evidences shall be
received in the presence of the concerned party)
 3) - One who decides must hear- Gullapalli Nageswara Rao v. A.P.S.R.T.C.
AIR 1959 SC 308
 Oral Hearing:-
 4) - One party is given oral hearing same shall be afford to other
 (Opportunity to cross examine)
 5) Disclosure of the Material

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 (6) The courts should have review powers over the

implementation of the other principles.-32/226/227-Basic
Structure-S.P. Sampath Kumar/L. Chandra Kumar vs Union Of
India And Others 1997 (2) SCR 1186

 (7 ) The courts should be easily accessible.

 -32/226/227/136-PIL- Majdur kaamgar sabha v Abdul bhai
Faizulla bhai - 1976 ; S.P.Gupta-Sunil Batra vs Delhi
Administration on 20 December, 1979

 (8) The discretion of the crime-preventing agencies should not

be allowed to pervert the law.-
◦ Habeas Corpus/Mandamus
 Judicial Review- Mala fide; irrelevant consideration; ultra-virus
etc; colourable exercise of power; unreasonableness.
 * ** *** **** *****

 Separation of powers-
 Three organs-

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 Aristotle/ John Locke and James Harrington:

 Montesquieu, described these functions as
legislative, executive and judicial.

 Montesquieu- ‘Esprit des Lois’ –The Spirit of Laws-

1748-formulated-systematically.
 Three Powers- separated -Liberty.

 Powers: legislature, executive and judiciary

 The three organs should be separate, distinct and

sovereign in its own sphere so that one does not
trespass the territory of the other.

 Wade and Phillips:

 A) That the same persons should not form part of more than one
of the three organs of government.
 Minister-part-parliament
 (US-Ministers/President-election/)
 *

 b. That one organ of government should not control or interfere

with the work of another.
 ..Ministers responsible to parliament -75(3)
 (US-ministers –not members-responsible)

 c. That one organ of government should not exercise the

functions of another.

 (US-Executive-votes/India-Court-CBI-Investigation/pardoning
powers)

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 USA-
 Art. I-Legislative –Congress
 Art. II- Executive –President
 Art. III-Judicial Powers- SC-sub. courts.

 (India-Art. 53(1)/154(1)-no other express provision-

President/ Governor)

 -245(1); -sub. Provision –parliament –whole or part of territory-

state legislature-whole or part of the state.
 246-division of power –within leg. Org. (Lists)

 Art. 50-Judicial power and executive powers- in the public

services of the State
 *

 ESSENCE OF DEMOCRACY –protection of rights-

 balances and counter balances exists among the three organs of the
government to ensure a strong nurtured democratic system.

 Lord Acton: “Power corrupts and absolute power tends to corrupt

absolutely”.

 The three organs can practically not be segregated into three watertight
compartments due to their interdependence on each other to ensure
efficacious governance.
 Mutual respect- to achieve welfare of people

 (Co-operative federalism =co-operative separation of powers)

 Work in harmony instead of giving primacy to only one of the organs.

 Bestowing absolute power is anathema to democracy.

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 Ram Jawaya Kapoor v. State of Punjab [A.I.R. 1955

S.C. 549]
 -Punjab- school-book-by private publishers-with
approval of Educational department –alternative-
books-choice of –headmasters.

 May-1950-control by gov. –printing and publication-

resolutions-brought –of govt.
 monopoly
 1952-notification of Education Department
 –Excluded publishers –invited author and other -5%
Royalty-monopoly to publish.
 Notification –Article -32

 Contention of petitioner:-
 1) Executives of state –wholly incompetent,
without any legislative sanction to engage in any
business or trade-without jurisdiction –illegal

 2) State could create monopoly- by legislative

action –which should confirm to the
requirements of 19(6).

 3) It was not open to govt. to deprive the

petitioner their interest in any business, which
amounts to property without authority of law and
without payment of compensation as it required
by Art. 31.

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 Mr. Pathak (behalf of petitioner): Government

function in three categories-Executive- to
execute or supervise the enforcement.

 The legislature must first enact a measure –which

executive then can carry out.

 Analogy is drawn with help of -73/162= Extent

of executive power:
 -Sub. Provisions of this constitution executive
powers of state extends to– state legislative
powers…proviso- parliament.


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 –

 Justice Malik- Difficult to define-executive

powers -but=means –as given by the
constitution or is inherent, implied or incidental.
 *
 It must include all powers-to achieve object of
the constitution –more than executing law.

According to J. Malik- state has right to manage

property-or carry –business –as any citizen.

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 Court –specific legislation –necessary –

additional powers/necessary to encroach
upon private rights

 Court-Present case-printing expenses –

shown in financial budget-no additional
power required –

 Held:
 Fundamental Rights –Executive (Liberty –object of
separation -may be protected )

 (Text book –may be discontinued-school or authority)

 Customer –no fundament right to keep customer

forever.

 No fundamental rights- Art. 19(g)- Mere chance or

prospect of having particular customer-no
compensation -paid

 Action may be bad-but not against -19

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 ______________________

 J. A.N. Ray, H.R. Khanna, K.K. Mathew, M.H. Beg, Y.V. Chandrachud

 Art. 329 -=S. 100 Representation of the People Act, 1951

 HC-Appeal-held- She Obtained Assistance from Gazetted officers-UP-

corrupt practice-disqualified -6 years.

 Other five grounds-

 1) Assistance of Air force –arranging flights and helicopters
 2) Distributed clothes and liquor to voters
 3) She and agent- made appeal to religious symbols of cow and calf
 4) Procure vehicle for conveyance of voter to polling station
 5) Expenditure in violation of law

 During pendency –amendment and retrospective effect-39th Amendment

 Art. 71 –election of president/vice president =SC/Parliament
 and 329A and election laws were put up in 9th Schedule.

 329A-Prime Minister and Speaker -Election valid –irrespective of any

judgment- retrospective effect

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 Clause -6 -329 A- shall precedence over other part of the constitution

 Challenged validity of 39th Amendment –Basic structure

 Shanti Bhushan:
 1)-Amendment –against – institutional pattern adopted by constitution -
basic structure

 2) Separation of power –basic structure- judicial power (judgment –

vitiated-not pardoning )-

 3) Function of legislature –legislate –not to decide disputes between

parties.

 4) Democracy essential feature of the constitution-free and fair election

 5) Equality –essential feature –republican constitution-election laws

above -equality-Prime M. & speaker –Above the law-classification

 6) 39 Amend. –Prime M. & speaker –Above the law=Rule of law and

judicial review –balance upset-basic features= organic balance upset by
eroding authority of SC

 Another Ground 329A-number of members of both

houses were detained under preventive detention
order- without grounds-important leaders of house
were prevented from attending.
 (Art. 359 (Susp.FR) does not itself –make detention
legal)

 -Holding session and transacting business-

unconstitutional.

 =Power of amend- implied restriction –with

preamble (Political Justice)–democratic way of life
through parliamentary institutions based on free and
fair election basic feature

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 Attorney General-
 No free and fair election without Judicial Review-not true..
 Election –law –policy –how much shall be govern by ordinary law.

 Exclusion of judicial review-not per se exclusion of right of

equality –parliament –election are right or wrong

 -Free & fair election itself –does not postulate that –there –must
be constitutional provision –tribunal
 -One election does –not alter –character of democracy

 Rule of law is not a basic structure

 A.K. Sen (appeared -Gandhi)

 -Effect of invalidation of judgment is –change in law-not –
encroachment of judicial review.
 *
 -Change in law –appeal –should -applied by appellate court..

 -Separation of power-as applied in USA not applied

Constituent Power=There is no question of

separation of powers =when constituent
authority exercises powers of any of the
authorities

-Constituent powers are independent of fetters

imposed by the separation of powers.

-Constituent power=crate organs and

distribute powers- “super power”

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 Judgment-
 Art. 329A- clause-4:- Determination of disputes –falls- outside
of the scope of 368.

 -J. Chandrachud- court –interpretation –not policy-election

laws..

 Preamble- Declarations- (useful…to decide –basic structure)

 Democracy and free and fair election –basic features-Judging

dispute without ascertaining the facts

 Rule of law- Basic structure-Certain person –beyond judicial

review.

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 Justice Ray- Changing validity of judgment –changing

definition of corrupt practices-not encroachment on
Judicial review power=

 Validating election of appellant's election –not a

change in law- (clause -4-329A)-offended rule of
law.

 J. Khanna-Rule of law- Decisions shall be made based

on known principles and rules-citizen should know
where he is. Predictable- (Raz-prin.-1-prospective
effect…)

 -There cannot be free election –without –forum to

decide.

 (Basic Structures
 -Rule of Law
 -Separation of power
 -Free and fair election)

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a) Executives:
 Indian Constitution allocates executive powers to the President and
Governors
 (Article 53 (1) - Executive power of the Union and Article 154 (1),

 Certain legislative powers (Articles 123, 213 - Power of Governor -

Ordinances during recess of Legislature and 356-emergecy-failure of
constitution ---)
 Judicial = Pardoning

b) legislature exercises
certain judicial functions (Articles 105- Powers, privileges and 194) and
 Certain judicial powers (Articles 103- Decision on questions as to
disqualifications of members
 and 192- Decision on questions as to disqualifications of members-state).

c) Judiciary exercises
Few legislative and executive functions (Articles 145, 146-officers/ servant-
appointment conditions etc-chief Justice /state- 229, 227 ETC.).

However the judiciary is made separate from the executive in the public services
of the State (Article 50).

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