Table of Contents

Introduction to the Subject – Constitutional Law I............................................................... 7

Module I – Introduction ...................................................................................................... 9

Federalism: Typologies (Class 1 - 3) ............................................................................................ 9

Federal System .............................................................................................................................................. 9
1. Unitary Federalism............................................................................................................................. 11
2. Co-Operative Federalism ................................................................................................................... 12
3. Bargaining Federalism........................................................................................................................ 14
4. Dual Federalism ................................................................................................................................. 14
Organization of States – United States of America ..................................................................................... 15

Indian Federalism .....................................................................................................................15

Indian Case Study ........................................................................................................................................ 15
Federation State .......................................................................................................................................... 16
Examples of Federal State in India .............................................................................................................. 17
Relationship between Centre and State ...................................................................................................... 18

Article 131 of the Constitution of India......................................................................................18

Case Laws .................................................................................................................................19

State of West Bengal v. Union of India, AIR 1963 SC 1241 .......................................................................... 19
State of Karnataka v. Union of India, AIR 1977 SC 69 .................................................................................. 21
R. C. Poudyal v. Union of India, AIR 1993 SC 1804 ...................................................................................... 21
R. C. Poudyal v. Union of India, AIR 1993 SC 1804 ...................................................................................... 23
S. R. Bommai v. Union of India, AIR 1994 SC 1918 – FACTS......................................................................... 24
Government of NCT of Delhi v. Union of India (2018) 8 SCC 501 ................................................................ 26

READINGS .................................................................................................................................28
Ghai, Y. P. (2002). Constitutional asymmetries. Communal representation, federalism, and cultural
autonomy. The Architecture of Democracy. Constitutional Design, Conflict Management, and Democracy.
New York, 141-170. ..................................................................................................................................... 28
Alexandrowicz, Charles Henry. "Is India a Federation?." International & Comparative Law Quarterly 3, no.
3 (1954): 393-403. ....................................................................................................................................... 30
Tillin, L., 2016. Asymmetric federalism. In The Oxford Handbook of the Indian constitution. .................... 32
Singh, Mahendra P., and Douglas V. Verney. "Challenges to India's centralized parliamentary federalism."
Publius: The Journal of Federalism 33, no. 4 (2003): 1-20 .......................................................................... 34

Module II- Territory & Re-organization ............................................................................. 36

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 Union and its territory (Articles 1- 4) .........................................................................................36
Article 1 ....................................................................................................................................................... 36
Article 2 ....................................................................................................................................................... 37
Article 3 ....................................................................................................................................................... 37
Article 4 ....................................................................................................................................................... 37

Introduction..............................................................................................................................38
The accession of Indian States to the dominion of India ............................................................................ 38
Formation of States ..................................................................................................................................... 39
Arrangement of States as on 26th January, 1950........................................................................................ 40
Continuation of demands for linguistic States ............................................................................................ 40
Fazal Ali Commission ................................................................................................................................... 40
The States Reorganization Act,1956 ............................................................................................................ 41
The New States and Union Territories created after 1956 .......................................................................... 41

Reorganisation Case Laws and Readings ....................................................................................42

Babulal Parate v. State of Bombay, AIR 1960 SC 51: .................................................................................... 42
Mohd. Akbar Lone v. Union of India, Writ Petition (Civil), paras. Z-HH ....................................................... 45
In Re: Article 370 of the Constitution Citation: 2023 INSC 1058 ................................................................. 46
Singh, Mahendra Prasad. "Reorganisation of States in India." Economic and Political Weekly (2008): 70-
75. ............................................................................................................................................................... 49

Cession and acquisition of territory: Case Laws .........................................................................53

In Re: Berubari Union and Exchange of Enclaves, AIR 1962 SC 845 ............................................................ 53
N. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1963 SC 533 ................................................... 55
Ram Kishore Sen v. Union of India, AIR 1966 SC 644 .................................................................................. 57
Maganbhai Ishwarbhai Patel v. Union of India, AIR 1967 SC 783 ................................................................ 59
In Re Mangal Singh, AIR 1967 SC 944 .......................................................................................................... 61
R. C. Poudyal v. Union of India, AIR 1993 SC 1804 ...................................................................................... 62

Module III – Legislative Competence: Territoriality Clause [Art. 245] ................................ 64

Territoriality Clause [Art.245] Case Laws ...................................................................................65

Article 245 in The Constitution Of India 1949 ............................................................................................. 65
Doctrine of Territorial Nexus ....................................................................................................................... 66
Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118 .................................................................... 67
Poppatlal Shah v. State of Madras, AIR 1953 SC 274 ................................................................................... 68
State of Bihar v. Charusila Dasi, AIR 1959 SC 1002 ...................................................................................... 70
Karulkar v. State of Gujarat, (1994) 5 SCC 459 ............................................................................................ 71
GVK Industries v. Income Tax Officer, (2011) 4 SCC 36 ................................................................................ 71

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 Article 246 ................................................................................................................................73

Doctrine of Pith and Substance .................................................................................................73

Need for the Doctrine of Pith and Substance in the Indian Context ........................................................... 74
Incidental or Ancillary Encroachment: ........................................................................................................ 74
Important Supreme Court Judgments on the Doctrine of Pith and Substance ........................................... 75
Principle of Incidental or Ancillary Powers:................................................................................................. 76
Doctrine of Colourable Legislation: ............................................................................................................. 77
Governor-General in Council v. Province of Madras, AIR 1945 PC 98 ......................................................... 78
Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, AIR 1947 PC 60 ................................................ 79
Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019 .................................................................... 80
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 ....................................................................................... 81

Repugnancy Clause [Art. 254] ...................................................................................................86

Expansion of the Legislative Powers of the Union under Different Circumstances: ................................... 87
State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375 ............................................................. 88

Doctrine of Harmonious Construction .......................................................................................91

Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044 ............................................................. 93
ITC Ltd. V. Agricultural Produce Market Committee, AIR 2002 SC 852 ........................................................ 95

Residuality Clause [Art.248] ......................................................................................................98

Residuality Clause ....................................................................................................................................... 98
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 465......................................... 99
Union of India v. H.S. Dhillon, AIR 1972 SC 1061 ....................................................................................... 100

SCHEDULE 7 ............................................................................................................................ 102

Module IV - Union & State Executive: Aid & Advice, Ordinance Promulgation & Anti
Defection Laws ............................................................................................................... 103

Introduction............................................................................................................................ 103
Article 74 in Constitution of India ............................................................................................................. 104
State Government: GOVERNOR ................................................................................................................ 105
Article 154 - Executive power of State ...................................................................................................... 105
Governors of a State.................................................................................................................................. 106
Article 163 – Aid and Advice Clause .......................................................................................................... 107
Discretionary Powers ................................................................................................................................ 107
Protection of Governor ............................................................................................................................. 108
Constitutional Position of Governor .......................................................................................................... 109
Constitutional Discretion........................................................................................................................... 109
Situational Discretion ................................................................................................................................ 109

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 Gubernatorial (Governor) Aid and Advice Clause ..................................................................................... 110
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 .............................................................................. 111
M. P. Special Police Establishment v. State of M.P., AIR 2005 SC 325 ........................................................ 114

Gubernatorial (Governor) Ordinance Making Clause ............................................................... 117

Article 123 ................................................................................................................................................. 118
Article 213 ................................................................................................................................................. 119
R. K. Garg v. Union of India, AIR 1981 SC 2138 .......................................................................................... 120
A. K. Roy v. Union of India, AIR 1982 SC 710 ............................................................................................. 121
Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579 ................................................................................. 122
Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1............................................................................... 124
Government of NCT of Delhi v. Union of India (2018) 8 SCC 501 .............................................................. 127
UNR Rao v. Indira Gandhi, 1971 AIR SC 1002 ............................................................................................ 129

Module 4: Anti Defection Laws ....................................................................................... 132

Article 102 in Constitution of India ........................................................................................................... 132
Article 191 in Constitution of India ........................................................................................................... 133
[TENTH SCHEDULE] [Articles 102(2) and 191(2)] Provisions as to disqualification on ground of defection
.................................................................................................................................................................. 133

Introduction............................................................................................................................ 136
The Anti-Defection Law Explained ............................................................................................................ 137
Exceptions ................................................................................................................................................. 138
The Anti-Defection Law Explained ............................................................................................................ 138
Is there a time limit within which the Presiding Officer has to decide? .................................................... 139
Does the anti-defection law affect the ability of legislators to make decisions? ...................................... 140
Disqualification on defection on the ground of split in a political party ................................................... 140
Loopholes in the Anti Defection Law......................................................................................................... 141
Where’s the party? Towards a constitutional biography of political parties - Aradhya Sethia................. 144

Introduction............................................................................................................................ 145
Office of governor and party dynamics ..................................................................................................... 146
Anti Defection Laws................................................................................................................................... 147
Tenth Schedule .......................................................................................................................................... 149
• Party Politics .................................................................................................................................... 149
Exceptions ................................................................................................................................................. 150
Kihoto Hollohan v. Zachillhu And Others (1992) ....................................................................................... 151
Other Important Cases .............................................................................................................................. 152

Case Laws ............................................................................................................................... 154

Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 .......................................................................................... 154

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 Anti-defection legislation has a number of advantages. .......................................................................... 156
Minority Point of View: ............................................................................................................................. 157
Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270 .......................................... 158
Ravi S. Naik v Union of India...................................................................................................................... 158
Shrimanth Balasaheb Patil v Hon'ble Speaker, Karnataka Legislative Assembly ....................................... 159
Kesham Meghachandra Singh v. Hon’ble Speaker Manipur, MANU/SC/0062/2020 ................................. 159
Disqualification Proceedings Against Maharashtra MLAs ......................................................................... 162
Nabam Rebia v. Deputy Speaker, AIR 2016 SC 3209.................................................................................. 165
Disqualification Proceedings Against Maharashtra MLAs ......................................................................... 167
Subhash Desai v Principal Secretary, Governor of Maharashtra ............................................................... 170

Module VI- Constitutional Emergencies .......................................................................... 173

Introduction............................................................................................................................ 173
National Emergency .................................................................................................................................. 173
Failure of Constitutional Machinery in State ............................................................................................. 174
Financial Emergency.................................................................................................................................. 175
Effects of national emergency ................................................................................................................... 177
Effects of State Emergency ........................................................................................................................ 178
Effects of Financial Emergency .................................................................................................................. 178
Effects of Proclamation of Emergency on the Fundamental Rights .......................................................... 179
Difference between Article 358 and Article 359 ....................................................................................... 179
Changes Made By 44th Amendment ........................................................................................................ 180
Judicial Review .......................................................................................................................................... 181
Proclamation under Article 356 ................................................................................................................ 182
352. Proclamation of Emergency .............................................................................................................. 183
358. Suspension of provisions of article 19 during emergencies .............................................................. 185
359. Suspension of the enforcement of the rights conferred by Part III during emergencies .................. 186
FUNDAMENTAL RIGHTS VS. EMERGENCY ................................................................................................. 188
The Habeas Corpus Case ........................................................................................................................... 189
Judicial Interpretation of Validity of Suspension of Fundamental Rights .................................................. 190
A.D.M. Jabalpur v.Shivkant Shukla ............................................................................................................ 190
Suspension of Art.14 and 16 ..................................................................................................................... 190
Status of Art.356 after Bommai case- ....................................................................................................... 191
Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976 AIR 1207 .................................................... 194
Indira Nehru Gandhi vs. Shri Raj Narain & Anr .......................................................................................... 195

CASE LAWS ............................................................................................................................. 196

Makhan Singh Tarsikka v. State of Punjab, AIR1964 SC 381 ...................................................................... 196
State of Rajasthan v. Union of India, AIR 1977 SC 1361 ............................................................................ 199

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 State of Karnataka v. Union of India, AIR 1977 SC 69 ................................................................................ 201
S. R. Bommai v. Union of India, AIR 1994 SC 1918 .................................................................................... 202
Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920................................................................... 204
Rameshwar Prasad v. Union of India, AIR 2006 SC 980 ............................................................................. 205
Rameshwar Prasad v. Union of India, AIR 2006 SC 980 ............................................................................. 206

Module VII- Constitutional Amendment: Doctrine of Basic Structure .............................. 208

Is constitutional Amendment a law? ....................................................................................... 208

Marbury vs Madison: Judicial Review ..................................................................................... 209

Marbury vs Madison: Judicial Review ....................................................................................................... 209
Kesavananda Bharti V. State of Kerala ....................................................................................................... 210

Constitutional Amendments: Procedure of constitutional amendments .................................. 210

Basic Structure Theory .............................................................................................................................. 212
Kesavananda Bharti v. Union of India, AIR 1973 SC 1461 (Justice Khanna and Justice Matthew only) ..... 217
The Doctrine of Basic Structure ................................................................................................................ 221
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 (Justice Matthew, Justice Khanna and Justice Chandrachud
only) .......................................................................................................................................................... 227
Minerva Mills v. Union of India, AIR 1980 SC 1789 ................................................................................... 231
The Concept of basic structure ................................................................................................................. 233

Case Laws ............................................................................................................................... 234

M. Nagaraj v. Union of India, AIR 2007 SC 71 ............................................................................................ 234
IS EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC STRUCTURE OF THE
CONSTITUTION? ........................................................................................................................................ 236
I. R. Cohelo v. Union of India, (2007) 2 SCC 1 ............................................................................................ 237
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 ........................................................................... 243
Union of India Vs. R. Gandhi [2010] INSC 393 (Applicability of Basic Structure Doctrine on ordinary laws)
.................................................................................................................................................................. 247

Module V- Union & State Judiciary ................................................................................. 249

Introduction .............................................................................................................................................. 249
Article 124 – Establishment and Constitution of Supreme Court ............................................................. 249
Jurisdiction, Powers and Functions of the Supreme Court ....................................................................... 252
Article 32 - Remedies for enforcement of rights conferred by this Part ................................................... 252
Article 32 ................................................................................................................................................... 253
Article 129 – Supreme Court to be a Court of record ............................................................................... 254
Article 131 - Original jurisdiction of the Supreme Court ........................................................................... 255
Appellate Jurisdiction of the Supreme Court ............................................................................................ 256

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 Power of Supreme Court’s to review its own judgments, orders.............................................................. 260
Advisory Jurisdiction ................................................................................................................................. 261
Case Laws: ................................................................................................................................................. 262
Appointment of the Judges ....................................................................................................................... 263
Case Laws: Brief Overview ........................................................................................................................ 264
What is the Collegium System? ................................................................................................................. 265
Independence of Judiciary ........................................................................................................................ 268
The First Judges Appointments Case, (1981) Supp. SCC 87 (selected excerpts from the opinion of Justice
Bhagwati only)........................................................................................................................................... 271
The Second Judges Appointments Case, (1993) 4 SCC 441 (selected excerpts from the majority opinion)
.................................................................................................................................................................. 274
The Third Judges Appointments Case, (1998) 7 SCC 739 (selected excerpts) ........................................... 274
NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC) ....................................................................... 275
NJAC STRUCK DOWN BY THE SUPREME COURT ........................................................................................ 276

Introduction to the Subject – Constitutional Law I

• Constitutional law provides an overarching framework that governs the relationship
(horizontally) between the three branches of government, (vertically) between the
federal and state governments and also between citizens and the state.
• In the Indian context, constitutional law is embodied in a written text that forms the
supreme law of the land since “the people of India” are presumed to have given the
constitution to themselves in exercise of their sovereign authority.
• Consequently, all government actions and laws passed by parliament and the state
legislatures are subordinate to and must conform to constitutional provisions.
• The Indian Constitution in Part III contains (like the American Constitution but unlike
the British) a written bill of rights.
• The Fundamental Rights were drafted with a view to transforming the structure of
Indian society and thus the topics of positive rights and affirmative action become
important. These rights also provide limits on state action. All the Fundamental Rights
can be enforced against the state. However, the standards by which they are enforced
differ depending on which right is sought to be enforced. The topics will thus include
a discussion on the types of standards by which the rights are enforced against the
state.

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• Overall, the course will attempt to create an understanding of the textual structure and
linkages between the rights, to critically investigate several leading Supreme Court
decisions with a view to identifying the rules of constitutional law laid down and also
to understand the processes of argumentation and judicial reasoning with respect to
these rights.
• The course also examines the importance of Part IV of the Constitution in the context
of the commitment of the Constitution towards social justice. The course will
constantly explore that which constitutional interpretations helped in the attainment of
Justice which is the cardinal aspiration of the constitution.
• This course focuses on the governance dimension of the Indian constitutional scheme.
Specifically, it explores the vertical and horizontal division of political labour. The
first key theme of the course is the federal structure under the Constitution.
• The course places the important political and jurisprudential debates on Indian
federalism in their theoretical context.
• The theme of federalism is developed across multiple modules, including the division
of legislative powers, the constitutional constraints on states to inhibit inter-state
commerce and trade, the power of the Parliament to alter state boundaries and status,
and the power of the Union executive to impose emergencies and President’s rule.
• The second intersecting key theme is the horizontal division of powers among the
institutions under the constitutional scheme. These institutions include the Parliament,
the Executive, and the Judiciary, as well as the Election Commission of India.
• The court particularly focuses on the Executive and the Judiciary, especially from the
theoretical prism of the separation of powers. It introduces the students to the system
of political accountability and constitutional discretion of the Executive. Specifically,
it devotes modules to the Executive’s ordinance-making and pardoning powers.
• It also devotes a module to the important issue of the Executive’s power to impose
emergencies. The question of justiciability has been an important facet of the
constitutional debates in India.
• Therefore, the course focuses on the various historically evolving standards of judicial
review for executive discretion. The course also introduces the students to the debates
on the appointment of judges, judicial independence and the jurisdiction of the higher
judiciary.
• Other aspects of the debates around institutions have been left optional, to be covered
in classroom conversations and student-led presentations.

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 • Finally, the course develops the third theme of sovereignty. In particular, the power of
the Parliament to alter national borders and to amend the Constitution.

Module I – Introduction
Week 1 – Module I- Federalism: History & Typologies
• While introducing the students with manual, the focus of discussions in the first week
will be to provide a foundation for the following modules on the history, structure and
politics of Indian federalism.
• This module introduces the history and nuances of nature of Indian Constitution, and
in particular, the federal elements under the Indian Constitution.
• This module introduces the history and nuances of federalism under the Indian
Constitution. It introduces the students to the theoretical contours of federalism. It
offers them the various characteristics of India’s federal model.
• The Indian Constitution adopts a complex model of federalism that recognizes a
diversity of political arrangements with various states.
• The module places the conversation in the following modules on the history, structure
and politics of Indian federalism.
Case Laws
• State of West Bengal v. Union of India, AIR 1963 SC 1241
• State of Karnataka v. Union of India, AIR 1977 SC 69
• R. C. Poudyal v. Union of India, AIR 1993 SC 1804
• S. R. Bommai v. Union of India, AIR 1994 SC 1918
• Government of NCT of Delhi v. Union of India (2018) 8 SCC 501

Federalism: Typologies (Class 1 - 3)

Federal System
• Indian Constitution establishes a unitary state with subsidiary federal features whereas
these views are strictly based on the theoretical considerations of the Indian
constitution. K.C. Wheare opines Indian constitution as a quasi-federal. On the
contrary it is misleading to refer to India as a quasi-federation, because there is no
such thing as a quasi-federal system and that a system is either a federation or it is not
a federation. India is legally a complete federation, because all the basic features of

9
 federal system are present in the Indian constitution. Taking into account the legal or
institutional structure of a federal system, one finds that features of federalism such
as- supremacy of the constitution, distribution of powers and an independent federal
judiciary are there in the constitution.
• The minor features are also there such as participation of the constituent units in the
amendment process of the constitution and federal character of the second chamber.
However, inspite of the tendency of centralisation, the legal formal structure of our
Constitution incorporates all these elements. Apart from this discussion on the nature
of Indian constitution scholars have discussed the federal nature of Indian constitution
from different angles. W.H. Morris Jones has studied Indian federal system in its
political and dynamic perspectives.
• He talks of federalism in India as an example of the concept of bargaining federalism.
He says that federalism in India is a form of co-operative federalism but according to
him this phrase should be understood to include hard competitive bargaining. He
further says, "whereas the emphasis in the constitution is on demarcation, that of
practical relations, in on co-operative bargaining. The center has encouraged different
modes of relations with the different states and hence a varied mode of federalism is
perceivable" A large number of scholarly studies have been published on the dynamic
aspect of India's federal system.
• They reveal the impact of the dynamics of political dimensions such as the party
alliances, the ideological movements, national and regional political leadership,
effectiveness of pressure groups and peoples demands. Besides socio-economic
conditions are also determining the emerging framework of the center-state relations.
Each state of the union has its distinctive socio-economic and political problems. It
therefore, evolves different types of relations with the center. This shows that the
Indian federal system has evolved a dynamic character and this dynamic nature
changes according to compelling reasons, pressures and circumstances.
• The real nature of a society cannot be understood merely by an analysis of the
institutions. Its nature can be examined only by observing how the institutions work in
the context of that society.
• It is the operation and not the form that is important.
• The essential nature of federalism is to be sought for not in the shadings of legal and
constitutional terminology but in the forces-economic, social, political and cultural
that has made the outward form of federalism necessary. There are three models of

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 federalism in India. There is a distinction of degrees rather than kinds in this model.
Sometime these models are visible in a political system in comparison to each other.

1. Unitary Federalism

• A historical study of the growth of federal systems brings home the political truth that
what has happened during the last few decades is that the central governments have
developed their powers more and more intensively at the expense of the areas
originally allotted to the regional governments, it is due to this that the national
governments have grown in importance in comparison with the regional governments.
• The main forces that have contributed to the growing strength of national
government at the expense of regional government seem to have been six fold -
war politics, depression politics, welfare politics, techno-politics, grant-in-aid
politics and party politics. The horrible conditions of war and economic
depression demand unitary control for the effective protection of national
interests.
• The ideal of social welfare state has enjoined upon the national government to
increase its scope of activity more and more to eradicate gigantic evils of property,
unemployment, disease, starvation, ignorance etc. Techno-politics means the study of
political institutions in the light of scientific and technological developments having
their Impact upon the working of governmental machinery.
• It means government by experts and technocrats and not the leaders chosen by the
people.
• The experts and technocrats stress goals of development and lay down politics and
programmes. As these specialized services are mostly provided by the national
government, the regional governments have to carry out the plans, programmes and
instructions prepared by the technocrats working behind the rulers of the central
administration. The regional governments live in a perpetual condition of financial
difficulties.
• They not only have meagre resources but they are forced to collect money that they
cannot spend and also forced to spend in a particular way the money that they do not
collect. In many cases the provincial governments have to stand like "baggars" at the
door of the center.

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• Though a federal system in all respects, the very system is reduced to a Unitarian
model when political parties run the machinery of general and regional governments
without federalizing their own character.
• In this context, the case of Congress Party in India is a striking example, the High
Command of this party is the final authority in matters of distribution of tickets,
composition of the union and state ministries, selection of the Prime Minister and
Chief Minister etc. The result is that both the Union and State Governments in India
are virtually controlled by the all- powerful party in a way that our federal pattern has
become a matter of form while its spirit has become unitary under the rule of the
Congress Party. Almost all the national parties who have come to govern the central
government have shown the same tendency. Carl J.Friedrich envisages "if the
government is federally structured, parties must adapt themselves to such a structure".

2. Co-Operative Federalism
• A federal system not only stands for the distribution of powers between the two sets
of political organizations in order to ensure that the ideal of co-ordination and
complete administration of the divided spheres is attained as effectively as possible.
• It is needed for the obvious reason that there is the area of inter-regional relationships
disallowing any component unit to keep itself completely off from others in the
interest of administrative efficiency and nationalist sentiments. K.C.Whare rightly
visualizes that if each regional government "keeps completely to itself many matters
will suffer from diversity of regulation and government itself be less efficient because
the experience of other states will have been neglected.
• Hence some agencies of inter-governmental co-operation have been devised in
various federal systems of the world. Taking the case of the Australian Federal
System, we find Inter-Provincial Conference and Premiers Conference.
• The Governor’s Conference in United States and Dominion Provincial Conference in
Canada are other cases of similar institutions for federal co- operation, Granville
Austin is of the view that the Constituent Assembly of India was the first assembly
which adopted from the very start what is called as the concept of Co-operative
Federalism. This concept is distinct from Wheare's concept of federalism who says
that "the general and regional governments of a country shall be independent of each
other within its sphere." As against this, the concept of Co-operative Federalism
implies a strong central government.

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• This does not mean that the provincial governments are weak.
• According to Austin, provincial governments are largely administrative agencies for
central policies. He quotes AH.Birch, who defines Co-operative Federalism as the
practice of administrative co-operation between general and regional governments,
the practical dependence of the regional governments upon payments from the general
governments and the fact that the general governments by the use of conditional
grants, frequently promote developments in matters which are constitutionally
assigned to the regions. Inter-level co- operation in different fields has been the most
significant aspect of Indian federalism.
• Many of the state legislatures through formal resolutions agreed to empower the
Parliament to legislate in regard to the levy of succession duty on agricultural lands
which under the constitution is a state subject.
• Administrative co-operation on a large scale is a remarkable development in the
operation of Indian federalism.
• For example, the execution of land reclamation and development schemes under the
plans the central and state sector organizations function in close co-operation.
• The central inspectors help the state inspectors in enforcing the provisions of the Drug
Act.
• Planning in India is a co-operative enterprise in which the basic norms of
development are set by center in discussion with the states, a large amount of finance
is provided by the center and the main administrative machinery is supplied by the
states.
• Another fruitful line of co-operation in India has been in the direction of utilization of
the water resources of the country. For instance the Damodar Valley Scheme is a joint
endeavour in which the center and the states of West Bengal and Bihar are involved.
• The Indian federation has also involved conference techniques facilitating smooth
union state relation and inter-level co-operation. Periodic Conference between the
representative of the Union and the States have become a regular feature of the
operative machinery of Indian federalism.
• Conferences of the state Governors, meetings of the state Chief Ministers, State
Ministers conferences and meetings of union and state officials. The value of
these meetings lies in adoption of an integrated an co-operative approach towards
the solution of the numerous problems which arise under India's federal structure.

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3. Bargaining Federalism

• We all are familiar that the bargaining process was found after the fourth, sixth, ninth
and tenth Lok Sabha elections in India, when the non-congress and regional parties
came to power in the states. Morris Jones talks of federalism in India as an example of
the concept of competitive bargaining, one illustration may be given from procedures
on legislation. The constitution prescribes that bills passed by state legislatures may
on submission to the Governor be refused assent or returned for reconsideration or
reserved for the consideration of the President and further that bills dealing with
public acquisition of property must be so reserved.
• By convention, however, states send such hills to the center for examination and
comment in advance, so that the reservation procedure when reached is merely
formal; some states go further and submit in this way most bills which deal with
subject on the concurrent list. Bargaining federalism is also traceable in existence,
formal as well as tacit, in operation of various institutional agencies such as the
Planning Commission National Development Council, Finance Commission, Inter-
State Council, Zonal Councils and a host of statutory bodies for the adjudication of
disputes with respect to use, distribution and control of inter-state rivers etc. In other
words we can say that the Indian Constitution envisages the appointment of a number
of high level commissions both permanent and ad-hoc for the specific purpose of
reconciling diverse and conflicting interests with the co- operation of Union and State
Government.

4. Dual Federalism

• Is based on the relatively optimistic belief that a clear division between federal and
state authority can, and does, exist.
• This theory states that authority between the two levels of U.S. government, national
and state, could be treated equally, live together equally, and hold roughly equal
authority.
• After all, the Constitution includes this very clever mechanism: the reserved powers
clause, which seems to set a line between the two levels of U.S. government.
• Dual federalism has been nicknamed 'layer-cake federalism', since it imagines an
obvious separation between state and federal duties.

14
Organization of States – United States of America
• Federalism is a widely accepted form of government in the world today due to its
accommodative or adaptive nature. It emerged as a strong counter device against the
British colonial monarchism that existed across the world during that time.
• As a result, USA came with the first modern written democratic constitution by
overthrowing the colonial monarchism. Subsequently the US constitution adopted the
democratic means of governance by limiting the governmental power by vertical
separation of powers and horizontal division of powers.
• This is because federalism emerges out of the balanced forces of nationalism and
regionalism.
• On the contrary, UK developed another form of government, in which there was
struggle for supremacy between the crown and the parliament. This experience taught
to rest of the countries of the world to choose a federal democratic republican
constitution.

Indian Federalism

Indian Case Study

• In the case of India, the constitutional maker’s choice was for federalism due to its
sub-continental expanse and; socio-cultural and regional diversities. Historically,
India has been a plural society as well as multicultural with all the characteristics of
diversity. India had not only cultural diversities and differences but also threat of
external aggression.
• After British left the India, it was open to threats from China, Russia and Afghanistan
on the one hand and the newly created Pakistan on the other hand. The Cripps and
Cabinet Mission Plans advocated for a relatively weak Centre due to various
communal problems but, it was not accepted by the Constituent Assembly.
• However, the passing of the India Independence Act and the eventual partition of
India and Pakistan led the constituent assembly to adopt the unitary form of
federalism. After independence, Jawaharlal Nehru, like other congress leaders of that
time, was very ambivalent and uncertain about the reorganization of states, owing to
the fact that he worried about disintegrative consequences.

15
 • He also had the fear of the viability and durability of the monolingual states, which
would not have long term sustainability. During the constitutional debate,
• Nehru supported administrative efficiency and a multi-cultural and multi-lingual
political order. In contrast, Ambedkar supported the demand for the reorganization of
Indian states on linguistic basis. He thought it would ensure the functioning of the
democratic polity by enhancing the equitable survival of all languages, cultures;
regions within an inclusive developmental polity. He also emphasized on
administrative efficiency, specific needs of particular areas and proportion
between majority and minority communities within a state. Thus, the
reorganization of states would help countries maximize growth and political
strength as well as allow expressions of regional characteristics.

Federation State
• The federation was accepted as a useful and working system of government in
conflict situations (issues of separation, division of large regions, diverse culture etc.)
related to a federal structure(Watts, 1966). Within this federal framework, inter-state
boundaries among Indian states since 1950 have continuously been reorganized and
the process is not yet complete. In the 1950s, the reorganization of south India took
place followed by the reorganization of states of western and northern India in the
1960s. Later, the northeastern states were reorganized in the 1970s.
• Three new states (Uttarakhand, Chhattisgarh and Jharkhand) were created in
2000. Among the linguistic states, Andhra Pradesh was the first state to be
formed based on the Telugu speaking population in south India. In subsequent
years, the rest of the Indian states started demanding for separation based on the
linguistic identities. There are still some demands for creating new states and the
finalizing of boundaries of the states. The post-independent Indian federal
structure has weathered many linguistic, religious, ethnic, regional, cultural and
politico-ideological challenges.
• In order to overcome these challenges, the Indian Constituent Assembly in 1948
appointed the Dar Commission followed by the Jawaharlal Nehru, Vallabhai Patel,
PattabhiSitaramayya Committee (JVPC) to reorganize the states. Both the committees
expressed concern regarding the new forms of inequalities and hierarchies based on
the disproportionate spread of linguistic majority and minority groups in the
reorganized provinces.

16
 • In addition, seven other committees were constituted with regard to the federal
structure in Indian polity. In 1953, the States Reorganization Committee (SRC) was
established to look after the issues of reorganization of states in India. It is
recommended some basic principles of reorganizing of the states as preservation and
strengthening of unity and security of India, linguistic and cultural homogeneity,
financial and administrative efficiency and the successful working of the 5-Year
Plans.

Examples of Federal State in India

• Later, as per the State Reorganization Committee 1956, the states were reorganized in
terms of linguistic, cultural homogeneity and geographical contiguity. From 1947 to
1950, many princely states were integrated with neighboring provinces and some
integrated with centrally administered units. On that basis, demands came from
Orissa, Andhra, Maharashtra, Gujarat and later Haryana, Himachal Pradesh, Punjab
and Assam for separation. These demands were raised continuously due to their
economic backwardness and for becoming sub-regions within larger states.
• The movement for separation of the Hyderabad-Karnataka region in Karnataka was
due to its cultural distinctiveness and economic neglect.
• Similarly, in West Bengal, the Nepalese have been demanding a separate state of
Gorkhaland due to their cultural distinctiveness and economic marginalization. Thus,
as many as 30 such demands are there before the Indian Government at present.
• All these issues gave space for more demands to focus on better governance,
equitable economic growth, increase in participative political order and development
at the sub-regional level. Based on new state demands, several regional and sub-
regional issues/challenges are also emerging such as the preservation of forests,
welfare of tribal communities, emergence of new regional elites, rise of other
backward castes and increase in the number regional political parties within a state.
• This is evident from the several demands for smaller states of Vidharba
(Maharashtra), Saurashtra (Gujarat), Bodoland (Assam), Coorg (Karnataka),
Harit Pradesh (Uttar Pradesh) and others. The issue of state formation has
become a part of Indian political system today due to the emergence of coalition
politics in India.
• The party that does not get the majority always depends on the support of regional
parties to form the government at the Centre. The political parties do not want to lose

17
 their vote banks in terms of political power and they use the issue of state formation
as their political agenda to obtain political positions.
• However, the Indian political system has started its journey towards cooperative
federalism. It could be a significant tool or instrument for creating opportunities for
national as well as regional development. Nevertheless, it is evident from the
Karnataka and Andhra Pradesh Human Development Report that the two study areas
have suffered discrimination many grounds.
• If this situation continues, then the objective of cooperative federalism and the
growth of the nation generally and regionally, in particular, will not be realized.
Hence, the issue of state formation has been a core area within the Indian
political system.

Relationship between Centre and State

• Our Constitution is one of the very few that has gone into details regarding the
relationship between the Union and the States. A total of 56 Articles from Article 245
to 300 in Part XI and XII are devoted to the State-Centre relations. Part XI (Articles
245-263) contains the legislative and administrative relations and Part XII (Articles
246-300) the financial relations.
• By going into great details of the relations, the Constitution framers hope to
minimize the conflicts between the centre and the states. By and large, the
confrontations between the two have been minimal.

Article 131 of the Constitution of India

• 131. Original jurisdiction of the Supreme Court Subject to the provisions of this
Constitution, the Supreme Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute
o (a) between the Government of India and one or more States; or
o (b) between the Government of India and any State or States on one side and
one or more other States on the other; or
o (c) between two or more States, if and in so far as the dispute involves any
question (whether of law or fact) on which the existence or extent of a legal
right depends: Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagements, and or other
similar instrument which, having been entered into or executed before the

18
 commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to
such a dispute

Case Laws

State of West Bengal v. Union of India, AIR 1963 SC 1241

Facts:
▪ The case was a suit filed by the State of West Bengal against the Union of India for a
declaration stating that the Parliament was not competent enough to make laws
authorizing the Union to acquire land and to have rights over any such land, which
rests with the state.
▪ The Parliament had passed Acquisition and Development Act, 1947 which gave the
Center, the power to acquire land and rights on the land, which were vested in the
hands of the state. This was the first instance when Article 131 was called on by a
State against the Union Government and Sections 4 and 7 of the Acquisition and
Development Act were challenged for being ultra vires. The State of West Bengal
contended that as the Constitution is federal, the state sustains its sovereignty and the
Parliament does not have the authority to pass a law and acquire the state-owned coal
fields.
▪ In the case of State of West Bengal v. Union of India[iii], the state (West Bengal) had
applied for a declaration that the Parliament is not competent enough to make laws
that authorize acquiring land and also does not rights in or over land, which are vested
in a state and that the Coal Bearing Areas (Acquisition and Development) Act, 1957
enacted by the Parliament was ultra vires. Chief Justice Sinha delivered a majority
judgement on the given matter. He threw significant light on the fact that our
Constitution does not recognize the sovereignty of the states and the sovereignty rests
with the Union of India. Therefore, the states are not in a position to challenge the
legislative competence of the Union. The Supreme Court, in this case, stated that the
power of the Union to legislate with regards to property is vested in the states.
▪ The Constitution, which a division of the legislative and the executive powers
between the Union and the states is not found on such a postulate and the concept of
superiority of the Union over states in various aspects have already been examined
and it negates it. The minority judgement by Justice Subba Rao stated that the

19
 Constitution of India enshrines the federal principles and sovereign powers have been
distributed between the coordinate constitutional entities, the Union and the States.
The concept implies that Union cannot interfere in the governmental functions of the
states and vice versa. In order to prevent such interference, the apex court has the
constitutional powers and correlative duty to do so and it is in this manner that the
Supreme Court maintains balance of federation in the nation. At the same time, it is
submitted that it is uncertain in the minority judgment as to how the disputes of
political considerations can be kept in abeyance if such wide jurisdiction is conferred
on the Supreme Court, secondly, it would include in its jurisdiction the express
constitutional prohibitions also.

Whether the states in India are a sovereign authority or not?

▪ Chief Justice Sinha observed that the distribution of powers between the Centre and
the States is based on the relationship between the Centre and the States under the
Government of India Act, 1935.
▪ He also stated that it is the supreme authority of the courts to interpret action violative
of the Indian Constitution and to declare any such action that do so, as invalid. The
apex court held that, there was no separate Constitution that governs the states and the
Indian Constitution is the supreme law of the land. It is subject to be alterations by the
Union Parliament alone and states do not hold any power in doing the same. The
Acquisition and Development Act, 1957 was not held ultra vires the scope of
authority of the Parliament but was held to be valid. As per, Entry 42 of List III of the
Seventh Schedule, the Constitution of India, the Parliament is competent to make laws
for the acquisition if any State’s property.
▪ The Indian Constitution is unitary in spirit and federal in nature, therefore, we
can say that it is not completely federal in character. There is a firm distribution
of powers between the Union and the States. Thus, it would not be correct to say
that all sovereignty is vested in the States. Parliament cannot be held
incompetent to acquire by legislation, any property owned by the States solely on
the basis of theory of absolute sovereignty of the State. This was the majority
opinion on the case. Also, no compensation was given to the State of West Bengal
and the suit was dismissed with costs.

20
State of Karnataka v. Union of India, AIR 1977 SC 69
▪ A memo accusing the Chief Minister of Karnataka of corruption, nepotism and
favouritism was submitted by certain opposition members of the State Assembly. The
same was denied as being frivolous and politically motivated by the Chief Minister. A
Commission was constituted by the State Government headed by retired judge of
High Court on May 18, 1977.
▪ In furtherance of the memo, the Union Government appointed a one-man commission
headed by a retired Supreme Court Judge under the Commissions of Inquiry Act,
1952 on May 23, 1977. The Commission was to inquire into the allegations levelled
against the Chief Minister. Challenging the authority of Government to appoint such a
Commission and the legality of the said Commission, the State Government of
Karnataka filed a suit under Art.131 of the Constitution.
▪ In a suit under Art.131 of the Constitution, the distinction between the State
Government and the State, as an abstract entity, is immaterial.
▪ Art.131 will be applicable only in matters wherein any legal right of the parties such
as liberty, a right, power or immunity is affected. The State need not prove violation
of its legal right but the involvement of a legal question is sufficient ground for
accepting the matter.
▪ The scope of jurisdiction conferred upon the Supreme Court under Art.131 are wide
and grants original jurisdiction unless expressly excluded by the Constitution in
special circumstances.
▪ The Court while judging the constitutional validity of S.3 of the Act, reaffirmed the
quasi-federal nature of the Constitution.
▪ Thus, Art.131 can be invoked when a dispute arises between the State and the Central
Government on a question involving the interpretation of the Constitution.
▪ The judgement has been cited as precedent by the Kerala Government to prove its
grounds for maintainability of petition challenging the Citizenship Amendment Act,
enacted by the Central Government.

R. C. Poudyal v. Union of India, AIR 1993 SC 1804

▪ The case of R.C. Poudyal vs Union of India largely deals with the issue of reservation
in the then newly constituted Legislative Assembly of Sikkim. The case focuses on the
constitutional validity of the reservations made by the Parliament in the state of

21
 Sikkim and determines the concerns related to such representations. In order to
fathom the context for an argument the court largely relies on, it is imperative to know
the historical circumstances due to which these reservations were put into question.
▪ The Union of India was of the opinion that the Parliament has been given a power
under Article 2 which gives them the authority to admit new States into the Union on
such terms that it deems fit and that these terms were not subject to Judicial Review.
The Union argued that this was a political question and was outside the scope of the
Judiciary. The Court contended that Article 2 bequeaths broad powers to the
Parliament and does give a certain amount of flexibility to the Indian Union with
respect to admission of new States, but this power was not to be considered as non-
reviewable or unfettered.
▪ The Basic Structure doctrine was an existing doctrine at that time and hence, there
was no unlimited power that was to be vested in the Parliament. Further, the Attorney
General on behalf of the Union argued that the newly inserted Article 371F began
with a non obstante clause and therefore the other provisions of the Constitution
would not apply to the State of Sikkim. Hence, the Court must not be the judge of the
validity of such matters. However, this argument was flawed in nature because in
cases where the Parliament does not have the power to change the constitution due to
the constraints that the Basic Structure doctrine carries, it also cannot use a non
obstante clause and continue to go against the structure of the Constitution. That
would tantamount to unlawful use of authority. Therefore, the judiciary must have
sizable power to review the conditions on which a state is admitted, in cases where the
Parliament has been inconsistent with already existing provisions.
▪ The Court also elucidated further on the issue of Article 2, and concluded that the
newly admitted state cannot be completely equal to the already existing states of the
Union as the Parliament has the power to admit states on certain conditions as they
deem fit, however, these conditions must not establish a system that is alien to the
conventional institution that the Constitution envisages. The vagueness of the ‘alien
system’ was something that should have been questioned. This sort of vague
understanding of such law impermissibly puts off basic principles to be interpreted
subjectively on an ad hoc basis with the consequent possibilities of discriminatory
application.
▪ However, it was the minority view of L.M Sharma, C.J.I. which was transcendental-
Article 330 clause (2) and article 332 Cl. (3) laid down the rule of maintaining the

22
 ratio between the seats and the population. This proves to be vital because the main
goal for reservations is the principle of equal status. Therefore, it is safe to say that the
issue of inadequate representation will not be resolved with this particular reservation,
consequently applicable provisions are known to be flexible to authorize broader
discretion to attain proportionate representation. This sort of excessive representation
will give rise to unequal status.

R. C. Poudyal v. Union of India, AIR 1993 SC 1804

▪ The Basic Structure doctrine was an existing doctrine at that time and hence, there
was no unlimited power that was to be vested in the Parliament. Further, the Attorney
General on behalf of the Union argued that the newly inserted Article 371F began
with a non obstante clause and therefore the other provisions of the Constitution
would not apply to the State of Sikkim. Hence, the Court must not be the judge of the
validity of such matters. However, this argument was flawed in nature because in
cases where the Parliament does not have the power to change the constitution due to
the constraints that the Basic Structure doctrine carries, it also cannot use a non
obstante clause and continue to go against the structure of the Constitution. That
would tantamount to unlawful use of authority. Therefore, the judiciary must have
sizable power to review the conditions on which a state is admitted, in cases where the
Parliament has been inconsistent with already existing provisions.
▪ The Court also elucidated further on the issue of Article 2, and concluded that the
newly admitted state cannot be completely equal to the already existing states of the
Union as the Parliament has the power to admit states on certain conditions as they
deem fit, however, these conditions must not establish a system that is alien to the
conventional institution that the Constitution envisages. The vagueness of the ‘alien
system’ was something that should have been questioned. This sort of vague
understanding of such law impermissibly puts off basic principles to be interpreted
subjectively on an ad hoc basis with the consequent possibilities of discriminatory
application.
▪ However, it was the minority view of L.M Sharma, C.J.I. which was transcendental-
Article 330 clause (2) and article 332 Cl. (3) laid down the rule of maintaining the
ratio between the seats and the population. This proves to be vital because the main
goal for reservations is the principle of equal status. Therefore, it is safe to say that the
issue of inadequate representation will not be resolved with this particular reservation,

23
 consequently applicable provisions are known to be flexible to authorize broader
discretion to attain proportionate representation. This sort of excessive representation
will give rise to unequal status.

S. R. Bommai v. Union of India, AIR 1994 SC 1918 – FACTS

a. SR Bommai was the chief minister of the Janata Dal government in Karnataka
between 13 August 1988 and 21st April 1989.
b. His government was dismissed on 21 April 1989 under article 356 of the constitution
and president's rule was imposed in what was then a party mostly mode to keep
opposition party at bay.
c. The dismissal was on grounds that the government had lost majority following large
scale defections engineered by several party leaders of the day.
d. Then governor p Venkatasubbaiah refused to give an opportunity to test his majority
in the assembly despite the letter presenting him with a copy of the resolution passed
by the Janata Dal legislative party.
e. Karnataka High court:
Bommai went to court against the governor's decisions to recommend president's rule
and the H.c.which dismissed his writ petition. then he moved the supreme court. On
April the governors sent a report to the president stating there in dissensions and
defection is in the ruling party. he further stated that in view of the withdrawal of the
support by the state legislature the chief minister Bommai.
• The Hon’ble Supreme Court interpreted the Article 356 of the Indian Constitution and
stated the grounds and prerequisites to be fulfilled before President’s Rule can be
imposed in a state. Article 356(1)(a) allows the President to take over the executive
powers of the state while Article 356(1)(b) allows the President to declare that the
Legislature of the state shall be exercisable by the Parliament. Moreover, the
President may make other such incidental and consequential provisions as necessary
or desirable for giving effect to the objects of the Proclamation, as stated by Article
356(1)(c). The clause 2 states that this Proclamation can be revoked or varied by a
subsequent Proclamation. Article 356(3) states that the said Proclamation (unless it is
a Proclamation for revoking an earlier Proclamation) must be passed by both the
houses of the Parliament before the expiry of the period of two months since it is
introduced. A Proclamation so approved, unless revoked, would cease to exist on the
expiration of a period of six months from the issue of such Proclamation.

24
• Moreover, the Supreme Court said that the power of the President under Article 356 is
subject to Judicial Review. Article 74(2) which provides protection to the government
and states that the advice given by the council of ministers should never be asked to
be revealed by courts was interpreted in a broader sense. The Supreme Court said that
the courts are not barred from asking for the material on which this advice is based
and that would still fall into the purview of Article 74(2) i.e, the court can call the
material on the basis of which such decision has been taken as the material behind the
satisfaction that President’s Rule is required. Prior to this judgment, the High Courts
of various states were interpreting the Article in a narrower sense and their
judgements were based on the exemption clause provided under Article 74(2) of the
Indian Constitution.
• The Court further stated that the President does not have the power to dissolve
the Legislative Assembly of the state. The power enshrined to him under Article
356(1)(c) authorises him to just suspend the workings of the Assembly. The
dissolution of the Legislative Assembly can be done only after the majority
approval of both the Houses of the Parliament. This would ensure that there are
checks and balances to the powers vested with the President.
• The Supreme Court discussed the Basic Structure Doctrine which states that the basic
structure of the Constitution i.e, the foundations on which the Indian Constitution is
based on, should always be followed, irrespective of the situation. The basic feature of
Federalism was called for discussion in this case. The Indian Constitution is federal in
character and even though it gives more powers to the central government, the
Supreme Court concluded that the states should be given adequate powers to rule in
their sphere and they should not be interfered with in this regard.
• Hence, as a result, the Supreme Court declared the President’s Rule established
in Karnataka as unconstitutional and restored the state government in the state.
• This case went on to become a landmark decision in regards to the centre-state
relations. S.R. Bommai v Union of India acts as an important testimony for the fact
that even though the centre has more power than the states, it cannot arbitrarily
impose its powers on the state. The Court kept in mind the Basic Structure Doctrine
and established that the states are supreme in their respective political arenas. This
case also threw light on the blatant misuse of the Article 356 and the ever so frequent
imposition of the President’s Rule and declared that to be unjustified.

25
Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
[https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-
settling-tussle-between-delhi-govt-and-centre-legal-news/]
▪ In the spirit of cooperative federalism, the Union must exercise its powers within the
boundaries created by the Constitution. NCTD, having a sui generis federal model,
must be allowed to function in the domain charted for it by the Constitution. The
Union and NCTD share a unique federal relationship. It does not mean that NCTD is
subsumed in the unit of the Union merely because it is not a “State”.
▪ The official designation of the Union Territory (UT) of Delhi is the National Capital
Territory (NCT) of Delhi. The Delhi Government is currently formed with the Aam
Aadmi Party in the majority.
▪ Under Article 239 of the Constitution of India, the administration of UT’s is handled
by an administrator appointed by the President. However, in 1991 the Constitution
(Sixty-ninth Amendment) Act, 1991 introduced Article 239AA which created an
elected Legislative Assembly and a Council of Ministers including a Chief Minister
for NCT Delhi. This Assembly has the power to make laws for NCT Delhi with
respect to any of the matters under the State or Concurrent Lists (except public order,
police and land matters). The ‘Lieutenant Governor’ (the LG) of Delhi was designated
the Administrator of the NCT Delhi.
▪ The relationship between Articles 239 and 239AA is the source of the current political
contest between the Union and NCT Delhi government over the administrative
control over the NCT Delhi territory. The SC has previously ruled upon the scope of
the LG’s powers in 2018. A five-judge Bench held that the LG is bound by the aid and
advice of the Council of Ministers for all matters where the Legislative Assembly has
the power to make laws. They also ruled that the LG only needs to be consulted on
decisions taken by the Council, but his concurrence isn’t required.
▪ The Union Government sought to overcome the Supreme Court’s decision by
enacting the Government of National Capital Territory (Amendment) Act, 2021 (the
Amendment) which came into force on April 27th, 2021. It barred the Legislative
Assembly from considering matters on the day-to-day administration of the NCT
Delhi and from conducting any inquiries into administrative decisions. It requires any
bills passed by the Legislative Assembly to be reserved by the LG for consideration
by the President if the bill ‘incidentally’ covers any matters outside the Assembly’s

26
 purview. Further, it mandates that all executive action taken by the government must
first receive the LG’s ‘opinion’. The Delhi Government filed a petition in the
Supreme Court (SC) challenging the constitutional validity of the Amendment on
August 10th 2021.
▪ In their petition, the Delhi Government argues that the Amendment diminishes the
powers and functions of the elected Legislative Assembly and establishes the LG as
the default administrative authority over NCT Delhi on all matters.
▪ They urge the court to declare that this constitutional amendment damages the basic
features of federalism, separation of powers, rule of law and representative democracy
and is hence unconstitutional.
▪ On May 11th, 2023, the SC upheld the Delhi government’s powers to control civil
servants and day-to-day administration of the NCT of Delhi.
▪ Supreme Court: In the matter dealing with the asymmetric federal model of
governance in India, involving the contest of power between a Union Territory and
the Union Government, the Constitution bench of Dr. D.Y. Chandrachud*, C.J., M.R.
Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, J.J., held the following:
▪ There does not exist a homogeneous class of Union Territories with similar
governance structures.
▪ NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is
accorded a “sui generis” status, setting it apart from other Union Territories.
▪ The Legislative Assembly of NCTD has competence over entries in List II and List III
except for the expressly excluded entries of List II. In addition to the Entries in List I,
Parliament has legislative competence over all matters in List II and List III in relation
to NCTD, including the entries which have been kept out of the legislative domain of
NCTD by virtue of Article 239AA(3)(a).
▪ The executive power of NCTD is co-extensive with its legislative power, that is, it
shall extend to all matters with respect to which it has the power to legislate.
▪ The Union of India has executive power only over the three entries in List II over
which NCTD does not have legislative competence.
▪ The executive power of NCTD with respect to entries in List II and List III shall be
subject to the executive power expressly conferred upon the Union by the
Constitution or by a law enacted by Parliament
▪ The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article
239-AA(3) cannot be read to further exclude the legislative power of NCTD over

27
 entries in the State List or Concurrent List, over and above those subjects which have
been expressly excluded
▪ With reference to the phrase “Subject to the provisions of this Constitution” in Article
239-AA(3), the legislative power of NCTD is to be guided, and not just limited, by
the broader principles and provisions of the Constitution;
▪ NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II
of the Seventh Schedule because the definition of State under Section 3(58) of the
General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution.
Thus, Part XIV is applicable to Union territories; and the exercise of rule-making
power under the proviso to Article 309 does not oust the legislative power of the
appropriate authority to make laws over Entry 41 of the State List.

READINGS

Ghai, Y. P. (2002). Constitutional asymmetries. Communal representation,

federalism, and cultural autonomy. The Architecture of Democracy.
Constitutional Design, Conflict Management, and Democracy. New York, 141-
170.
▪ The necessity of a constitution which is based on mutual recognition of diversity is
reinforced by the consideration that there is no escape from multi-ethnic states as the
alternative of over 1,500 ‘nation states’ is not feasible. Such a constitution should be
‘a form of accommodation’ of cultural diversity, of inter-cultural dialogue in which
the culturally diverse sovereign citizens of contemporary societies negotiate
agreements on their forms of association over time (Tully 1995: 30).
▪ The organizing principle is state sovereignty, which justifies the centralization of
power and displaces local and group sites of power. This sovereignty operates on a
territorial basis, with hard boundaries. Rules for the exercise of this sovereignty are
biased towards majoritarianism, stifling the voices of minorities. Much of his
criticism is encapsulated in his view of sovereignty as ‘a rationalised system of
authority, is unitary and impersonal in nature, is the source of all legal authority
exercised within the state, is not legally bound by the traditions, customs and
principles of morality, and is not subject to a higher internal or external authority’
(Parekh 1997: 183).

28
▪ Nor is recognition of diversity always a virtue. The colonial state was par excellence a
state of diversity and discrimination, deeply acknowledged, indeed entrenched, in
constitutional and legal systems. The organization of the apartheid regime in South
Africa which ‘gloried’ in racial and cultural diversity used these distinctions to build
its edifice of oppression. Jewish control over Israel is maintained through various
legal institutions and distinctions which discriminate against Arabs or fragment the
political community.
▪ However, it is not my contention that the political recognition of diversity is always
fragmenting or oppressive. Special regimes for communities based on sensitivity to
their vulnerabilities, or the recognition of the centrality of cultures to them, or of past
injustices, have contributed to justice as well as improvement in inter-ethnic relations.
Whether the political recognition of diversity is fair or beneficial depends on the
context, the preferences and aspirations of the various communities, and the forms
that political recognition takes. Moreover, support for it depends on differing theories
of ethnicity. What I do in this chapter, in order to make a preliminary assessment of
potential of political recognition to ameliorate or aggravate ethnic tensions, is to
examine three principal devices: communal representation, asymmetrical federalism,
and cultural autonomy.
▪ Separate legislative representation has sometimes been worthwhile, as the Indian
example shows; but mostly it has been harmful. Asymmetrical federalism has great
capacity to respond to the varying circumstances and needs of ethnic groups. But it is
hard to negotiate and sometimes hard to operate. Cultural autonomy can give a
beleaguered community a sense of identity and moral cohesion, and assist in
preserving its traditions. But as with other asymmetrical devices, it can cause injustice
to both the members of the autonomous community and those outside it. All three can
produce resentment and conflict.
▪ Nevertheless, these studies highlight some aspects of the constitutional recognition of
diversity that pertain to policy on this matter. Several examples of legal recognition of
cultural diversity were imposed rather than sought by minority groups—for example,
apartheid structures, or divide-and-rule mechanisms used by colonial authorities.
Historically, diversity arrangements have been connected with discrimination and
domination. Often, if culture or religion is constitutionally recognised, it is the culture
of the majority, resulting in the domination of the culture of others—Sri Lanka,
Malaysia. Separate cultural systems are also a way of privileging some members of a

29
 community, such as traditional elites—usually male—or the wealthy, over others. For
similar reasons, emphasis and efforts that go into developing separate systems for
separate cultures mean that urgent social problems, whether of a community or of all
the people, may be neglected.
▪ Austin (1972: 144) says that the ‘members of the Constituent Assembly had one
predominant aim when framing the Legislative provisions of the Constitution: to
create a basis for the social and political unity of the country’. He summarizes the
situation at independence as follows: ‘ . . . not only did the provinces lack even a
semblance of popular government . . . but the small electorate that existed was itself
thoroughly fragmented . . . split into no less than thirteen communal and functional
compartments for whose representatives seats were reserved in the various
parliamentary bodies’. Similar distinctions were applied in the indirectly central
legislature. Austin (1972: 144–5) concludes: ‘Quite evidently, the members of the
Constituent Assembly could not pursue the goals of national unity and stability by
perpetuating a system of government that accentuated existing cleavages in Indian
society and tended to create new ones.’

Alexandrowicz, Charles Henry. "Is India a Federation?." International &

Comparative Law Quarterly 3, no. 3 (1954): 393-403.
▪ India has been termed a quasi- federation and the question arises whether such
classification is justified in theory as well as in practice. The case of Indian federalism
is certainly sui generis and a brief analysis of its origin may prove helpful to
overcome difficulties in defining it.
▪ Under British rule India was a combination of two types of units which constituted the
component parts of the Indian Empire. There were about 600 princely states which
enjoyed internal autonomy while their external sovereignty was surrendered to the
British Crown. The latter exercised the powers of paramountcy in relation to the
princely states which meant a sui generis relationship of suzerain and vassal. The
remainder of India was divided into provinces which constituted altogether British
India and were centrally ruled from N.Delhi though they acquired gradually more and
more autonomy
▪ These tendencies in independent India have resulted in the forma- tion of opposition
parties and, what is more, important from the point of view of federalism, in the

30
 claims of linguistic communities for the reorganisation of the federation on linguistic
lines. Language means, of course, also a separate local tradition and regional
civilisation which gives the impetus to a particular community to have its own
political body or state within the framework of the federation.
▪ The Indian constitution in fact contains a number of emergency provisions which are
essential for defining Indian federalism. In India the constitutions of the local states
are incorporated into the general constitution. Such merger as we have seen resulted
from one of the primary purposes of federating, i.e., from administrative convenience.
▪ They can be unilaterally deprived by the centre of their status. The centre draws no
power from the units, it relies on its own power imposed from above. The creation of
a new linguistic state must always affect all the surrounding states comprising people
speaking the particular language who will tend to be united in the new linguistic state.
For instance the creation of the Andhra state threatens to disintegrate the state of
Hyderabad. The creation of any new linguistic state is therefore not an isolated
problem affecting one particular state only, and besides it constitutes a highly con-
tagious factor as other linguistic communities still without statehood intensify similar
de facto pressure on the centre. The constitution presents no obstacle to the
reorganisation of the federation on linguistic lines, in fact it renders the task extremely
easy.
▪ Though India is by her origin not a contractual but an administrative federation,
federation has a real meaning and is not nominal. It also follows from the above that
whenever the parliamentary regime of a local state tends to break down, such a state
must become a loss to the cause of federalism. The issue of centralisation versus
decentralisation has two other aspects in the Indian constitution, one an emergency
and the other a non-emergency aspect.
▪ Professor Wheare, one of the main exponents of a rigid definition of the federal
principle, maintains that India has a quasi-federal constitution, mainly because
of the provisions of Articles 249, 352-60 and 371.4
▪ Thus the constitution provides for a reasonable balance between centre and states as
to the power of amendment with safeguards in favour of the states. The application of
a rigid definition of the federal principle to various types of existing federations may
deprive it of any practical meaning.
▪ Interference of the centre into the legislative powers of the states may also take place
according to Articles 252 and 253. However, in the first case central Parliament

31
 assumes legislative power in relation to local states only on the initiative of a
particular state or states and not without its (their) authorisation. In the second case
central Parliament can interfere with local powers in any matter connected with the
implementation of international treaties, agreements or conventions, bilateral or
multilateral. This, however, is an obvious consequence of its powers of external
sovereignty which cannot affect the federal status of the country. Adherents of the
theory of quasi- federalism may also quote in their support Article 254 of the
constitution. According to this article in the case of repugnance of local laws to
central laws the latter always prevail over the former. However, according to
paragraph 2 of the above article local laws may be reserved for the consideration of
the President and may thus keep their validity against central laws. Federations the
case of India is sui generis. To promote unity in extremely difficult conditions, she
started after gaining independence with a constitution imposed from above.
▪ Her central government has considerable powers if compared with the powers of the
states, but decentralising tendencies promoted by dynamic linguistic communities as
well as by static regional interests and by the appearance of local multi-party
governments are continuously at work. The provisions of the constitution are no
obstacle in their realisation. They may bring about changes on the political map of
India, as linguistic communities tend to get their own political status within the
federation. The balance between centralising and decentralising tendencies need not
be a matter of uncontrolled fluctuations but can be safeguarded with the help of
constitutional devices. Consolidation of local pressure groups and their growing
power in relation to the centre gives them the status of bargaining communities.
Though they have been unable to create initially a contractual formation, they
may to some extent give India the appearance of a contractual federation ex post.

Tillin, L., 2016. Asymmetric federalism. In The Oxford Handbook of the Indian
constitution.
▪ Many studies highlight constitutional asymmetry as a desirable feature of federal
systems in multinational countries. This article looks at India which, mainly because
of the special provisions for Kashmir in the 1950 constitution and the status of newer
small states in the north-east, is generally described as asymmetrically federal. I show
that, while India exhibits considerable de facto asymmetry, asymmetry in the

32
 constitutional powers granted to individual states has (i) not been important for
India’s ability to ‘hold together’ as often assumed and (ii) not entailed special
protection of cultural or national minorities. I thus cast doubt on the normative
political philosophy, particularly informed by Canadian and Spanish debates, that
advances the idea of asymmetrical federalism as a model of governance in potentially
divided societies.
▪ India’s constitution contains some nods to asymmetry, with regard to Jammu and
Kashmir and the tribally dominated states of the north-east. But, it has been shown in
this article that such asymmetry has (i) not been centrally important for India’s ability
to ‘‘hold together’’ and (ii) not entailed special protection for the rights of cultural
minorities in India in a manner suggested by the political philosophy that has
developed in Canada and Spain around the idea of asymmetrical federalism. The only
possible exception to this is in the special constitutional provisions for tribal
communities in the north-east, but it has been argued here that federalizing patterns in
the north-east should not be seen as representative of the dominant federal mindset.
Indeed those group rights that have been accorded to minorities in India, especially
Muslim personal law, have not been granted primarily to territorially concentrated
cultural groups. India’s federal design has been important for India’s ability to
accommodate groups (some of whom may consider themselves ‘‘nations’’) with
different ideas of what it means to be Indian. But we should question what the most
salient features of the federal system have been to this end. Asymmetry does not
appear to be one of them, in a formal constitutional sense at least.
▪ Linguistic reorganization of the states involved the accommodation of linguistic
differences, but not on a basis that allowed differential protection to any regional
language, and not on a basis that formed otherwise coherent ‘‘ethnic’’ or
‘‘cultural’’ federal sub-units. As James Manor argues, ‘‘ethnic’’ identities in
India tend to be cross-cutting rather than compounding. Once states were
reorganized along linguistic lines, their inhabitants discovered all the things that
divided them (Manor 1996). This makes India very different from Canada, for
example, where despite the presence of English-speaking, Protestant minorities
within Quebec, religious, linguistic, and ‘national’ identity are largely
coterminous.
▪ But, if asymmetry has not been important so far in helping India to cohere, there is
one situation in which an asymmetrical solution may be necessary. The status of

33
 Jammu and Kashmir is, as it stands, a poor example of asymmetrical federalism, but
asymmetrical status could be a necessary part of an eventual resolution to the conflict
in the region. This possibility does not negate the argument in this article. The level of
central government intervention in, and manipulation of, the state’s politics has been
greater than in any other state since independence. The conflict in Kashmir is
internationalized and, unlike any other state in India, there may be an international
component to any constitutional compromise over its status. We need to ask, however,
on what basis such asymmetry should or might be granted—in recognition of
Kashmir’s ‘‘distinct’’ status within the Union or as an acknowledgment of past
wrongs? Either would take the Indian federation into new constitutional waters.

Singh, Mahendra P., and Douglas V. Verney. "Challenges to India's centralized

parliamentary federalism." Publius: The Journal of Federalism 33, no. 4 (2003):
1-20
▪ Indian federalism has become less centralized as a result of popular pressures, the
breakdown of Congress dominance, and the fragmentation of political parties.
Economic challenges to cooperative federalism emerge from market reforms, the
search for investments, and the World Bank structural adjustment plans adopted in
selected states. Devolution of economic decision-making to the states aggravates
fiscal crises by facilitating populist political strategies and accentuating uneven
development. Political challenges arise from issues such as central vs. state control of
police and security forces; movements for the creation of new states; and the
implementation of constitutional provisions for village-level governance. Change in
India’s federalism has come about less through the adaptation of formal institutions
than through the proliferation of state-based political parties, aggregating varied
interests based on region, language, caste, class, or views on secularism. After the
elections of 1999, more than 20 parties managed to provide a stable national
coalition government, transforming the political process. A national multi- party
coalition again formed the government following the elections of 2004.
▪ India is widely believed to have become more of a federation. But we need to be
specific regarding the meaning of the term "more." It has several connotations. First,
it signifies that no longer does a powerful national party, the Indian National
Congress, control Parliament by winning a majority of seats.

34
▪ Instead, government is carried on by coalitions of parties. Coalition government in
Delhi has evolved over the years from the fractious and unstable coalition of 1989 to
the relatively stable National Democratic Alliance of 1999-2004. This has sometimes
created alliances between parties as disparate as the BJP of the Hindu nationalists and
the BSP of the Scheduled Castes. In an innovative, but ultimately short-lived,
experiment in Uttar Pradesh, these two parties rotated the post of chief minister,
allowing them six months each.
▪ Second, and partly as a consequence of coalition government, there is widely thought
to be less of a concentration of power in the Union government as a whole and in the
prime minister and the cabinet in particular. More federalism means that power is
wielded by other institutions than the Center, notably by the states, also by numerous
interest groups from business to farmers. If this is so, then India's "steel frame" of the
Indian Administrative Service and the Indian Police Service can be expected to play
less dominant roles, and to reflect the pluralism of India's changing society.
▪ It is commonly asserted that a federal system tends to be slower and less efficient than
unitary government, but the conclusive evidence for this is hard to find. Agreements
between the two levels of government continue to be worked out, and necessary
legislation is passed by parliaments and legislative assemblies. India is an example of
country that has, by and large, responded to the demands from state governments,
sometimes in novel ways.
▪ It is difficult to estimate the degree to which India is becoming more federal because
of two unknowns. One is the degree to which the state parties represented in the
cabinet have been the catalysts for change. Only when the cabinet documents are
available many years hence will this information be forthcoming. It is possible that
the presence of representatives in the cabinet from the state parties will be found to
have been the most important element in the transformation of India's federation.
▪ The other unknown is the degree to which the BJP is committed to federalism. Only if
the BJP wins a majority in some future election will the extent of its commitment
become apparent.

35
 Module II- Territory & Re-organization
This module focuses on the jurisprudence of articles 1 to 4 of the Constitution, which deal
with the power of the Parliament to acquire and cede territory and create states and alter their
boundaries. These themes have important implications for the understanding of sovereignty
and federalism under the Indian constitutional system. The module will also allow the
students to think carefully about the contemporary debates about federalism and the
formation of states and Union Territories.
Reorganisation: Case Laws and Readings
 Babulal Parate v. State of Bombay, AIR 1960 SC 51
 Mohd. Akbar Lone v. Union of India, Writ Petition (Civil), paras. Z-HH
 In Re: Article 370 of the Constitution Citation: 2023 INSC 1058
 Singh, Mahendra Prasad. "Reorganisation of States in India." Economic and Political
Weekly (2008): 70-75.
Cession and acquisition of territory: Case Laws
 In Re: Berubari Union and Exchange of Enclaves, AIR 1962 SC 845
 N. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1963 SC 533
 Ram Kishore Sen v. Union of India, AIR 1966 SC 644
 Maganbhai Ishwarbhai Patel v. Union of India, AIR 1967 SC 783
 In Re Mangal Singh, AIR 1967 SC 944
 R. C. Poudyal v. Union of India, AIR 1993 SC 1804

Union and its territory (Articles 1- 4)

Article 1 to 4 of Part I of the Constitution explains the Union and its territory.

Article 1
 1. (1) India, that is Bharat, shall be a Union of States.
 1[(2) The States and the territories thereof shall be as specified in the First Schedule.]
 (3) The territory of India shall comprise—
 (a) the territories of the States;
 2[(b) the Union territories specified in the First Schedule; and]
 (c) such other territories as may be acquired.

36
Article 2
 2. Parliament may by law admit into the Union, or establish, new States on such terms
and conditions as it thinks fit.
 2A. [Sikkim to be associated with the Union.] Rep. by the Constitution (Thirty-sixth
Amendment) Act, 1975, s. 5 (w.e.f. 26-4-1975).

Article 3
 3. Parliament may by law—
 (a) form a new State by separation of territory from any State or by uniting two or
more States or parts of States or by uniting any territory to a part of any State;
 (b) increase the area of any State;
 (c) diminish the area of any State;
 (d) alter the boundaries of any State;
 (e) alter the name of any State:
 4[Provided that no Bill for the purpose shall be introduced in either House of
Parliament except on the recommendation of the President and unless, where the
proposal contained in the Bill affects the area, boundaries or name of any of the States
1***, the Bill has been referred by the President to the Legislature of that State for
expressing its views thereon within such period as may be specified in the reference
or within such further period as the President may allow and the period so specified or
allowed has expired.]
 2[Explanation I.—In this article, in clauses (a) to (e), "State'' includes a Union
territory, but in the proviso, "State'' does not include a Union territory.
 Explanation II.—The power conferred on Parliament by clause (a) includes the power
to form a new State or Union territory by uniting a part of any State or Union territory
to any other State or Union territory.]

Article 4
 4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the
amendment of the First Schedule and the Fourth Schedule as may be necessary to give
effect to the provisions of the law and may also contain such supplemental, incidental
and consequential provisions (including provisions as to representation in Parliament

37
 and in the Legislature or Legislatures of the State or States affected by such law) as
Parliament may deem necessary.
 (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution
for the purposes of article 368.

Introduction
 Article 1 of the Constitution defines India, that is, Bharat as a ‘Union of States’. The
reasons behind this made clear by Dr. B.R. Ambedkar in the Constituent Assembly.
Ambedkar said the Indian Federation was a “Union” because it was inseparable, and
no State had the right to withdraw from the Indian Union. He said “The Drafting
Committee wanted to make it clear that while Indian was going to be a federation, the
federation was not the product of an agreement between states to join the federation,
and that since the federation was not the consequence of an agreement, no State had
the right to withdraw from the federation.
 The Union is a federation because it is indestructible. Although for the convenience of
administration, the country and people can be divided into different States, the
country is an integral whole, its people a single people living under a single imperium
coming from a single source. The Americans had to wage a civil war in order to make
sure that their federation was indestructible and the States had no right of secession.
The Drafting Committee was of the opinion that it was better to make it clear at the
outset than to avoid speculation or dispute”.
 It is necessary to distinguish the phrases ‘Union of India’ and ‘Territory of India’. The
Union of India includes only those States which enjoy the status of being members of
the federal system and share the distribution of powers with the Union. The Union
Territories are not included in the Union of states whereas the term Indian Territory
includes not only the States but also the Union Territories and other territories that
India may acquire. In the First Schedule of the Constitution, the States and Territories
are specified.

The accession of Indian States to the dominion of India

 Before the Indian partition of 1947, 584 Princely States existed in India, often known
as the Native States, which were not fully and formally the part of British India, areas
of the Indian subcontinent which had not been invaded or occupied by the British, but
under partial control, subject to subordinate alliances.

38
  The era of the princely states effectively ended in 1947 with Indian independence.
Around 1950, almost all principalities had either acceded to India or Pakistan. The
process of accession was largely peaceful, with the exception of Jammu and Kashmir
(whose ruler opted for independence but decided to join India after invasion by
Pakistani forces), Hyderabad (whose ruler opted for independence in 1947, followed a
year later by Indian police action and annexation of the state),
 Junagarh (whose ruler joined Pakistan but was annexed by India).
 While India officially gained independence, there was a desire for state reorganization
in a different part of India. While the demand for new states was mainly based on
language, constitutional makers held a variety of views. But since the Constituent
Assembly did not have enough time to examine such a huge issue and administrative
difficulty, they formed a Commission to investigate the matter.

Formation of States
 Dhar Commission
 Accordingly, in June 1948, the Constituent Assembly announced the establishment of
the Commission of the Linguistic Provinces, chaired by S.K. Dhar, to examine the
feasibility of this. In this report ( December 1948), the Commission recommended
that the reorganization of the Member States be based on administrative convenience
rather than on a linguistic basis.
 JVP Committee (Jawaharlal Nehru and Vallabhbhai Patel)
 The Dhar Commission report produced general disappointment and led to the
appointment by the Congress in December 1948 of another Linguistic Provinces
Committee, made up of three members, namely Jawahar Lal Nehru, Vallabhbhai
Patel, and Pattabhi Sitaramayya, and thus popularly known as the JVP Committee. In
its report (1949), the Committee reaffirmed the position of the Dhar Commission. The
Committee also recommended that the creation of new provinces should be postponed
for a few years so that they could concentrate on other matters of vital issues and not
allow ourselves to be distracted by this issue. The study also stated that if public
opinion is insistent and overwhelming, they have to submit to it as Democrats subject
to certain restrictions on India’s good as a whole.

39
Arrangement of States as on 26th January, 1950
 In the meantime, the Republic of India came into existence on 26 January 1950. The
constituent units of the Indian Union have found themselves classified into Part A,
Part B, Part C, and Part D. This was only a temporary arrangement, as a satisfactory
solution could not yet be found.
• Part A States included the provinces of the former governors. The nine States of Part
A were Assam, Bihar, Maharashtra, Madhya Pradesh (formerly Central Provinces and
Berar), Madras, Orissa, Punjab (formerly East Punjab), Uttar Pradesh (formerly
United Provinces), and West Bengal.
• Part B States included the former Princely States. Part B States were Hyderabad,
Jammu, and Kashmir, Madhya Bharat, Mysore, Patiala, and the Eastern Punjab States
Union (PEPSU), Rajasthan, Saurashtra, Travancore-Cochin and Vindhya Pradesh.
• Part C States comprised both the provinces of the former Chief Commissioners and
some of the Princely States. Part C States were Ajmer, Bhopal, Bilaspur, Cooch-
Behar, Coorg, Delhi, Himachal Pradesh, Kutch, Manipur, and Tripura.
• The Andaman and Nicobar Islands were the only State in Part D.

Continuation of demands for linguistic States

 Demands for the formation of States on a linguistic basis have increased further. In
October 1953, after the long-drawn agitation and death of Potti Sriramulu after a 56-
day hunger strike for the cause, the Government of India was forced to create the first
linguistic state, Andhra Pradesh, by separating the Telugu-speaking parts of the
Madras State.

Fazal Ali Commission

 The creation of the Andhra State increased the demand from other regions for the
formation of States on a linguistic basis. In December 1953, the Government
announced the creation of a Reorganization Commission of three-member States,
chaired by Fazal Ali, to examine the whole problem. The two other members of the
Commission were H.N. Kunzru and K.M. Pannikar. In its report, the Commission
sought a balanced approach between regional feelings and national interests. The
Commission proposed abolishing the four-fold division of states in keeping with the

40
 original Constitution and recommended the establishment of 16 states and 3 central
territories.
 The Commission also established the following four main principles as the basis for
reorganization-
1. Preserving and enhancing the security and unity of the country;
2. Financial, economic and administrative viability;
3. Linguistic and cultural homogeneity;
4. And the scope for the successful implementation of a development plan.

The States Reorganization Act,1956

 It entered into force in November 1956. This Act and the Seventh Constitutional
Amendment Act of 1956 abolished the distinction between Part A and the Part B
States and the Part C States. Instead, they were classified into two categories: states
and territories of the Union. This Act provided for 14 States and 6 Union Territories to
be established as follows:
 States
 Assam, Andhra Pradesh, Bihar, Bombay, J&K(by the instrument of accession),
Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh,
and West Bengal.
 Union Territories
 Andaman & Nicobar Islands, Delhi, Himachal Pradesh, Laccadive, Minicoy &
Amindivi Islands, Manipur, and Tripura.

The New States and Union Territories created after 1956

• The Bombay Reorganization Act, 1960, divided the State of Bombay into two States,
Gujarat and Maharashtra.
• The Nagaland State Act 0f 1962 established Nagaland as a separate State.
• The Punjab Reorganization Act,1966, split Punjab into Punjab and Haryana.
• The new State of Himachal Pradesh, consisting of the existing Union Territory of
Himachal Pradesh, was established by the State of Himachal Pradesh Act, 1970.
• The New States of Manipur, Tripura, Meghalaya and Union Territories of Mizoram
and Arunachal Pradesh have been established by the North Pastern Areas
(Reorganization) Act, 1971. Later Mizoram and Arunachal Pradesh were granted

41
 statehood by the State of Mizoram Act, 1986 and the State of Arunachal Pradesh Act,
1986.
• The new State of Sikkim was established by the Constitution Act (36th amendment)
of 1975.
• Goa was incorporated as a separate State of the Union by the State of Goa Act, 1987.
• 2000
• Chattisgarh was formed as a result of the Madhya Pradesh Reorganization Act,
2000, which came into force on 1 November 2000.
• 8 Nov. 2000
• Uttranchal came into existence on 8 November 2000 under the Uttar Pradesh
Reorganization Act, comprising the northern districts of Kumaon and the
Garhwal hills of Uttar Pradesh.
• 2000
• The State of Jharkhand was established by the Bihar Reorganization Act 2000
of 15 November, consisting of 18 southern districts of Chhota Nagpur and
Santhal Pargana of Biha.
• 2014
• The State of Telangana was established by the Andhra Pradesh Reorganization
Act 2014 and came into force on 2 June 2014.
• 31 Oct. 2019
• On 31 October 2019, the act reconstituted the former state of Jammu and
Kashmir into two union territories, Jammu and Kashmir and Ladakh.

Reorganisation Case Laws and Readings

Babulal Parate v. State of Bombay, AIR 1960 SC 51:

Facts
• The Prime Minister of India on the 22nd of December 1953 in the Parliament made a
Statement regarding a Commission to be appointed in order to inspect “objectively
and dispassionately” the issue of Indian States’ reorganisation “so that the welfare
of the people of each constituent unit as well as the nation as a whole is
promoted”.
• The Commission was appointed in the Ministry of Home Affairs under a resolution by
the Union Government on 29thDecember, 1953. After the Commission in due course

42
 submitted its report, a Bill entitled “The States Reorganisation Bill” on 18th April,
1956 was introduced first in the Lok Sabha in which Clauses 8, 9 and 10 was
regarding a proposal which focused on the formation of separate 3 units, i.e., Union
Territory of Bombay, as well as the State of Maharashtra together with Marathawada
and Vidharadha. The 3rd unit was the State of Gujrat as well as Saurashtra and Cutch.
• On the recommendation given by the President of India, the States Reorganisation
Bill, as per the proviso to Article 3 of the Constitution, was introduced to the Lok
Sabha which was further referred to a Joint Select Committee which was comprised
of both the Lok Sabha and Rajya Sabha.
• The Joint Select Committee, on its report dated 16th July, 1956 amended some clauses
of the Bill which was passed by both the Lok Sabha and the Rajya Sabha. The
President gave its assent to the Bill due to which it converted into the States
Reorganisation Act, 1956 on 31st August, 1956.
• Sec 8(1) of the impugned Act created a composite State of Bombay which was not
proposed originally in the Bill. The original Bill proposed the constitution of 3
different units. The new State of Bombay came into existence, as per the Act, from
1st November, 1956. On 12th September, 1956 a petition was filed by the appellant
under Article 226 of the Constitution in the Bombay High Court in which he
contended that the creation of the new State of Bombay as a single unit instead of
separate three units violated Article 3 of the Constitution since the Bombay
Legislature was deprived of an opportunity to express its opinion on the creation of
the new State of Bombay.

Whether Article 3 of the Constitution, amended by the Constitution (Fifth Amendment) Act,
1955 is violated due to the impugned Act?
 Observations/Obiter Dicta:
• The High Court properly emphasised in its judgment the fundamental content of the
2nd condition of the proviso to Article 3 that a reference of the proposal included in the
Bill is to be given to the Legislature of the State by the President in order for it to
express its opinions on the same within the time specified by the President.
• The words of the proviso are clear and stand with their bare reading meaning. The
2nd condition implies “what it states and what has to be referred to the State
Legislature is the proposal contained in the Bill;” it doesn’t have a strong effect so

43
 as to require a new reference whenever an amendment of the proposal included in the
Bill is moved and accepted following the rules and procedure of the Parliament.
• It is not disputed that the States Reorganisation was introduced in the House on
President’s recommendation. It is also not disputed that the proposal was referred to
and views of the Legislatures of the concerned State were received.
• “It will be improper to import the question of construction doctrines of democratic
theory and practice in other countries, unrelated to the tenor, scheme and words of
the provisions which we have to construe”.
• No extraordinary or obscure doctrine of “democratic process” is involved in the
proviso to Article 3 of the Constitution.
• Article IV, Section 3 of the Constitution of the United States of America is different
from the proviso to Article 3 of the Indian Constitution as the former provision
involves the consent of the State Legislature concerned but the latter requires a
reference of the proposal included in the Bill by the President to the State Legislatures
for the expression of their views.
• No difficulty in comprehending the expression “State” in Article 3 of the Indian
Constitution.
• The Parliament of India is vested with the power to admit/establish new States or
increase/diminish the area or alter the boundaries of an already existing State; the
concerned State Legislature only have the right to express their views on such a
proposal introduced in a Bill.
• An interpretation, which may invalidate the effect of Article 122, of Article 3 cannot
be accepted which is based on “certain abstract and somewhat illusory
ideas” characterised as a democratic process.
• The establishment of a composite new Bombay State as per Section 8 of the
impugned Act was a substantial change but it wasn’t a proper amendment of the
proposal originally made and it does not mean that the Legislature of the State had no
opportunity to express its views regarding all the facets of the proposal in the Bill.
• From the facts of the case, it’s not true that the State Legislatures did not have an
opportunity to express its views.
• If an amendment has such characteristics that it cannot be called as a real amendment
and is visibly in contravention of Article 3 of the Constitution then the issue will be of
the violation of a constitutional provision rather than the issue of validity of the

44
 proceedings which take place in the Parliament; which is not the situation in the
present case.
Judgment:
• It was held that Article 3 was not violated and the impugned Act or the sections
therein are valid.
• The appeal was dismissed with costs.
Conclusion:
 This case of Babulal Parate not only provides the true scope and process envisaged in
Article 3 of the Constitution of India, but also proves that the Parliament has
unambiguous and exclusive power to form and reorganize the States including the
power to alter the boundaries in order to diminish or grow their areas. The
Constitutional Bench judgment thereby comprehensively established the role of the
Parliament as well as the State Legislature concerned in such matters of great
importance.

Mohd. Akbar Lone v. Union of India, Writ Petition (Civil), paras. Z-HH
 Because, in seeking to downgrade the status of the State of Jammu and Kashmir into a
Union Territory (with a legislature), the J&K (Reorganisation) Act is ultra vires
Article 3 of the Constitution. Article 3 authorises the formation of new States, and the
alteration of areas, boundaries or names of existing States, but it does not authorise
the degradation of the status of an existing state into a union territory. This is made
even clearer by Explanations I and II to Article 3, where the word “state” is to be read
to include a “union territory”, and parliament’s power is deemed to include “the
power to form a new State or Union territory by uniting a part of any State or Union
territory to any other State or Union territory.” It is respectfully submitted that Article
3 provides a range of powers involving the inter-se alteration of states, the inter-se
alteration of Union Territories, but conspicuously does not authorise the degradation
of the status of a state into a Union Territory.
 It is respectfully submitted that the crucial right at stake here is the right to
representation, and to be governed by one’s elected representatives, as set out by this
Hon’ble Court in NCT of Delhi v Union of India, supra. Consequently, having once
achieved the degree of representation offered by statehood, the peoples of a state
cannot be retrograded to the lesser degree of representation offered by a Union
Territory.

45
  It is therefore submitted that for the purposes of Article 1, “states” and “union
territories” are treated differently, and “states” remain the constituent units of the
Indian Union. Consequently, it is respectfully submitted that the Article 3 of the
Constitution cannot be read to grant the power to the Union to convert the status of
states into Union Territories, as this power carries with it the necessary implication
that the Union could - if it chose - convert India into a “Union of Union Territories”
instead of a “Union of States.” It is respectfully submitted that the framers of the
Constitution could not have - and did not - vest so wide or untrameled a power in the
Union Government.
 S.R. Bommai v Union of India, supra, where it has been clearly held that “the
Courts should not adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to the states ... let it be
said that the federalism in the Indian Constitution is not a matter of administrative
convenience, but one of principle - the outcome of our own historical process and a
recognition of the ground realities.”
 Because it is respectfully submitted that this interpretation is supported by the
consistent history of our Nation, where the movement has always been from the status
of Union Territory to Statehood, and never the other way round.
 (R.C. Poudyal v Union of India, 1994 Supp 1 SCC 324). This is reflected in
Articles 371A to 371J, which provide a special status - in different respects - to the
states of Nagaland, Mizoram, Manipur, Maharashtra, Karnataka, Sikkim, and others.
It is respectfully submitted that the principle of pluralistic federalism would be set at
nought if one of the two parties to the federal relationship (i.e., the Union) can
unilaterally amend the terms of their relationship, without even passing through the
rigours of the amending process under Article 368.
 Because the right to autonomous self government and the right to an identity within
the federal framework are fundamental rights flowing from the right to life and other
provisions contained in Part III of the Constitution. Their removal in a manner that
has made a mockery of the “procedure established by law” is clearly in violation of
fundamental rights and ought to be struck down forthwith.

In Re: Article 370 of the Constitution Citation: 2023 INSC 1058

 On August 5th and 6th, 2019, over the course of two days, the Union government
repealed Article 370, revoking Jammu and Kashmir’s special status.

46
What is Article 370?
 Article 370 was the result of the Instrument of Accession, signed by the erstwhile
ruler of Jammu and Kashmir, Maharaja Hari Singh in 1947. Through this instrument,
Singh acceded the State to India but limited India’s power to legislate for the State to
matters of defence, external affairs and communication. Article 370 consisted of all
the conditions specified in this Instrument of Accession. Its purpose was to allow
Jammu and Kashmir to transition from an independent princely state to a democratic
state under the ‘Dominion of India’.
 Through Article 370 of the Constitution of India, Jammu and Kashmir was granted a
special constitutional status that set it apart from any other state of India. The
provision substantially limited Parliament’s power to legislate for the State and
effectively vested the greater power to the Jammu and Kashmir state legislature. The
provision acted as a means to ensure that the people of Jammu and Kashmir would
have complete say in their sovereignty, and all laws that applied to them came into
force with their consent.
 This provision had three main ingredients. First, India would not make laws in Jammu
and Kashmir except for three subjects included in the Instrument of Accession. The
Parliament could make laws beyond them only with the ‘concurrence of the Jammu
and Kashmir Constituent Assembly’.
 Second, no provisions of the Indian Constitution would be applicable to Jammu and
Kashmir except for Article 1, which declared India as a ‘Union of States, and Article
370. The President of India could apply provisions of the Indian Constitution in
Jammu and Kashmir through an executive order—this would insulate the Constitution
of Jammu and Kashmir from the influences of the Parliament of India.
 Third, according to Article 370(3), the special status of Jammu and Kashmir could not
be amended or repealed, unless the Constituent Assembly of Jammu & Kashmir
recommended it.

Presidential Orders of 2019

 On August 5th, 2019, President Ram Nath Kovind issued a presidential order (C.O.
272) amending Article 367 of the Constitution which explains how the Constitution
should be interpreted. The amendment made it such that the reference to the
‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative

47
 Assembly’. Initially, Article 370 could only be amended by the recommendation of
the Jammu and Kashmir ‘Constituent Assembly’.
 C.O. 272 allowed the Union to amend Article 370 without the recommendation of the
Constituent Assembly. Since Jammu and Kashmir was under President’s Rule at the
time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the
Union Parliament. So, a few hours after C.O. 272 was issued, the Rajya Sabha
recommended the abrogation of Article 370, through a Statutory Resolution.
 On August 6, 2019, President Kovind issued a Proclamation, C.O. 273, putting into
effect the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to
operate, except clause 1 which was amended to state that the Constitution of India
applies to the State of Jammu and Kashmir.
 This removed the special status of Jammu and Kashmir. The same day, Advocate
Manohar Lal Sharma filed a petition under Article 32 challenging the constitutionality
of the dilution of Article 370.
 On August 9, 2019, the Union Parliament bifurcated the State of Jammu and Kashmir
into two Union Territories by passing the Jammu and Kashmir Reorganisation Act,
2019. The two new Union Territories are Jammu and Kashmir and Ladakh—only the
former retained a legislative assembly.
 Two additional Article 32 petitions were filed by Kashmiri advocate Shakir Shabir
and the Jammu and Kashmir National Conference leaders, Mohammed Akbar Lone
and Hasnain Masoodi.
 Secondly, they contend that the Jammu and Kashmir Reorganisation Act, 2019 was
unconstitutional under Article 3. This Article empowers the Parliament to form new
States and alter or modify the boundaries of existing states. The petitioners argue that
Article 3 does not give the Parliament powers to downgrade federal democratic states
into a less representative form such as a Union Territory.
 The petitioners further contend that in a federal democracy, the right to autonomous
self-government, specifically with respect to constitutional and political status, is a
fundamental right under Part III of the Constitution and cannot be taken away without
the due procedure established by the law.
 December 11, 2023: The Constitution Bench upheld the Union’s abrogation of Article
370. They reasoned that the provision was a temporary measure meant to ensure
Jammu and Kashmir’s integration into India.

48
  While many Kashmiris were waiting for the possibility that the Supreme Court would
reverse the presidential order of 2019, the bench comprising India’s five most senior
Supreme Court judges unanimously agreed that Article 370 was always a temporary
provision, with its goal of eventually integration of Kashmir into India proper. The
bench also stated that there were no limitations on the president’s power to abrogate
the article and that the processes enacted to change the status of Jammu and Kashmir
into separate union territories were constitutionally valid. Moreover, the judges
affirmed that the Jammu and Kashmir constitution was null and void as it has been
replaced by the Indian constitution. The court noted, “Following the application of the
Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the
Constitution of the State of Jammu and Kashmir is inoperative and is declared to have
become redundant”
 While the promise of the forthcoming elections provides prospects of hope for some
Kashmiris, many continue to oppose the abrogation of Article 370 and the Supreme
Court’s ruling.

Singh, Mahendra Prasad. "Reorganisation of States in India." Economic and

Political Weekly (2008): 70-75.
 The movement for a separate province-formation in Bihar was linked partly with
Hindi linguistic identity and mainly with prospects of greater employment, middle
class professional earnings, and freedom from Bengali domination [Prasad 1992;
Mishra and Pandey 1996]. Ironically Bengali intelligentsia had patronised the
campaign to replace the Persian court language with Hindi around the last quarter of
the 19th century in the Hindi-speaking part of the Bengal presidency. This campaign
succeeded in its objective in 1881. It was not accompanied by the demand for making
a separate province of Bihar at that time [Das Gupta 1970].
 The Indian Statutory Commission chaired by John Simon in its report submitted to the
British government found that it was “manifestly impossible for us to recommend the
redrawing of the map of India according to some new pattern”. The report further
stated that:
 If those who speak the same language form a compact and self- contained area, so
situated and endowed as to be able to support its existence as a separate province,
there is no doubt that the use of a common speech is a strong and natural basis for

49
 provincial individuality. But it is not the only test – race, religion, economic interest,
geographical contiguity, a due balance between country and town and between
coastline and interior may all be relevant factors. Most im- portant of all, perhaps for
practical purposes is the largest possible measure of general agreement on changes
proposed, both on the side of the area gaining, and on the side of the area that is
losing territory...1
 In addition to using territorial patriotism as the bedrock of civic nationalism by
Congress moderates, Congress extremists had also leaned on Hinduism, and Gandhi
on Indian languages and a composite religious pluralism in search of “cultural”
nationalism with ethnic undercurrents.
 The constituent assembly of India, under constant pressure to redraw India’s internal
borders, formed a linguistic provinces commission (chaired by S K Dar) to study the
problem and write a report. In its report submitted in December 1948 the Dar
Commission recommended:
 Till nationalism has acquired sufficient strength to permit the formation of
autonomous provinces, the true nature and function of a province under our
Constitution should be that of an administrative unit functioning under delegated
authority from the centre and subject to centre’s overriding powers in regard to its
territory, its existence, and its functions. These powers are required to form new
provinces and to mitigate the rigour of government by linguistic majorities, to prevent
a breakdown of the administration on account of disputes amongst linguistic groups,
to check fissiparous tendencies and strengthen national feelings, and above all, to
build up an Indian nation.
 The central Congress leadership as well as the States Reorganisation Commission
(SRC) report (1956), largely accepted the linguistic principle in a few cases but
wished to maintain multilingual states for cultural homogenisation. The SRC report
stressed “obvious limitations to the realisation of unilingualism at the state level” due
to the following “limiting factors”: “(i) not all the language groups are so placed that
they can be grouped into separate states; (ii) there are a large number of bilingual belts
between different linguistic zones; and (iii) there exist areas with a mixed population
even within unilingual areas.”
 As it happened, under the pressure and persistence of linguistic, religious, and tribal
movements, the central government yielded, creating Andhra Pradesh (Telugu-
speaking), Tamil Nadu (Tamil-speaking), Karnataka (Kannada-speaking), Gujarat

50
 (Gujarati-speaking), Maharashtra (Marathi-speaking), Punjab which was trifurcated
into Punjab (Punjabi-speaking with a Sikh majority), Haryana (Hindi-speaking with
Hindu majority), and Himachal Pradesh (Hindi-speaking with Hindu majority) in the
1950s and 1960s. This process of territorial reorganisation extended to the north-east
in the 1960s and 1970s. Beginning with the bifurcation of Nagaland out of Assam
(1962), the process culminated in the creation of the so-called “seven sisters” – states
or the union territories – in the region: Arunachal Pradesh, Assam, Manipur,
Meghalaya, Mizoram, Nagaland and Tripura.
 The experience of the Indian political system suggests that federalism as a political
mechanism has been more successful in protecting the identity and interest of major
national minorities that happen to be state or provincial majorities (e g, Muslims in
Jammu and Kashmir, Sikhs in Punjab, Nagas in Nagaland, etc) than of internal
minorities and “discrepant” majorities, by which is meant the national majority
community that happens to be a provincial minority in some states.
 In practice, national majorities or pluralities (e g, Hindus and Hindi-speaking people)
or caste/tribe minorities have all often been victims of discrimination and violent
attacks in different parts of India with political and administrative processes often
failing them. The political class and the media mostly make more of Hindu-Muslim
communal violence, drowning the suffering and cries of internal minorities or
minorities within minorities and discrepant majority.
 The second model is what Brass calls “multi-ethnic” or “multinational state”, which
comprises “many nations bound together in a single political and territorial unit by
feelings of patriotism derived from ideology, memories of a common struggle against
external or alien powers, and rational calculations of common advantage in the
sharing of a single political structure, but not by a common nationality”. India has
obviously opted for the second model, which Brass also considers relevant not only
for India but also for the Indian subcontinent as a whole [Brass 1974].
 Brass’ model of “nationality-formation” in modern north India briefly alluded to
above is applicable to the process of states reorganisation done in India subsequent to
his study in the areas of the country where the classical Hindu mainstream culture
prevailed and to an extent still survives.
 Fourth, even after the creation of new states before and after independence, the union
of India is still a complex mosaic of religious, linguistic, caste, and tribal minorities
within and across the existing internal boundaries. Given the compact geographical

51
 template of the subcontinent and the endowment of complex demographic but an
overarching civilisational unity-in-diversity, no reorganisation of states can produce
inter- nally homogeneous and administratively and financially viable set of states in
all cases. Hence, endless fragmentation of the Indian nation state is not a solution but
a part of the problem of ungovernability and international instability.
 India is now face to face with hydra-headed communalism involving not only Hindus
and Muslims, but also other ethnic communities. We are challenged by the problem of
guaranteeing the rights and securities of “internal minorities” (minorities within
minorities, “discrepant majorities”), majorities that may be nationally so-called but
are provincial minorities or vice versa. Federal solution has historically been
predicated on the grant of statehood to provincial majorities within a composite
federal union. Federal theory and practice is yet to adequately address to these
problems. To address the problems of minorities within minorities and discrepant
majorities the federal theory must self-consciously engage more thoroughly than in
the past with the theories of constitutionalism and the rule of law, consociationalism,
and multiculturalism.
 Finally, if south Asia has to exit from the history of internecine feudal and colonial
feuding and warfare, it must become internally democratic and move ahead to
embrace the processes of regional and global integration like other supra-national
regions in the world
 It must make a concerted effort to emulate what David Held called “the cosmopolitan
model of democracy”. This model envisages a global and regional order comprising
multiple and overlapping networks of political, economic, and social power and
clusters of individual autonomy and rights “within and across each network of power”
spanning states, civil societies, and regional and global organisations. These
developments would give birth to “an empowering legal order – a ‘democratic
international law’”. The emergent legal principles would “delimit the form and scope
of individual and collective action within the organisations and associations of state
and civil society.

52
Cession and acquisition of territory: Case Laws

In Re: Berubari Union and Exchange of Enclaves, AIR 1962 SC 845

• In the case of Re Berubari Case, the States of Punjab and Bengal were to be
partitioned. A commission was appointed as Sir Cyril Redcliffe as its chairman for
apportionment of the state of Bihar. A boundary was fixed between India and Pakistan
are known as the Redcliffe line. After this, there arose certain tiffs between India and
Pakistan on the exact location of the apportionment. Sir Radcliffe apportioned the
district of Jalpaiguri between the two countries by giving some thanas to India while
remaining thanas to Pakistan. During the process, he omitted one than, ie; Berubari
Union No. 12, and was later awarded to India on 12Th of August, 1947. The omission
made by the commission and erroneous depiction on the map gave Pakistan the
liberty to claim the territory as its own.
• During all these processes was underway, the Indian Constitution came into force on
26th of January, 1950, and Article 1 of our constitution provided India shall be a Union
of States and shall be mentioned in Part A, B, and C of the First Schedule of the
constitution. West Bengal was included in Part A of the Indian Constitution and
Berubari Union No. 12 was also included in it as it was awarded by the boundary
Commission to India.
• The Pakistani Government contended its claim over the Berubari Union for the first
time in 1952. The areas under the Berubari union remained under the territory of India
till such time was a part of West Bengal. The dispute was resolved in 1958 by an
agreement wherein half of the Berubari Union was awarded to India while the other
half was retained by India.
The issues raised before the Hon’ble Supreme Court of India were:
1. Whether there is a need for legislative action to carry out an agreement relating to the
Berubari union?
2. Whether the case where there is such a need for action, does a law of parliament
concerning Article 3 of the Constitution of India, 1950 sufficient, or is an amendment
of the constitution following article 368 of constitution necessary, besides, or in the
alternative?

53
3. Whether the with Article 3 of the Constitution of India parliament empowered to
implement the agreement relating to Berubari’s Union or is there a need for
amendment under Article 368 of the Constitution for such action?
• After hearing arguments advanced by both the parties and considering the facts
of the case the Supreme court of India stated that the parliament has to first
amend article 3 of the constitution under article 368 of the constitution only if the
Parliament chooses first to pass a law amending Art. 3 of the Constitution as
indicated above; in that case, parliament may have to pass a law on those lines
under Article 368 of the constitution of India and then follow it up with a law
relatable to the amended Art. 3 to implement the agreement as law relatable to
Article 3 of the Indian constitution would be incompetent in this context the
bench opined.
• The court further ruled that even though the preamble forms as a key to the mind of
the makers of the constitution, and strictly talks about India being a sovereign yet it
cannot restrain the legislation from its functions, nor can it be used for deciding
ambiguous part of our constitution. It is not a source of the several powers conferred
to the parliament under the provisions of the Constitution; Such powers embrace those
expressly granted in the body of the Constitution and such as may be implied from
those granted; What is true about the powers is equally true about the prohibitions and
limitations; The Preamble of our constitution did not indicate the assumptions that the
first part of the Preamble postulates a very serious limitation on one of the very
important attributes of sovereignty.
• There are certain instances when the legislature seeks advice on the Constitutionality
and legality of a number of its own actions. In my opinion, the Supreme Court
must attempt to interpret the laws in such a way that it doesn't lower down the
quality of the Indian Constitution our forefathers have given to us and it
also doesn't crumple within the eyes of other countries tarnishing the image of the
lengthiest Constitution of the globe.
• The following case was named Berubari Union, as the Union Government referred
it to the Supreme Court of India after it allowed criticism.
• The Supreme Court of India held in the matter and clarified that Article 3(c) gives the
parliament the power to diminish State Territory but not to cede it. Merely
practicing and exercising this power under Article 3 is not enough. Parliament needs

54
 to bring an amendment to the Constitution using both Power & Procedure as
mentioned in Article 358. It should be considered that Article 3 can be practiced by an
ordinary majority in the Parliament, but under Article 368, a special majority is
requisite.
• Thus, the 9th Constitutional Amendment Act, 1960, was enacted to provide the
basis for the agreement. Now it is easy to understand the reason for the 100th
Constitutional Amendment Act, which allows exchanging enclaves between India
and Bangladesh, was enacted in the year 2015.

N. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1963 SC 533

• INTRODUCTION
• According to Article 1(3)(c), the term ‘acquired’ means any accession by India should
be considered to be a part of the territory but this leaves ambiguity concerning the
mode or purpose of acquisition leaving the question as it is considered a part of the
territory or not. The present case of Pondicherry which is a part of India was
taken from French Government by signing the treaty between the Indian and
French Governments but the question arises when a person filed a writ petition
regarding the territory whether it is a part of India or not. Justice Shankar and
Justice Ayyangar pronounced a landmark judgment i.e. N. Mastan Sahib v. Chief
Commissioner, Pondicherry 1in 1962 clarifying whether it is a part of India or
not and also defining Article 12 whether it includes authorities outside the
territory of India.
• LEGAL ISSUES
1. Whether Pondicherry is a part of the Territory of India or not?
2. When a territory is said to be acquired.
3. When a territory is said to be ‘acquired’ and what will constitute ‘acquisition’?
• The SC asked 2 questions to the Government to know the status of Pondicherry:
• (1) “whether Pondicherry which was a former French Settlement is or is not at present
comprised within the territory of India as specified in Article 1(3) of the Constitution
by virtue of the Articles of the Merger Agreement dated October 21, 1954, between
the Governments of India and France and other relevant agreements, arrangements,
acts, and conduct of the two Governments”?
• (2) “If the answer to Question 1 is that Pondicherry is not within the territory of India,
what is the extent of the jurisdiction exercised by the Union Government over the

55
 said territory and whether it extends to making all and every arrangement for its
civil administration, its defense and in regard to its foreign affairs. The
Government of India might also state the extent of jurisdiction which France
possesses over the area and which operates as a diminution of the jurisdiction ceded to
or enjoyed by the Government of India”?
• The Government claims that, despite having de facto control over Pondicherry, it is
not officially considered a part of India under clause 3 of Article 1, as there has been
no de jure transfer. Nonetheless, the Government asserts its full jurisdiction over
Pondicherry in terms of executive, legislative, and judicial matters by citing the
Foreign Jurisdiction Act of 1947.
• As a result, the Supreme Court has determined that if Pondicherry is not
officially part of India, the writ petitions and special leave are considered to have
failed and are dismissed. The relief sought and the authority against which relief
was claimed are also deemed to have failed. However, the Court has made it clear
that the dismissal of these petitions does not prevent the petitioners from
approaching the Court in the future if Pondicherry becomes part of the Indian
territory.
• And also Court said, “By appropriate action under the Foreign Jurisdiction Act, or by
Parliamentary Legislation under the entry 'Foreign Jurisdiction' the Appellate
Jurisdiction of the High Court or of this Court be enlarged under Arts. 225 and 138[1]
respectively so as to afford an adequate remedy for the inhabitants of these areas. To
this aspect of the matter, we consider that the attention of Government should be
drawn”.
• ANALYSIS AND CONCLUSION
• This case provides a strong precedent for cases related to annexation. This case tries
to define Art. 12 which also includes that part that is under the control of the
Government irrespective of whether it is part of the territory or not.
• And also clarify the jurisdiction of appeals from a quasi-judicial authority
outside India. And it is decided that the word ‘acquired’ under Article 1 (3)(c)7
should be interpreted as acquisition.
• The courts would be bound to recognize "acquisition" if the government of
India made a public notification, assertion, or declaration or treated a territory

56
 as an integral part of India. As a result, the territory would become a part of
India under Article 1(3)(c), the territory of the Union.

Ram Kishore Sen v. Union of India, AIR 1966 SC 644

• The Constitutional Act (18th amendment) 1966 adds two explanations to Article 3,
incorporating the decision of the Supreme Court in this case, which clarified the
term “State” in the term “State” which includes the term “Union Territories”
but since there is no such necessity with regard to the provision of Article 3, it is
also provided that the term “State” does not include the term “Union
Territories”. The reason is that, in the event of a change and alternation in the
borders of the State, it is necessary to seek the opinion of the States concerned; but
since the Union Territory is governed by the Parliament itself, the inclusion of the
Union Territory in the term “State” would have been redundant. The second
explanation further clarifies the Parliament’s Power. It provides that Parliament’s
power under Article 3 clause (a) includes the power to form a new State or Union
Territory by uniting a part of any State or Union Territory with any other State or
Union Territory.
• As a result of agreements which had taken place between India and Pakistan and
had been entered into by them in 1956, and it was between the Prime Minister of
India and Pakistan, half of that area was known as Berubari Union no.12, and an
area of Chilahati village measuring 512 acres was agreed to be transferred by
India to the nation of Pakistan.
• The petitioners were natives of villages such as Deuniapa, Chilahati(under Jalpaiguri
Thana), Senpara, and some places under Boda Thana, but when the village under
Thana Boda was being transferred to Pakistan because of partition which had taken
place in the year 1947, the natives had shifted to a village named Senpara and
Gouranga bazaar which were in Berubari Union No.12.
• The above agreement took place between the Prime Ministers of India and Pakistan to
resolve issues and conflicts between these two above-mentioned countries, and this
was jointly decided by both nations.
• This was a great dispute for the settlers of those areas so some questions arose due to
the implementation of this agreement and they were referred by the President of India
under Article 143subclause(1) of the constitution of India and Article 3 and Article
368 were referred as well. In accordance with that they passed the Constitution Act of

57
 1960 (Ninth Amendment). The provision in that inclusive of the date that it was to be
appointed by the notification in the “Official Gazette” for the transfer of mentioned
areas of that village to Pakistan.
• With reference, Berubari Union No.12(Second Schedule), among other things
will be divided so as to give half of the area to Pakistan, half of which is next to
India and will be remaining with India only. This division will be in a horizontal
manner in the direction of the northeast corner, of the place Debiganj Thana.

ISSUES
1. Whether the provisions regarding the transfer and partition of Union No.12 in the
second schedule of the Indian Constitution Act, 1960 (Ninth Amendment) were
capable to be implemented.
2. Whether any legislative action is necessary for implementing the agreement
related to Berubari Union.
3. Whether a law of Parliament can be related to Article 3 of the Constitution
sufficient or is an amendment of this Constitution according to Article 368 of the
Constitution necessary, in addition, or the alternative?
4. Whether the law of Parliament can be related to Article 3 of the Indian
Constitution sufficient for the implementation of the agreement related to the
Exchange of Enclaves or is an amendment of the Constitution relatable to Article
368 of the Indian Constitution necessary for this purpose.
5. Whether the transfer of these said areas of the Chilahati village to the nation of
Pakistan was constitutionally valid.
• The Court held that provisions of these three articles (Articles 2, 3, and 4) will be
applied to Union territories. The interpretation of the word “state” mentioned in
Article 3 of the Constitution has to be according to Section 3 sub-clause (58) part
(b) of the General Clauses Act, 1897, which means after the Seventh Amendment
of the Constitution Act, a state shall mean one and which is mentioned under the
first schedule of Constitution as well as Union Territory. Article 367(1) of the
Constitution specifies that General Causes Act shall be applied to the interpretation of
the constitution and any act of the legislature of India. It is important for petitioners to
prove that the act of the respondents is not legal and that the act could not be
implemented, but if the petitioners fail to give any evidence then they cannot oblige to

58
 prove to the respondents that their claim is untenable. The General Clause Act, of
1897 is applied to interpret Article 367(1) and Article 372 of the Constitution of India.
• Sec. 83 of the Indian Evidence Act, specifies that the maps so made for a cause can be
assumed to be accurate. In this context, the Court tells that the maps can be
assumed to be accurate as they are made by the Central/State Government of
India, but if made for any such cause the map shall be proved to be accurate.
Hence, the transfer of the Chilahati village to the state of Pakistan was valid. The
said portion of the Ninth Amendment Act of the Berubari Union No.12 was
capable of implementation. Hence the petitioner’s plea was dismissed by the
learned judge.
• The present case not only had an effect on the Chilahati Village and Berubari Union
No. 12 but also had an effect on Radcliffe Award along with the relationship between
India - Pakistan. The judicial bench carefully analyzed and discussed various issues
involved and studied the relevant material provisions which were questioned and they
had also seen the intention of the Parliament while going through the relevant
provisions provided by the legislation.
• The petitioners should not interfere in the work of the government in the
transfer of the Chilahati village to Pakistan, as UOI and West Bengal had clearly
mentioned under the Radcliffe Award, that the area belongs to Pakistan and it
has to be transferred. The ‘horizontal’ division has to be done from the direction
of the northeast of Debiganj Thana which cannot be considered mathematically
in that way.
• This is not mentioned here anything specifically in the provision that in what shape it
has to be only a direction is given that it should be starting from East to West. While
dividing the areas it should be kept in mind Berubari Union No.12 is to be halved.
• The petition was dismissed because it was cleared by the Radcliffe award that
the portion of that village was to be transferred so there was no point in
examining the facts on evidence.

Maganbhai Ishwarbhai Patel v. Union of India, AIR 1967 SC 783

Facts of the case
• There was a border dispute between India and Pakistan as to the Great Rann of
Kutch, marshy land that lies between the Sindh province (Pakistan) and the

59
 mainland of kutch (India). Due to its marshy nature and being underwater for
approximately four months a year the boundaries of the land were not defined. Both
Pakistan and India approached the arbitration for resolving the dispute. As a result, the
arbitration awarded the disputed land to Pakistan. India accepted the award and
proceeded with the cession of the territory. While the treaty was being executed some
petitioners approached the supreme court claiming that the land awarded to Pakistan
is a cession of the union territory of India and any alteration to the boundaries of the
union territory of India invites amendment of the first schedule of the Constitution (as
discussed above).
• Argument presented by the Government of India
• The government argued that the boundaries of the disputed area kept shifting
due to the nature of the area. The boundaries of the Union of India were not
certain and it did not include the disputed area. Therefore, the amendment to the
1st schedule was not attracted, and by the execution of the treaty, the boundary
can be defined.
• The Supreme Court supported the government by saying that the arbitration
award does not obligate the Indian government to cede the Indian territory
therefore no constitutional amendment is necessary to cede the Indian territory.
Furthermore, it stated that the government of India has accepted the award by the
arbitration, And put forward that when a Treaty comes into force it needs to be
complied with by all the wings of the government that is the judiciary, the legislature,
and the executive, or any of them who possesses the part to make the necessary
changes.
• The Court while deciding on the issue said that the case deals with international law
as well as domestic law. Therefore, it discussed provisions from various other
countries like the United States of America, England, and France to support the view
that the Indian Constitution does not provide any clear direction towards enforcement
of treaties as provided under the Constitution of America and France.
• The Court stated that the present case does not deal with the cession of Indian
territory but defining the boundaries between two States. Courts discussed Article 253
which empowers the Parliament to make any law regarding the implementation of a
treaty or an agreement. Also referred to the Article 1,3 and 73 and entries 13 and 14 of
the list one in the Seventh Schedule to emphasize the powers that the Parliament has
to implement International treaties with foreign Nations.

60
 • Therefore the Supreme Court concluded that the power of government to seed
the next line through International treaties and agreements is it is an exclusive
power of the Parliament and no Constitutional provisions are needed to be
amended but it cannot change the boundaries of the Union of India that have
been already marketed without amending the first schedule of the Constitution.

In Re Mangal Singh, AIR 1967 SC 944

• The Punjab Reorganisation Act of 1966-hereinafter called ‘the Act’-was enacted with
the object of reorganising the State of Punjab. The act came into force on the 1st of
November ,1966 as a consequence of which the eastern hilly areas of the old state
were transferred to Himanchal Pradesh . Chandigarh territory in Kharar was
constituted as a union territory and the rest got split in parts into the state of
Punjab and Haryana.
• Punjab earlier had a bi-cameral legislature with 154 members in the Legislative
Assembly and 51 members in the Legislative Council. The new State of Punjab
consisted of 87 members. and the Haryana Legislative Assembly consisted of 54
members. The new State of Punjab also had a bi-cameral Legislature.
• 16 members names were set out in the Seventh Schedule (Act) to be members of the
Legislative Council, the rest of them continued to be members of the Legislative
Council of the new State of Punjab. Out of the 16 members who ceased to be
members of the Legislative Council, 14 members, it is claimed by the appellants,
belong to the Haryana area and 2 to the Himachal Pradesh Union territory.
• The Act was challenged as “illegal and ultra vires of the Constitution” on diverse
grounds in a writ petition filed by the two appellants in the High Court of Punjab. The
High Court rejected the petition.
• Issue
• (1) Constitution of the Legislative Assembly of Haryana by s. 1 3(1) of the Punjab
Reorganisation Act, 1966, violated the mandatory provisions of Art. 170(1) of the
Constitution
• (2) By enacting that 8 members of the Legislative Council who were residents of the
Union territory of Chandigarh continued to sit in the Legislative Council in the new
State of Punjab, the members elected to the Legislative Council from the Haryana
area unseated, there was denial of equality.
1. The appeal must be dismissed of the appellants

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 2. Power to reduce the total number of members of the Legislative Assembly below
the minimum prescribed by Art.170 (1) is implicit in the authority to make laws under
Art. 4 of Constitution. Such a provision is undoubtedly an amendment of the
Constitution, but by the express provision provided in Art. 4(2) , no such law which
amends the First and the Fourth Schedule or which makes supplemental, incidental
and consequential provision is to be deemed an amendment of the Constitution for,
purposes of Art. 368. The Constitution also contemplates by Art. 4 that in the
enactment of laws for giving effect to the admission, establishment or formation
of new States or alteration of areas and the boundaries of those States power to
modify provisions of the Constitution in order to tide, over a temporary difficulty
may be exercised by the Parliament.
3. Parliament could not make adjustments as would strictly conform to the
requirements of Art. 171(3) without fresh elections. It, therefore, adopted an ad hoc
test and unseated members of the Council who were110 residents of the Haryana area.
There was, however, no discrimination in unseating members from the Haryana Area
of which appellants could complain. The appellants were not the sitting members of
the Legislative Council of the old State and no personal right of the appellants was
infringed by unseating those members. A resident of the State of Haryana merely
because of that character, cannot claim to sit in the Punjab Legislative Council.
By allowing the members from the Chandigarh area to continue to remain
members of the new State of Punjab no right of the residents of Haryana was
violated.
• Rule of Law–
• The provision of the law which was under scrutiny was the Punjab Reorganisation
Act, 1966 as “illegal and ultra vires of the Constitution” on diverse grounds.
• Conclusion
• In Conclusion it could be said that through this case the need for the organs of a
state such as the legislative, executive and judicial are necessary to be setup by
the parliament is evident and where there exists no organ prior to the setup of a
new state it will deemed to be not admitted according to Article 4.

R. C. Poudyal v. Union of India, AIR 1993 SC 1804

• The case of R.C. Poudyal vs Union of India largely deals with the issue of reservation
in the then newly constituted Legislative Assembly of Sikkim. The case focuses on the

62
 constitutional validity of the reservations made by the Parliament in the state of
Sikkim and determines the concerns related to such representations. In order to
fathom the context for an argument the court largely relies on, it is imperative to know
the historical circumstances due to which these reservations were put into question.
• The Union of India was of the opinion that the Parliament has been given a power
under Article 2 which gives them the authority to admit new States into the Union on
such terms that it deems fit and that these terms were not subject to Judicial Review.
The Union argued that this was a political question and was outside the scope of the
Judiciary. The Court contended that Article 2 bequeaths broad powers to the
Parliament and does give a certain amount of flexibility to the Indian Union with
respect to admission of new States, but this power was not to be considered as non-
reviewable or unfettered.
• The Basic Structure doctrine was an existing doctrine at that time and hence, there
was no unlimited power that was to be vested in the Parliament. Further, the Attorney
General on behalf of the Union argued that the newly inserted Article 371F began
with a non obstante clause and therefore the other provisions of the Constitution
would not apply to the State of Sikkim. Hence, the Court must not be the judge of the
validity of such matters. However, this argument was flawed in nature because in
cases where the Parliament does not have the power to change the constitution due to
the constraints that the Basic Structure doctrine carries, it also cannot use a non
obstante clause and continue to go against the structure of the Constitution. That
would tantamount to unlawful use of authority. Therefore, the judiciary must have
sizable power to review the conditions on which a state is admitted, in cases where the
Parliament has been inconsistent with already existing provisions.
• The Court also elucidated further on the issue of Article 2, and concluded that the
newly admitted state cannot be completely equal to the already existing states of the
Union as the Parliament has the power to admit states on certain conditions as they
deem fit, however, these conditions must not establish a system that is alien to the
conventional institution that the Constitution envisages. The vagueness of the ‘alien
system’ was something that should have been questioned. This sort of vague
understanding of such law impermissibly puts off basic principles to be interpreted
subjectively on an ad hoc basis with the consequent possibilities of discriminatory
application.

63
 • However, it was the minority view of L.M Sharma, C.J.I. which was transcendental-
Article 330 clause (2) and article 332 Cl. (3) laid down the rule of maintaining the
ratio between the seats and the population. This proves to be vital because the main
goal for reservations is the principle of equal status. Therefore, it is safe to say that the
issue of inadequate representation will not be resolved with this particular reservation,
consequently applicable provisions are known to be flexible to authorize broader
discretion to attain proportionate representation. This sort of excessive representation
will give rise to unequal status.

Module III – Legislative Competence: Territoriality

Clause [Art. 245]
 Legislative competence review is one of the most important facets of judicial review
under the Indian Constitution. The Indian Constitution lays down a detailed subject-
wise division of legislative powers between the Union and states. Despite this,
numerous controversies have historically arisen about the interpretation of this
division with major implications for federalism.
 This module focuses on these themes, primarily through Supreme Court’s decisions.
Case Law:
Territoriality Clause [Art.245]
 Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118
 Poppatlal Shah v. State of Madras, AIR 1953 SC 274
 State of Bihar v. Charusila Dasi, AIR 1959 SC 1002
 Karulkar v. State of Gujarat, (1994) 5 SCC 459
 GVK Industries v. Income Tax Officer, (2011) 4 SCC 36
Doctrine of Pith and Substance
 Governor-General in Council v. Province of Madras, AIR 1945 PC 98
 Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, AIR 1947 PC 60
 Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019
 Kartar Singh v. State of Punjab, (1994) 3 SCC 569
Doctrine of Harmonious Construction
 Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044
 ITC Ltd. V. Agricultural Produce Market Committee, AIR 2002 SC 852

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 Residuality Clause [Art.248]
 Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 465
 Union of India v. H.S. Dhillon, AIR 1972 SC 1061
Repugnancy Clause [Art. 254]
 State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375
Recommended Readings:
 Relevant chapters of MP Jain and VN Shukla

Territoriality Clause [Art.245] Case Laws

Article 245 in The Constitution Of India 1949

 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.

Introduction
Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by
Parliament shall be deemed to be invalid on the ground that it would have extra-
territorial operation’. Thus, a legislation cannot be questioned on the ground that it
has extra-territorial operation.
 It is well-established that the Courts of our country must enforce the law with the
machinery available to them; and they are not entitled to question the authority of the
Legislature in making a law which is extra- territorial.
 Extra-territorial operation does not invalidate a law. But some nexus with India may
still be necessary in some of the cases such as those involving taxation statutes.
 The Legislature of a State may make laws for the whole or any part of the State. Now,
this leaves it open to scrutiny whether a particular law is really within the competence
of the State Legislature enacting it. There are plethora of cases that have stated that
the laws which a state is empowered to make must be for the purpose of that State.

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Doctrine of Territorial Nexus
 Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There
are two conditions that have been laid down in this respect:
 The Connection (nexus) must be real and not illusory.
 The liability sought to be imposed must be pertinent to that connection.
If the above two conditions are satisfied, any further examination of the
sufficiency of Nexus cannot be a matter of consideration before the courts.
 In various cases relating to taxation statutes, the courts have time and again stated that
it is not necessary that the sale or purchase should take place within the Territorial
Limits of the State. Broadly speaking local activities of buying or selling carried in
the State in relation to local goods would be sufficient basis to sustain the taxing
power of the State, provided of course, such activities ultimately result in concluded
sale or purchase to be taxed.
 There is also a Presumption of Constitutionality that the Legislature is presumed not
to have exceeded its constitutional powers and a construction consistent with those
powers is to be put upon the laws enacted by the Legislature.
 It is well-established that the Parliament is empowered to make laws with respect to
aspects or causes that occur, arise or exist, or maybe expected to do so, within the
territory of India and also with respect to extra-territorial aspects or causes that have
an impact or nexus with India.
 “Such laws would fall within the meaning, purport and ambit of grant of powers of
Parliament to make laws ‘for the whole or any part of the territory of India’ and they
may not be invalidated on the ground that they require extra territorial operation. Any
laws enacted by the Parliament with respect to extra territorial aspects or causes that
have no nexus with India would be ultra vires and would be laws made for a foreign
territory.”
 This clearly indicates that as long as the law enacted by the Parliament has a nexus
with India, even if such laws require extra territorial operation, the laws so enacted
cannot be said to constitutionally invalid. It is only when the laws enacted by the
Parliament with respect to extra territorial aspects or causes that have no nexus with
India’ that such laws ‘would be ultra vires.

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Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118
 In the instant case, a company which was registered and incorporated in also which
also carried out its business in India through a sleeping partner. The firm made a
staggering profit in that accounting year. The income tax authorities sought to levy a
tax upon the company of the respondent. The income tax authority was challenged by
the respondent, but it was held by the privy council that there existed the doctrine of
territorial nexus and held the tax valid. It is said that the major part of that income was
extracted from British India was the sufficient ground to establish a territorial nexus.
 A company that was registered in England was a partner in a firm in India. The Indian
Income-tax Authorities sought to tax the entire income made by the company. The
privy council applied the Doctrine of Territorial Nexus and held the levy tax valid.
 The resulting general conception as to the scope of income tax is that given a
sufficient territorial connection between the person sought to be charged and the
country seeking to tax him income tax may properly extend to that person in respect of
his foreign income.
 The result is that the validity of the legislation in question depends on the sufficiency
for the purpose for which it is used of the territorial connection set forth in the
impugned portion of the statutory test. Their Lordships propose to confine themselves
to that short point and do not propose to lay down any general formula defining what
territorial connection is necessary.
 In their view the derivation from British India of the major part of its income for a
year gives to a company as respects that year a territorial connection sufficient to
justify the company being treated as at home in British India for all purposes relating
to taxation on its income for that year from whatever source that income may be
derived. If it is so at home in British India, it is a person properly subject to the
jurisdiction of the Central Indian Legislature.
 It is unnecessary to consider whether the statutory test is a satisfactory definition of
residence. That is an abstract question. It is sufficient to come to the conclusion that a
company satisfying the statutory test is a person within the territory of British India
so far as concerns taxes on its income accruing during the period when the test is
satisfied.

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Poppatlal Shah v. State of Madras, AIR 1953 SC 274

• This is an appeal against the order passed by the division bench of Madras High
Court, against a criminal appeal, which convicted the appellant under section 15 of
the Madras General sales tax act. The appellant was directed to pay fine of Rs. 1000/-
and imprisonment of 3 months.
• The appellant, Mr. Poppatlal Shah, was a partner in a firm under the name Indo
Malayan Trading Company. The company was based in Madras and also had its head
office there only. The business that firm conducting was with sale and purchase of oil,
sago, and kirana (confectionary) items1.
• The dispute arose for the non-payment of taxes in Madras under Madras Sales Tax
Act, and so was the suit instituted against him. In the course of business, he used to
pay sales tax in Calcutta. His business was with respect to the sale of goods and
delivery was done in other states.
• The business was conducted in such a way that the company in their Madras head
office used to get orders from merchants in Calcutta. Thereafter, the orders were
dispatched to Calcutta by rail and steamers. All the monetary transaction was done in
Calcutta at the time of delivery of orders to the consignees. He was later convicted,
and sentencing was pronounced.
• Briefly discussing the outline of case and procedural history for understanding
purpose, appellant argued that they were liable to pay taxes in Calcutta as delivery of
goods took place there and mere orders were received in Calcutta only. On the other
hand, state had made an argument that true test is to look where sale took place and
not where the goods are to be delivered. Further, state argued that they used to
maintain all the records in Madras, hence they are liable to pay taxes in Madras only.
High Court agreed with the contentions of the state.. Hence the appeal before the
Supreme Court.
• Supreme Court took note of the contentions raised by the appellant that we need to
have a proper interpretation and construction of the legislature and when interpreting
the whole statute, it is clear that act doesn't authorize to levy tax upon the sale where
goods are delivered outside the state/province.
• Statute must be read as whole is basically a secondary rule which means that the
constituent parts of the statute i.e. preamble, every word, phrase, or any sentence are
to be read together so as to achieve the actual intent of the statute.

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• In interpreting the statute and considering the wide scope of statute and the word sale
w.r.t the Madras Sales tax Act, the act itself defines the purpose that tax has to be
levied on sale transactions. In my opinion, the Supreme Court has rightly interpreted
the statute and also given wide ambit to the word sale and also referred to what
actually is considered sale under Sale of Goods act.
• Clearly, sale under Sale of Goods Act is the ownership of the property has to be
transferred to the other party and then only sale would be concluded. During the
interpretation of the phrase sale, few elements were laid down i.e. Order placing,
bargaining/negotiating, processing the order, delivery, and possession. For sale to be
considered complete, these elements needs to be fulfilled and actual ownership and
possession needs to be changed.
• Though a Provincial Legislature could not pass a taxation statute which would be
binding on any other part of India it was quite competent for a province to enact a
legislation imposing taxes on transactions concluded outside the province provided
there was a sufficient and real territorial nexus between such transactions and the
taxing province.
• It admits of no dispute that a Provincial Legislature could not pass a taxation statute
which would be binding on any other part of India outside the limits of the province,
but 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.
• This principle, which is based upon the decision of the Judicial Committee in Wallace
Brothers etc. & Company v. Commissioner of Income-tax, Bombay(1) has been - held
by this court to be applicable to sale tax legislation, in its recent decision in the
Bombay Sales Tax Act case (2) and its propriety is beyond question.
• As a matter of fact, the legislative practice in regard to sale tax laws adopted by the
Provincial Legislatures prior to the coming into force of the Constitution has been to
authorise imposition of taxes on sales and purchases which were related in some
manner with the taxing province by reason of some of the ingredients of the
transaction having taken place within the province or by (1) [1948] F.C.R. I (P.C.).

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State of Bihar v. Charusila Dasi, AIR 1959 SC 1002
 In the instant case, the state of Bihar passed a legislation which dealt with the motive
to safeguard the properties relating to the Hindu religious trusts. This act consists of
all the trusts within the territorial limits of Bihar. So the respondent Madea trust deed
several of her properties in situated in Bihar and Calcutta, and the trust was inside the
territorial limits of Bihar. Several questions were raised about the scope of this act.
 It was held that the act passed by the state of Bihar could have the effect over the
property situated outside the territorial limits of Bihar keeping in mind that the trust
must be situated with the limits of the state and there exist the sufficient nexus.
 Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the
protection and preservation of properties appertaining to the Hindu religious trusts.
The Act applied to all trusts any part of which was situated in the state of Bihar.
The Respondent created a trust deed of her properties of several houses and land in
Bihar and Calcutta.The trust being situated in Bihar.

Issue -The main question for decision was whether the Act apply to trust properties
which are situated outside the state of Bihar. Can the legislature of Bihar make a law
with respect to such a trust situated in Bihar and other properties appertaining to such
trust which is situated outside Bihar?

Decision - Applying the doctrine of territorial nexus, the Supreme court held that the
Act could affect the trust property situated outside Bihar, but appertaining to a trust
situated in Bihar where the trustees functioned. The Act aims to provide for the better
administration of Hindu religious trusts in the state of Bihar.The trust is situated in
Bihar the state has legislative power over it and also over its trustees or their servants
and agents who must be in Bihar to administer the trust.

What is necessary is that the connection between the trust and the property
appertaining thereto is real and not illusory and that the religious institution and the
property appertaining thereto form one integrated whole as one cannot be dissociated
from the other.

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Karulkar v. State of Gujarat, (1994) 5 SCC 459
 The hon’ble supreme court in this instant case of Shrikant Bhalchandra Karulkar v.
State of Gujarat held that the state legislature is conferred with the power to enact
legislation for extra-territorial operations complying with the provisions enshrined
under article 245 and 246.The laws made by the state legislature is applicable to a
person and his acts within the territorial limits of a state is not considered as extra
territorial.
 In this case, it was dealt with the legislative competence to make Laws having extra
Territorial operation in view of the provisions of Article(s) 245 and 246 of the
Constitution of India.
 It was held by the court that so long as the Law made by State legislature applies to
the persons residing within its territory and to all things and acts within its territory, it
cannot be considered as extra-Territorial.
 It was held that, “A law passed by a state legislature can’t be considered extra-
territorial as long as it extends to people who live in that state’s jurisdiction, as well as
all activities and acts that take place there.”
 The court said that state cannot be considered to have extra-territorial operations if the
laws enacted and the subject matter have adequate and justifiable nexus.
 Moreover, it also provided two conditions to be satisfied viz.
 The nexus should be real, not an illusion.
 Charges imposed by such statute must be pertinent to the connection.

GVK Industries v. Income Tax Officer, (2011) 4 SCC 36

In GVK, the following questions were referred to the Constitution bench:
 (1) Is the Parliament constitutionally restricted from enacting legislation with respect
to extra-territorial aspects or causes that do not have, nor expected to have any,
direct or indirect, tangible or intangible impact(s) on, or effect(s) in, or consequences
for: (a) the territory of India, or any part of India; or (b) the interests of, welfare of,
wellbeing of, or security of inhabitants of India, and Indians?
 (2) Does the Parliament have the powers to legislate “for” any territory, other than
the territory of India or any part of it?
 The Court explained the constitutional scheme by holding, “The grant of the power to
legislate, to the Parliament, in Clause (1) of Article 245 comes with a limitation that

71
 arises out of the very purpose for which it has been constituted. That purpose is to
continuously, and forever be acting in the interests of the people of India.
 It is a primordial condition and limitation… Clause (2) of Article 245 carves out a
specific exception that a law made by Parliament, pursuant to Clause (1) of Article
245, for the whole or any part of the territory of India may not be invalidated on the
ground that such a law may need to be operated extraterritorially. Nothing more.”
 It was specifically held that any laws enacted by Parliament with respect to
“extra- territorial aspects or causes” which have “no impact on or nexus with
India” would be ultra vires Article 245 of the Constitution of India.
 In a few Tribunal decisions such as Ashapura Minichem (discussed here and here),
there were remarks that the doctrine of territorial nexus may not necessarily be
relevant in tax laws (“It is thus fallacious to proceed on the basis that territorial nexus
to a tax jurisdiction being sine qua non to taxability in a jurisdiction is a normal
international practice in all systems. This school of thought is now specifically
supported by the retrospective amendment to section 9”).
 GVK impliedly confirms that those observations must be read in their context.
 The issue of whether in particular Section 9(1)(vii) especially after the recent
amendments satisfies the nexus requirements, is still unanswered. As Ashapur
Minichem held, the “render + utilize” formula of Ishikawajima and Clifford Chance is
now statutorily overridden by the Finance Act, 2010.
 Perhaps, Courts may now again insist on a factual “live link” to be established
before the provisions of S. 9(1)(vii) can be invoked.
 In a nutshell, Parliament is well within its capacity to make laws which have an
extra-territorial application provided there exists a real connection with cause or
effect in the country as long as there is some mechanism of enforcing that law.
 It can be well understood that while enforcing the Customs Act, in wake of this new
amendment, transactions that have some effect on the economy of the country can be
targeted by making parties to such transactions liable, even if they are situated outside
the territorial limit of the country and are not Indian nationals.
 Thus, in the light of these judgments and other tools available for interpretation of
Section 1(2) of the Customs Act, the extra-territorial sweep of the newly amended
Customs Act can be appropriately tempered to include all shady transactions
attempted with the purpose of tax evasion, provided the authorities have a necessary
enforcement mechanism in place....

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Article 246
 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 1 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.

Doctrine of Pith and Substance

 The basic purpose of this doctrine is to determine under which head of power or field
i.e. under which list (given in the Seventh Schedule) a given piece of legislation falls.
 Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most
important or essential part of something’.
 Doctrine of Pith and Substance says that where the question arises of determining
whether a particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter. Thus, if the substance falls
within Union List, then the incidental encroachment by the law on the State List does
not make it invalid.
 This is essentially a Canadian Doctrine now firmly entrenched in the Indian
Constitutional Jurisprudence.
 This doctrine found its place first in the case of Cushing v. Dupey. In this case the
Privy Council evolved the doctrine, that for deciding whether an impugned legislation
was intra vires, regard must be had to its pith and substance.

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Need for the Doctrine of Pith and Substance in the Indian Context
 The doctrine has been applied in India also to provide a degree of flexibility in the
otherwise rigid scheme of distribution of powers. The reason for adoption of this
doctrine is that if every legislation were to be declared invalid on the grounds that it
encroached powers, the powers of the legislature would be drastically circumscribed.
 “It is settled law of interpretation that entries in the Seventh Schedule are not powers
but fields of legislation. The legislature derives its power from Article 246 and other
related articles of the Constitution. Therefore, the power to make the Amendment Act
is derived not from the respective entries but under Article 246 of the Constitution.
 The language of the respective entries should be given the widest scope of their
meaning, fairly capable to meet the machinery of the Government settled by the
Constitution. Each general word should extend to all ancillary or subsidiary matters
which can fairly and reasonably be comprehended in it. When the vires of an
enactment is impugned, there is an initial presumption of its constitutionality and if
there is any difficulty in ascertaining the limits of the legislative power, the difficulty
must be resolved, as far as possible in favour of the legislature putting the most liberal
construction upon the legislative entry so that it may have the widest amplitude.”

Incidental or Ancillary Encroachment:

 The case of Prafulla Kumar Mukherjee v. The Bank of Commerce, succinctly
explained the situation in which a State Legislature dealing with any matter may
incidentally affect any Item in the Union List. The court held that whatever may be
the ancillary or incidental effects of a Statute enacted by a State Legislature, such a
matter must be attributed to the Appropriate List according to its true nature and
character.
 Thus, we see that if the encroachment by the State Legislature is only incidental in
nature, it will not affect the Competence of the State Legislature to enact the law in
question. Also, if the substance of the enactment falls within the Union List then the
incidental encroachment by the enactment on the State List would not make it invalid.
 However, the situation relating to Pith and Substance is a bit different with respect to
the Concurrent List. If a Law covered by an entry in the State List made by the State
Legislature contains a provision which directly and substantially relates to a matter
enumerated in the Concurrent List and is repugnant to the provisions of any existing

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 law with respect to that matter in the Concurrent List, then the repugnant provision in
the State List may be void unless it can coexist and operate without repugnancy to the
provisions of the existing law.

Important Supreme Court Judgments on the Doctrine of Pith and Substance

 There are hundreds of judgments that have applied this doctrine to ascertain the true
nature of a legislation. In the present post, I will discuss some of the prominent
judgments of the Supreme Court of India that have resorted to this doctrine.
 1. The State of Bombay And Another vs F.N. Balsara- This is the first important
judgment of the Supreme Court that took recourse to the Doctrine of Pith and
Substance. The court upheld the Doctrine of Pith and Substance and said that it is
important to ascertain the true nature and character of a legislation for the purpose of
determining the List under which it falls.
 2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.– The court held that in
order to decide whether the impugned Act falls under which entry, one has to
ascertain the true nature and character of the enactment i.e. its ‘pith and substance’.
The court further said that “it is the result of this investigation, not the form alone
which the statute may have assumed under the hand of the draughtsman, that will
determine within which of the Legislative Lists the legislation falls and for this
purpose the legislation must be scrutinized in its entirety”.
 Important Supreme Court Judgments on the Doctrine of Pith and Substance
 3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.– Pith and
Substance has been beautifully explained in this case:
 “This doctrine is applied when the legislative competence of the legislature with
regard to a particular enactment is challenged with reference to the entries in various
lists. If there is a challenge to the legislative competence, the courts will try to
ascertain the pith and substance of such enactment on a scrutiny of the Act in
question. In this process, it is necessary for the courts to go into and examine the true
character of the enactment, its object, its scope and effect to find out whether the
enactment in question is genuinely referable to a field of the legislation allotted to the
respective legislature under the constitutional scheme.
 This doctrine is an established principle of law in India recognized not only by this
Court, but also by various High Courts.

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  Where a challenge is made to the constitutional validity of a particular State Act with
reference to a subject mentioned in any entry in List I, the Court has to look to the
substance of the State Act and on such analysis and examination, if it is found that in
the pith and substance, it falls under an entry in the State List but there is only an
incidental encroachment on any of the matters enumerated in the Union List, the State
Act would not become invalid merely because there is incidental encroachment on
any of the matters in the Union List.”

Principle of Incidental or Ancillary Powers:

 This principle is an addition to the doctrine of Pith and Substance. What it means is
that the power to legislate on a subject also includes power to legislate on ancillary
matters that are reasonably connected to that subject. It is not always sufficient to
determine the constitutionality of an act by just looking at the pith and substance of
the act. In such cases, it has to be seen whether the matter referred in the act is
essential to give effect to the main subject of the act. For example, power to impose
tax would include the power to search and seizure to prevent the evasion of that tax.
Similarly, the power to legislate on Land reforms includes the power to legislate on
mortgage of the land. However, power relating to banking cannot be extended to
include power relating to non-banking entities.
 However, if a subject is explicitly mentioned in a State or Union list, it cannot be said
to be an ancillary matter. For example, power to tax is mentioned in specific entries in
the lists and so the power to tax cannot be claimed as ancillary to the power relating to
any other entry of the lists. As held in the case of State of Rajasthan v. G Chawla, the
power to legislate on a topic includes the power to legislate on an ancillary matter
which can be said to be reasonably included in the topic.
 The underlying idea behind this principle is that the grant of power includes
everything necessary to exercise that power. However, this does not mean that the
scope of the power can be extended to any unreasonable extent. Supreme Court has
consistently cautioned against such extended construction. For example, in R M D
Charbaugwala v. State of Mysore, SC held that betting and gambling is a state subject
as mentioned in Entry 34 of State list but it does not include power to impose taxes on
betting and gambling because it exists as a separate item as Entry 62 in the same list.

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Doctrine of Colourable Legislation:
 This doctrine is based on the principle that what cannot be done directly cannot be
done indirectly. In other words, if the constitution does not permit certain provision of
legislation, any provision that has the same effect indirect manner is also
unconstitutional. This doctrine is found on the wider doctrine of "fraud on the
constitution". A thing is Colourable when it seems to be one thing in the appearance
but another thing underneath. K C Gajapati Narayan Deo v. State of Orissa,is a
famous case that illustrates the applicability of this doctrine. In this case, SC observed
that the constitution has clearly distributed the legislative powers to various bodies,
which have to act within their respective spheres. These limitations are marked by
specific legislatives entries or in some cases these limitations are imposed in the form
of fundamental rights of the constitution.
 Question may arise whether while enacting any provision such limits have been
transgressed or not. Such transgression may be patent, manifest or direct. But it may
also be covert, disguised, or indirect. It is to this later class of transgression that the
doctrine of colourable legislation applies. In such case, although the legislation
purports to act within the limits of its powers, yet in substance and in reality, it
transgresses those powers. The transgression is veiled by mere pretense or disguise.
 But the legislature cannot be allowed to violate the constitutional prohibition by an
indirect method. In this case, the validity of Orissa Agricultural Income Tax
(Amendment) Act 1950 was in question. The argument was that it was not a bona fide
taxation law but a colourable legislation whose main motive was to artificially lower
the income of the intermediaries so that the state has to pay less compensation to them
under Orissa Estates Abolition Act, 1952. SC held that it was not colourable
legislation because the state was well within its power to set the taxes, no matter how
unjust it was. The state is also empowered to adopt any method of compensation. The
motive of the legislature in enacting a law is totally irrelevant.
 A contrasting case is of K T Moopil Nair v. State of Kerala, the state imposed a tax
under Travancore Cochin Land Tax Act, 1955, which was so high that it was many
times the annual income that the person was earning from the land. The SC held the
act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of
tax a person's property was being confiscated.

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  Similarly, in Balaji v. State of Mysore, SC held that the order reserving 68% of the
seats for students belonging to backward classes was violative of Article 14 in
disguise of making a provision under Article 15(4).

Governor-General in Council v. Province of Madras, AIR 1945 PC 98

 The appellant's fundamental contention is that the power to impose a duty of excise,
which is given to the Federal Legislature alone by Entry No. 45 of the Federal List,
entitles that Legislature and no other to impose a tax on first sales of goods
manufactured or produced in India. No other meaning, it is contended, can fairly be
given to the words "duty of excise" than one which includes a tax on the first sales of
such goods. If such a construction involves that violence must be done to the plain
meaning of Entry No. 48 of the Provincial List, that, it is said, is contemplated and
safeguarded by the opening words of Section 100 (1).
 To their Lordships this contention does not appear well-founded. The term "duty of
excise" is a somewhat flexible one : it may, no doubt, cover a tax on first and perhaps
on other sales : it may in a proper context have an even wider meaning. An exhaustive
discussion of this subject, from which their Lordships have obtained valuable
assistance, is to be found in the judgment of the Federal Court in In re The Central
Provinces and Berar Act No. XIV of 1938.1 Consistently with this decision, their
Lordships are of opinion that 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. Here again their
Lordships find themselves in complete accord with the reasoning and conclusions of
the Federal Court in the Boddu Paidanna case. 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, as is there pointed out, in one sense overlap.
 But in law there is no overlapping. The taxes are separate and distinct imposts. 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 exciseable
article leaves the factory or workshop for the first time upon the occasion of its sale.
But that method of collecting the tax is an accident of administration it is not of the
essence of the duty of excise which is attracted by the manufacture itself. That this
is so is clearly exemplified in those excepted cases in which the Provincial, not the
Federal, Legislature has power to impose a duty of excise. In such cases there

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 appears to be no reason why the Provincial Legislature should not impose a duty of
excise in respect of the commodity manufactured and then a tax on first or other
sales of the same commodity. Whether or not such a course is followed appears to
be merely a matter of administrative convenience. So by parity of reasoning may the
Federal Legislature impose a duty of excise upon the manufacture of exciseable
goods and the Provincial Legislature impose a tax upon the sale of the same goods
when manufactured.
 It appears then to their Lordships that the 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.
 Their Lordships would again emphasise that in coming to this conclusion they have
regarded substance not form.
 The tax imposed by the Madras Act is not a duty of excise in the cloak of a tax on
sales. Lacking the characteristic features of a duty of excise such as uniformity of
incidence and discrimination in subject-matter, it is in its general scope and in its
detailed provisions a "tax on sales,"
 Their Lordships must not be taken as expressing any view upon the validity of any
measure upon the substance of (which a different opinion might be formed.

Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, AIR 1947 PC 60

Was the case in which Bengal Money Lenders Act, was challenged on the grounds that it
limited the rate of interest and the amount recoverable by a money lender on any loan. It
was argued that promissory notes were a central matter and not a state matter. It was held
by the Privy Council that the act was in piths and substance and law with respect to
'money lending and money lenders' was a state matter and was valid even if incidental
encroachment upon 'Promissory notes' which is Central matter was taking place.
Concerned the constitutionality of the Bengal Moneylenders Act, 1940, which was
adopted by state legislatures. It was contested on the grounds that the Act only applied to
promissory notes. As the subject matter of promissory note comes under the Union List, it
was argued that the state had no power to create laws concerning a union matter.

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Privy Council’s observations
1. The Privy Council correctly determined that the genuine object, scope, and effect of
the Act is money lending and interest on the same, that the primary issue is not
promissory notes, and that the state legislature can pass legislation to safeguard the
true object, extent, and effect.
2. In this case, the doctrine of pith and substance is critical in interpreting the case’s
main subject matter. The doctrine is used to safeguard the rigorous pattern of power-
sharing between the state and the Union since the major subject matter is money
lending.
3. Whatever is supplementary or indirectly influences legislation established by a state
legislature must be credited to the proper list according to its genuine nature and
character to serve the wider public interest.
 Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019
 The petitioner was a business that produced and distributed a range of
pharmaceuticals and life-saving medications throughout India, including the state of
Bihar. In order to sell their manufactured goods to wholesale distributors/stockists in
the districts of Bihar, who in turn sold them to retailers through whom the medications
and drugs reached consumers, the petitioner established a branch or sales outlet there
that was registered as a dealer.
 The Drugs (Price Control) Order, 1979, issued by the Central Government under
subsection (1) of section 3 of the Essential Commodities Act, nearly 94% of the
medicines and drugs sold by company/distributors were at the controlled price
absolute of local levy, and they were conspicuously forbidden from selling these
medicines and drugs for more than the controlled price so fixed by the Central
Government from occasionally allowing the manufacturer or producer to pass along a
portion of the profit.
 In addition to the tax that was due, Section 5(1) of the Bihar Finance Act of 1981
mandated the imposition of a surcharge on dealers whose gross annual sales exceeded
Rs. 5 lakhs. Under Section 5(3) of the Act, it was also forbidden for these dealers to
collect the remaining balance of the payable surcharge.

Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019

 Whether the subject-matter of the impugned legislation was competently enacted
under Art. 246?

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  It is equally well settled that the varied entries within the three Lists aren’t ‘powers’ of
legislation, but ‘fields’ of legislation. Article 246 and other articles of the Constitution
grant the power to legislate.
 Taxation is taken into account to be a definite matter for purposes of legislative
competence.
 This incompatibility is further highlighted by the absence of any tax-related entries in
List III, the Concurrent Legislative List, despite the State having the sole authority to
create laws relating to the levy and imposition of taxes on the sale or purchase of
goods related to Entry 54 of List II of the Seventh Schedule. In light of this, it can be
concluded that the two laws, Section 5(3) of the Act and Paragraph 21 of the Control
Order issued by the Central Government under Section 3(1) of the Essential
Commodities Act, each have a separate and distinct purpose and are both enforceable.
There is no question that the two laws conflict, hence repugnancy is not a factor in
this situation.
 The judgment in the Hoechst Pharmaceuticals case upheld the legislative competence
of the impugned laws and clarified the non-conflicting nature of Section 5(3) of
Essential Commodities Act and Paragraph 21 of Drugs (Price Control) Order, 1979.
 The case highlighted the importance of understanding legislative fields and tax
implications to resolve legal complexities effectively.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569

 One fine morning Darshan Singh and Nand Lal were sitting on a well when they saw
Kartar Singh, Hamela , Dayaram and a few more people coming towards them. It is
said that Kartar Singh and others were going to plough a plot of land in dispute. They
were stopped by Nand Lal and Darshan Singh sitting on the nearby well. As
mentioned by Dayaram, Nand Lal challenged them and remarked that he wouldn’t let
him (Dayaram) escape. This provoked the members of both parties and initiated a free
fight. Both the parties caused several physical injuries to each other. The injuries were
so intense that they resulted in the death of Darshan Singh.
 Kartar Singh, Hamela and Dayaram were booked for committing murder, attempt to
murder and unlawful assembly. The Sessions court gave the verdict for their
conviction under Sections 302, 307, and 149 of IPC,1860. The appellant (Kartar
Singh) then moved to the High Court of Punjab and then to the Supreme court of
India, appealing against the judgement of the sessions court. However, both of them

81
 dismissed the appeal one after the other. But, the Supreme Court held that the
conviction under Sections 302, 307 read with Section 149 of IPC, 1860 can be
converted into one under Section 302, 307 read with Section 34 of IPC,1860.
 Hon’ble Sessions Court
 In this case, the learned judges had enough evidence to conclude that Darshan Singh
was murdered in the free fight between both parties. The only substantive question
before the court was to determine the actual participants of the event. The court was
not sure about whether only some of the accused were involved in the fight or all
twelve of the accused participated in it. After recording the statements of Kartar
Singh, Hamela and Dayaram, it was proven that they actively participated in the fight.
 However, it could not be established that the other nine accused were also the
participants of the fight. One of the eye-witnesses told the court about the
involvement of nine to ten people in the fight, but he was unable to name them.
Hence, the remaining accused were given the benefit of the doubt. And three of them
were convicted under Sections 302, 307 read with Section 149 of IPC (1860).
 Hon’ble High Court of Punjab
 The accused (now appellant) appealed to the High Court against the sessions court’s
decision. Two major substantive questions were argued. First, if there existed no
evidence of involvement of five or more people in the act, the session court cannot
record a conviction under Sections 302 with section 149 of IPC (1860). Second, the
other party initiated the fight by making a provoking comment against one of the
members of the appellant’s side. The injuries caused to the other party was merely an
act of self-defence.
 The honourable bench of High Court replied to the first argument as – The sessions
court found enough evidence from the witnesses that nine or ten people were involved
in the fight. They were acquitted only due to a lack of evidence for their active
participation in the fight. Thereby given the benefit of doubt. However, their presence
on the spot of the fight is not questionable. It is a well-established fact that around ten
people were present in or around the crime scene. Therefore, the conviction under
Sections 302 & 307 can be read with Section 149 of IPC (1860).
 In response to the second issue raised before the Hon’ble High Court, the court found
that the Right to private defence does not arise in a free fight. In such fights, it does
not matter as to who initiated the fight.

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 Right to self-defence only arises in matters of sudden attack. But in this case, Kartar
Singh went with them armed. Hence, it could be apprehended that it was not a sudden
attack on an individual(s). Therefore, the Right to private defence cannot be exercised.
 Thus, the appeal against the judgement of Sessions court was dismissed by the HC.
 Hon’ble Supreme court of India
 The appellants appealed against the High court’s judgement before the Supreme Court
of India. After careful examination of the judgements and reasonings by the Hon’ble
High Court of Punjab & the Sessions Court, the bench of three judges rejected the
appeal saying that they find no force in the appeal.
 However, the bench argued over the definition and meaning of ‘common-objective’
and ‘common-intention’ in reference to Sections 149 and 34 of IPC (1860). Thus, a
change in charges was made as follows – the conviction under Sections 302 & 307,
which was read along with Section 149 of IPC (1860) was now converted to be read
with Section 34 of the Indian Penal code, 1860. Following this, Kartar Singh, Hamela
and Dayaram were convicted and punished accordingly.
 The case of Kartar Singh vs State of Punjab highlighted the primary difference
between ‘common-objective’ and ‘common-intention’ of an act. The court also
clarified the usage of the right to self-defence and its scope.
 The court made a bold statement that a lack of evidence for your active participation
in an act might give you the ‘benefit of the doubt’, but your presence cannot be
unseen by the court if sufficient witnesses point towards it. The judgment was backed
up with various references of case laws and statutes. It seems that none of the
questions from the appellant was left unanswered. In fact, a very firm counter-
argument has been made in this case for all the arguments.
 Hence, clarifying various legal aspects for the coming cases in future. All three of
the accused were very rightly convicted with the punishments. Thus the
judgement of Kartar Singh vs State of Punjab case prevented people from
misusing the right to private defence to cover up their wrongful acts.
 446. What is a crime in a given society at a particular time has a wide connotation as
the concept of crime keeps on changing with change in political, economic and social
set-up of the country. Various legislations dealing with economic offenses or offenses
dealing with violation of industrial activity or breach of taxing provision are ample
proof of it. The Constitution-makers foresaw the eventuality, therefore they conferred
such powers both on Central and State Legislatures to make laws in this regard. Such

83
 right includes power to define a crime and provide for its punishment. Use of the
expression, "including all matters included in the Indian Penal Code at the
commencement of the Constitution" is unequivocal indication of comprehensive
nature of this entry. It further empowers the legislature to make laws not only in
respect of matters covered by the Indian Penal Code but any other matter which could
reasonably and justifiably be considered to be criminal in nature. Terrorist or
disruptive activity is criminal in content, reach and effect. The Central and State
Legislature both, therefore, are empowered to legislate in respect of such an activity
in exercise of the power conferred under Entry I of the Concurrent List. But this wide
power is otherwise controlled and restricted by the latter part of the entry. It carves
out an exception by precluding either of the legislatures from exercising the power if it
is in respect of "offence against laws with respect to any of the matters specified in
List I or II". The controversy, narrows down to whether the offenses under the TADA
are such in respect of which the State Legislature could make a law. In other words if
the legislation relating to TADA can fall in Entry 1 of List II then the State Legislature
would have competence to make a law under this entry and create offenses for
violation of such law under Item 64 of List II and the Central Legislature would be
precluded from making any law. But that would happen if it is held that law relating to
TADA is either in fact or in pith and substance a law relating to, 157 (1971) 2 SCC
779: AIR 1972 SC 1061 'public order'. This expression was construed in Romesh
Thappar v. State of Madras3. It was held :
 "Now 'public order' is an expression of wide connotation and signifies that state of
tranquility prevailing among the members of a political society as a result of the
internal regulations enforced by the Government which they have instituted.
 443. Having prefaced the discussion it may now be examined if the three enactments
can be declared as invalid for being, 'legislative tyranny' or 'State violence' of the
fundamental rights guaranteed in Chapter III of the Constitution. But before entering
upon an examination of different provisions of the Act it appears appropriate to deal,
at the threshold, with the argument of legislative competence. In substance the
submissions were twofold, one, that the subject-matter of the impugned legislation in
pith and substance was public order, which fell in exclusive domain of State
Legislature under Entry 1 of List II, therefore, the power could not have been
exercised by the Parliament. And even if by straining the language of Entry 1 in List
III it could be held to be criminal law the latter part of the entry operated as a bar on

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 exercise of such power by the Parliament. Are these submissions well-founded?
Power to frame or enact law for the governance of the country by the supreme body
exercising the sovereign power is known as legislative power. In a democracy which
has opted for federal structure of governance with a written Constitution the
legislative powers either of the Central or the State Legislature are derived from the
Constitution itself. In our Constitution the Legislatures under Article 246 have
plenary powers.
 Both are supreme in their sphere. But the field of legislative activity of the two
sovereign Legislatures is regulated and is exercised in consonance with entries in List
I and List II of the Seventh Schedule. Apart from exclusive field of activity provision is
made empowering both the Legislatures to exercise legislative power in respect of any
of the matters enumerated in List III in the Seventh Schedule known as Concurrent
List. How these entries should be construed, what is the effect of their overlapping
marginally have been discussed and explained by this Court time and again.
Therefore, it is not necessary to recount all that. Although the learned Additional
Solicitor General attempted to urge that the exercise of power could be traced to
Entries 1, 2 and 2-A of List I and it has been accepted by Brother Pandian, J., but I
would confine it to the alternative submission made by the learned counsel that the
legislation could be upheld under Entry 1 of List III which is extracted below :
 "Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offenses against law 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."
 TADA having been enacted under Entry 1 of List III of the Seventh Schedule, it did
not suffer from lack of legislative competence, yet the question is if any of the
provisions impinges upon the fundamental right guaranteed under the Constitution
and is, therefore, ultra vires. Before embarking upon this exercise it may be
worthwhile examining the depth of Article 21 of the Constitution as any law of
punitive or preventive detention has to be tested on the touchstone of the
constitutional assurance to every person that he shall not be deprived of his liberty
except in accordance with procedure established by law. It is declaration of deep faith
and belief in 3 1950 SCR 594: AIR 1950 SC 124: 51 Cri LJ 1514 19 (1966) 1 SCR
709: AIR 1966 SC 740: 1966 Cri LJ 608 human rights. In the "pattern of guarantee

85
 woven in Chapter III of the Constitution, personal liberty of a man is at the root
of Article 21".
 Modem history of human rights is struggle for freedom and independence of the man.
One may call the right guaranteed under Article 21 as, 'natural right' or 'basic human
right' but a society, committed to secure to its citizens "justice social, economic and
political; liberty of thought, equality of status and liberty to promote amongst
themselves fraternity" the foundation on which edifice of the Constitution has been
structured could not have done otherwise than to provide for the human dignity and
freedom as has been done by Article 21 of the Constitution which reads as under:
 "21. Protection of life and personal liberty. No person shall be deprived of his life or
personal liberty except according to procedure established by law."

Repugnancy Clause [Art. 254]

 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
 In case of over-lapping of a matter between the three Lists, predominance has been
given to the Union Legislature. Thus, the power of the State Legislature to legislate
with respect to matters enumerated in the State List has been made subject to the
power of the Union Parliament to legislate in respect of matters enumerated in the

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 Union and Concurrent Lists, and the entries in the State List have to be interpreted
accordingly.
 In the Concurrent sphere, in case of repugnancy between a Union and a State law
relating to the same subject, the former prevails. If however, the State law was
reserved for the assent of the President and has received such assent, the State law
may prevail notwithstanding such repugnance. But it would still be competent for
Parliament to override such State law by subsequent legislation.
 Residuary Powers: The Constitution vests the residuary power, i.e., the power to
legislate with respect to any matter not enumerated in any one of the three Lists in the
Union Legislature (Art. 248). It has been left to the courts to determine finally as to
whether a particular matter falls under the residuary power or not. It may be noted,
however, that since the three lists attempt an exhaustive enumeration of all possible
subjects of legislation, and courts generally have interpreted the sphere of the powers
to be enumerated in a liberal way, the scope for the application of the residuary
powers has remained considerably restricted.

Expansion of the Legislative Powers of the Union under Different

Circumstances:
 (a) In the National Interest: Parliament shall have the power to make laws with respect
to any matter included in the State List for a temporary period, if the Council of States
declares by a resolution of 2/ 3 of its members present and voting, that it is necessary
in the national interest.
 (b) Under the Proclamation of National or Financial Emergency: In this circumstance,
Parliament shall have similar power to legislate with respect to State Subjects.
 (c) By Agreement between States: If the Legislatures of two or more States resolve
that it shall be lawful for Parliament to make laws with respect to any matters
included in the State List relating to those States, Parliament shall have such power.
 It shall also be open to any other State to adopt such Union legislation in relation to
itself by a resolution passed on behalf of the State legislature. In short, this is an
extension of the jurisdiction of the Union Parliament by consent of the Legislatures.
 (d) To implement treaties: Parliament shall have the power to legislate with respect to
any subject for the purpose of implementing treaties or international agreements and
conventions.

87
  (e) Under a Proclamation of Failure of Constitutional Machinery in the States: When
such a Proclamation is made by the President, the President may declare that the
powers of the Legislature of the State shall be exercisable by or under the authority of
Parliament.
 In M. Karunanidhi v. Union of India, Justice Fazal Ali reviewed all its prior decisions
and summarized the test of repugnancy. According to him following are the
circumstances when repugnancy would occur between the two statutes:
 1. It must be indicated that there is a clear and direct inconsistency between the
central and state laws which is irreconcilable so that they cannot persist jointly or
operate in the uniform field.
 2. There can be no repeal by implication unless the inconsistency arises on the face of
the two statutes.
 3. Where the two statutes acquire a particular field, but there is a probability of both
the statutes operating in the uniform field without landing into complicity with each
other, no repugnancy results.
 4. Where there is no inconsistency but a statute acquires the similar field seeks to
establish distinct and separate offences, no question of repugnancy arises and both the
statutes proceed to operate in the similar field.

State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375

 The question of repugnancy between the parliamentary legislation and state
legislation occurs in two ways:
 Firstly, where the legislations are enacted with respect to matters allotted in
their fields but they overlap and conflict.
 Secondly, where the two legislations are with respect to the matters in the
concurrent list and there is conflict. In both the circumstances, the
parliamentary legislation will be predominant, in first by virtue of the non-
obstante clause in Article 246 (1) and in the second by a justification of Article
254 (1).
 This case pertains to the question that whether the Kerala Chitties Act, 1975 became
repugnant to the Central Chit Fund Act, 1984 upon the enactment of the Central Act
that is when the president assented to the bill or when a notification was issued under
the Act bringing the Act in force in the state of Orissa. The Supreme Court held that
the repugnancy occurs on the making of the legislation and not on its enforcement.

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Facts in the present case
 The lis in the present case arose under the following circumstances. Many of the
private chitty firms remained out of the regulatory mechanism prescribed in the
Kerala Chitties Act, 1975 by registering themselves outside the State but continued to
operate in Kerala. Because of this, investor protection became difficult.
Consequently, Section 4 of the said 1975 Act was amended vide Finance Act 7 of
2002.
 By the said amendment, sub-section (1a) was inserted in Section 4. This amendment
intended to bring in chitties registered outside the State having 20% or more of its
subscribers normally residing in the State within the ambit of the said 1975 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 Article 254(1) to the Central Chit
Funds Act, 1982.
Questions to be answered
 Whether making of the law or its commencement brings about repugnancy or
inconsistency as envisaged in Article 254(1) of the Constitution?
 The key question that arises for determination is as to from when the
repugnancy of the State Actwill come into effect? Did repugnancy arise on the
making of the Central 1982 Act or will it arise as and when the Central Act is
brought into force in the State of Kerala?
 Under clause (1) of Article 254, a general rule is laid down to say that the Union law
shall prevail where the State law is repugnant to it. The question of repugnancy arises
only with respect to the subjects enumerated in the Concurrent List as both the
Parliament and the State Legislatures have concurrent powers to legislate over the
subject-matter in that List. In such cases, at times, conflict arises. Clause (1)
of Article 254 states that if a State law, relating to a concurrent subject, is
“repugnant” to a Union law, relating to that subject, then, whether the Union law is
prior or later in time, the Union law will prevail and the State law shall, to the extent
of such repugnancy, be void. Thus, Article 254(1) also gives supremacy to the law
made by Parliament, which Parliament is competent to enact. In case of repugnancy,
the State Legislation would be void only to the extent of repugnancy. If there is no
repugnancy between the two laws, there is no question of application of Article
254(1) and both the Acts would prevail. Thus, Article 254 is attracted only when
Legislations covering the same matter in List III made by the Centre and by the State

89
 operate on that subject; both of them (Parliament and the State Legislatures) being
competent to enact laws with respect to the subject in List III. In the present case,
Entry 7 of List III in the Seventh Schedule deals with the subject of “Contracts”.
 It also covers special contracts. Chitties are special contracts. Thus, the Parliament
and the State Legislatures are competent to enact a law with respect to such contracts.
The question of repugnancy between the Parliamentary Legislation and State
Legislation arises in two ways. First, where the Legislations, though enacted with
respect to matters in their allotted spheres, overlap and conflict. Second, where the
two Legislations are with respect to matters in the Concurrent List and there is a
conflict. In both the situations, the Parliamentary Legislation will predominate, in the
first, by virtue of non-obstante clause in Article 246(1); in the second, by reason
of Article 254(1).Article 254(2) deals with a situation where the State Legislation
having been reserved and having obtained President’s assent, prevails in that State;
this again is subject to the proviso that Parliament can again bring a legislation to
override even such State Legislation.
 In clause (1) of Article 254 the significant words used are “provision of a law made
by the Legislature of a State”, “any provision of a law made by Parliament which
Parliament is competent to enact”, “the law made by Parliament, whether passed
before or after the law made by the Legislature of such State”, and “the law made by
the Legislature of the State shall, to the extent of repugnancy, be void”. Again, clause
(2) of Article 254 speaks of “a law made by the Legislature of a State”, “an earlier law
made by Parliament”, and “the law so made by the Legislature of such State”.
 Thus, it is noticeable that throughout Article 254 the emphasis is on law-making by
the respective Legislatures. Broadly speaking, law-making is exclusively the function
of the Legislatures (see Articles 79 and 168). The President and the Governor are a
part of the Union or the Legislatures of the States. As far as the Parliament is
concerned, the legislative process is complete as soon as the procedure prescribed
by Article 107 of the Constitution and connected provisions are followed and the Bill
passed by both the Houses of Parliament has received the assent of the President
under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has
been passed by the State Legislature and it has received the assent of the Governor in
accordance with Article
 To sum up, our conclusions are as follows :-

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  i) On timing, we hold that, repugnancy arises on the making and not commencement
of the law, as correctly held in the judgment of this Court in Pt. Rishikesh and Another
v. Salma Begum (Smt) [(1995) 4 SCC 718].
 ii) Applying the above test, we hold that, on the enactment of the Central Chit Funds
Act, 1982, on 19.08.1982, which covered the entire field of “chits” under entry 7 of
List III of the Constitution, the Kerala Chitties Act, 1975, on account of repugnancy
as enshrined in Article 254(1), became void and stood impliedly repealed. That, on
the occupation of the entire field of “chits”, the Kerala Legislature could not have
enacted the State Finance Act No. 7 of 2002, inserting Section 4(1a) into the Kerala
Chitties Act, 1975, particularly on the failure of the State in obtaining Presidential
assent under Article 254(2).
 iii) That, the Central Chit Funds Act, 1982 though not brought in force in the State of
Kerala is still a law made, which is alive as an existing law. By reason of Article
367 of the Constitution, the General Clauses Act, 1897 applies to the repeal. Section
6 of the General Clauses Act, 1897 is, therefore, relevant, particularly Sections
6(b) and 6(c) and consequently, the previous operation of the Kerala Chitties Act,
1975 is not affected nor any right, privilege, obligation or liability acquired or
incurred under that repealed State Act of 1975. Thus, after 19.08.1982, the Kerala
Chitties Act, 1975 stands repealed except for the limited purposes of Section 6 of
General Clauses Act, 1897. If and when the Central Government brings into force
the Chit Funds Act, 1982 by a notification in State of Kerala, under Section
1(3), Section 90(2) will come into play and thereby the Kerala Chitties Act, 1975 shall
continue to apply only to chits in operation on the date of commencement of
the Central Chit Funds Act, 1982 in the same manner as the Kerala Chitties Act,
1975 applied to chits before such commencement.

Doctrine of Harmonious Construction

• The aim of the judiciary and the courts should be to view the law as a whole. The
interpretation of the law should be such that it prevents confusion or incompatibility
between the different sections or parts of the statute being used. Whenever a
discrepancy arises between two or more statutes or different clauses or sections of a
statute, the doctrine of harmonious construction must be followed.
• The doctrine is based on the straightforward principle that every statute has a legal
purpose and should be read in totality. The interpretation should be such that it is

91
 unswerving and all of the statute’s provisions should be used. In the event that
harmonizing two or more statutes or different clauses or sections of a statute is
unlikely, the court’s decision on the provision would take precedence.
• Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000) is a landmark
case where the Supreme Court laid down five main principles that govern the rule of
harmonious construction that are as follows:
• The courts should try and avoid a conflict of seemingly disputing provisions and
effort must be made to construe the disputing provisions so as to harmonize them.
• The provision of one section cannot be used to overthrow the provision covered in
another section unless the court is unable to find a way to settle their differences
despite all its effort.
• In the situation when the court finds it impossible to entirely reconcile the differences
in inconsistent provisions, the courts must interpret them such that effect is given to
both the provisions as far as possible.
• Courts must also take into account that the interpretation that makes one provision
redundant and useless is against the essence of harmonious construction.
• Harmonizing two contradicting provisions means not to destroy any statutory
provision or to render it ineffective.
• The Courts have articulated some procedures for the proper applicability of the
aforesaid doctrine after reviewing numerous case laws. They are as follows:
• Giving equal importance to both the conflicting provisions, thus reducing their
inconsistency.
• The provisions that are fundamentally inconsistent or repugnant to each other must be
read in their entirety, and the complete enactment must be taken into account.
• The provision with a broader reach of the two contradicting provisions should be
considered.
• Comparing the broad and narrow provisions, the courts should analyse the broad law
to see if there are any other concerns. No further thought needs to be given if the
result is fair and harmonizing both clauses can be done by giving them full weight
separately. This is because the legislature was well aware of the situation they were
attempting to address when enacting the provisions, and hence all provisions adopted
must be given full effect.
• When one provision of the Act slivers, the powers conferred by another Act then a
non-obstante clause must be used.

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 • It is significant that the court establishes the degree that the legislature wanted to grant
one provision overriding authority over another.

Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044

• The Oriental Gas Company Act was passed by the West Bengal Legislative Assembly
in 1960. Under this Act, the Respondent attempted to take over the control of the Gas
Company. The Appellant argued that the State Legislative Assembly lacked the
authority to pass such legislation under Entries 24 & 25 of the State List since the
Parliament had already passed the Industries (Development and Regulation) Act,
1951, which dealt with industries under Entry 52 of the Central List.

The Supreme Court noted that with so many subjects in three lists in the Constitution
of India, there is bound to be some overlap, and it is the responsibility of the Courts in
such situations to harmonise them, if possible, so that each of them can have effect.
The State List's Entry 24 includes all of the State's Industries.

Only the Gas Industry is qualified for Entry 25. As a result, Entry 24 encompasses all
industries except the gas industry, which is explicitly protected under Entry 25. Entry
52 in the Union List corresponds to Entry 24 in the State List. As a result, it became
apparent that the Gas Industry was solely protected by Entry 25 of the State List, over
which the State has complete influence. As a result, the State had complete authority
to enact legislation in this region.
• Facts of the Case:
The Oriental Gas Company was originally constituted by a deed of settlement dated
April 25, 1853, by the name of the Oriental Gas Company, and it was subsequently
registered in England under the provisions of the English Joint Stock Companies Act,
1862. By Act V of 1857 passed by the Legislative Council of India, it was empowered
to lay pipes in Calcutta and its suburbs and to excavate the streets for the said
purpose. By Acts of the Legislative Council of India passed from time to time special
powers were conferred on the said Company.

In 1946 Messrs. Soorajmull Nagarmull, a firm carrying on business in India,

purchased 98 per cent of the shares of the said Oriental Gas Company Limited. The
said firm floated a limited liability Company named the Calcutta Gas Co.

93
 (Proprietary) Limited and it was registered in India with the registered office at
Calcutta. 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 in India for a period of 20 years from July 5, 1948.
• The Oriental Gas Company is the owner of the industrial undertaking, inter alia, for
the production, manufacture, supply, distribution and sale of fuel gas Calcutta. The
Calcutta Gas Company, by virtue of the aforesaid arrangement, was in charge of its
general management for a period of 20 years for remuneration.

The West Bengal Legislature passed the impugned Act and it received the assent of
the President on October 1, 1960. On October 3, 1960, the West Bengal Government
issued three notifications - the first declaring that the said Act would come into force
on October 3, 1960, the second containing the rules framed under the Act. And the
third specifying October 7, 1960, as the date with effect from which the State
Government would take over for a period of five years the management and control of
the undertaking of the Oriental Gas Company for the purposes of, and in accordance
with, the provisions of the said Act.

The appellant, i.e., the Calcutta Gas Company, filed a petition under Art. 226 of the
Constitution in the High Court for West Bengal at Calcutta for appropriate writs for
restraining the State Government from giving effect to the said Act and for quashing
the said notifications.
o The learned Judge rejected all the contentions of the appellant and dismissed
the petition by his order dated November 15, 1960. Hence the appeal.
Issues before the Court:
The main issues presented before the Apex Court in this case were with regard to the
legislative powers of the Union and the State, which can be summed up as
follows:Whether the appellant has locus standi to file the petition under Art. 226 of
the Constitution?
1. Whether the Oriental Gas Company Act, 1960, (referred to as the impugned act) is
constitutionally valid?
• The conflict between the Industries (Development and Regulations) Act, 1951 i.e. the
Central Act and the impugned Act was then examined. It would be seen that the
impugned Act intends to serve the same purpose as the Central Act, though its

94
 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 impugned Act occupies a part of the field already covered by the Central
Act. The question is whether the State Legislature has constitutional competency
to encroach upon the said field. It may, therefore, be taken as a well settled rule
of construction that every attempt should be made to harmonize the apparently
conflicting entries not only of different Lists but also of the same List and to
reject that construction which will rob one of the entries of its entire content and
make it nugatory.
• It was held that the impugned Act was within the legislative competence of the West
Bengal Legislature and was, therefore, validly made. It follows that the Central Act, in
so far as it purported to deal with the gas industry, is beyond the legislative
competence of Parliament. Upholding the validity of the West Bengal Act, the appeal
was dismissed.
• Entry 24 in List II in its widest amplitude takes in all industries, including that of gas
and gas-works. So too, entry 25 of the said List comprehends gas industry. 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. Gas and
gas works fall under entry 25 exclusively. If industrial, trade, production and supply
aspects are taken out of entry 25; the substratum of the said entry would disappear.
Subject to such emergency or extra-ordinary powers, the entire industry of gas and
gas-works is within exclusive legislative competence of a State.
• In this view, gas and gas works are within the exclusive field allotted to the
States. The Legislature of a State has the exclusive power to make law in respect
of gas industry by virtue of entry 25 of List II, and that entry 24 does not
comprehend gas industry.

ITC Ltd. V. Agricultural Produce Market Committee, AIR 2002 SC 852

• Facts of the case:
This case presented a conflict between the operation of two Acts, namely, Tobacco
Board Act, 1975 enacted by the Parliament, and the Bihar Agricultural Produce

95
 Markets Act, 1960, enacted by the State Legislature. Parliament took the tobacco
industry under its control under Entry 52, List I and has enacted the Tobacco Board
Act, 1975. The Bihar Agricultural Produce Markets Act, 1960 (referred to hereafter as
the Markets Act) was enacted by the State of Bihar and is ostensibly referable to Entry
28 of List II which gives the State legislature the exclusive power to legislate on
Markets and Fairs read with Entry 66 of List II according to which the State
Legislature may also levy fees in respect of any matter in List II except Court fees.
Both these Acts sought to levy fee on the sale and purchase of tobacco and were in
conflict with respect to the same.

Issues before the Court:

The main issues presented before the Apex Court in this case were with regard to the
legislative powers of the Union and the State, which can be summed up as
follows:Whether the Market Committees have the authority to levy market fee under
the Markets Act on the sale of tobacco?
• Whether the provisions in the Markets Act granting Market Committees such right are
repugnant to the provisions of the Tobacco Act and are therefore, unconstitutional?
• ITC Ltd. V. Agricultural Produce Market Committee, AIR 2002 SC 852
• The first question that the Court examined in the instant case was with regard to the
interpretation of the meaning of the word, industry. The Court relied on the verdict
given in Tika Ramji’s case[3]to interpret the meaning of the word industry.

Industry in the wide sense of the term would be capable of comprising three different
aspects: (1) raw materials which are an integral part of the industrial process, (2) the
process of manufacture or production, and (3) and distribution of the products of the
industry. The raw materials would be goods which would be comprised in Entry 26 of
List II. The process of manufacture or production would be comprised in Entry 24 of
List II except where the industry was a controlled industry when it would fall within
Entry 52 of List I and the products of the industry would also be comprised in Entry
27 of List II except where they were the products of the controlled industries when
they would fall within Entry 33 of List III.

This verdict had been recently reaffirmed and applied in Belsund Sugar

96
 Company v. State of Biharand it was further not in contradiction with the case
cited by the appellants.

• The objective of the Bihar Markets Act was then examined and the legislative
competence of the State Legislature was looked into. The Court observed that the
setting up of markets areas, markets yards and regulating use of the facilities within
such area or yards by levy of market fee is a matter of local interest and would be
covered by Entry 28 of List II and thus within the legislative competence of the State.
The Markets Act does not seek to regulate either the manufacture or production of
tobacco, and thus it does not impinge upon the Tobacco Act. It follows that Parliament
is incompetent to legislate for the setting up or regulation of markets and fairs within
the meaning of the phrase in entry 28 of List II, even in respect of tobacco.

• The scope and objective of the Tobacco Act was examined and an effort was made by
the Court to reconcile the two conflicting laws, by interpreting them by the rule of
harmonious construction. The use of the word markets and marketing in the tobacco
Act, including Section 8 does not mean a market in the sense the word has been used
in the Markets Act. It is obvious from phrases such as the Virginia tobacco
market,development of new markets outside India etc. that the word has been used in
the sense of sale as controlled by supply and demand; especially a demand for a
commodity or service - in this case tobacco. The Tobacco Act is not concerned so
much with the where but with the how, the tobacco is disposed of. Even when the
Tobacco Act speaks of setting up of auction platforms it does not indeed. Since State
are exclusively competent to decide on the location of markets, the authorities under
the Tobacco Act would have to comply with the municipal laws and set up the auction
platforms only within the permissible areas. If the facilities afforded under the Market
Act are utilized, the facilities will have to be paid for and the authorities appointed to
levy and collect fees for the purpose under the Markets Act would be competent to do
so. If further facilities are offered at the Auction Platforms under the Tobacco Act,
fees may be levies under Section 14-A of that Act. The right to levy fees under the
two acts therefore may not necessarily conflict, the levy not being in the alternative
but additional. Assuming this is not possible and there is any conflict, the provisions
of the Markets Act and not the Tobacco Act would prevail.

97
 • Thus, the decision in ITC Ltd. v. State of Karnataka was overruled and the
competence of the States to levy market fee on tobacco was upheld.

Residuality Clause [Art.248]

Article 248
• 248. Residuary powers of legislation
• (1) 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

Residuality Clause
• Residuary Powers: The Constitution vests the residuary power, i.e., the power to
legislate with respect to any matter not enumerated in any one of the three Lists in the
Union Legislature (Art. 248). It has been left to the courts to determine finally as to
whether a particular matter falls under the residuary power or not. It may be noted,
however, that since the three lists attempt an exhaustive enumeration of all possible
subjects of legislation, and courts generally have interpreted the sphere of the powers
to be enumerated in a liberal way, the scope for the application of the residuary
powers has remained considerably restricted.
• Expansion of the Legislative Powers of the Union under Different
Circumstances:
• (a) In the National Interest: Parliament shall have the power to make laws with respect
to any matter included in the State List for a temporary period, if the Council of States
declares by a resolution of 2/ 3 of its members present and voting, that it is necessary
in the national interest.
• (b) Under the Proclamation of National or Financial Emergency: In this circumstance,
Parliament shall have similar power to legislate with respect to State Subjects.
• (c) By Agreement between States: If the Legislatures of two or more States resolve
that it shall be lawful for Parliament to make laws with respect to any matters
included in the State List relating to those States, Parliament shall have such power.
• It shall also be open to any other State to adopt such Union legislation in relation to
itself by a resolution passed on behalf of the State legislature. In short, this is an
extension of the jurisdiction of the Union Parliament by consent of the Legislatures.

98
 • (d) To implement treaties: Parliament shall have the power to legislate with respect to
any subject for the purpose of implementing treaties or international agreements and
conventions.
• (e) Under a Proclamation of Failure of Constitutional Machinery in the States: When
such a Proclamation is made by the President, the President may declare that the
powers of the Legislature of the State shall be exercisable by or under the authority of
Parliament.

Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 465
• In this case, a Constitution Bench of five judges considered the validity of the Armed
Forces (Special Powers) Act, 1958 (as amended) (AFSPA) enacted by Parliament and
theAssam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam.
• The Court ruled unanimously in favor of the validity of both the AFSPA and the Assa
m Act.AFSPA was enacted (and later amended) to give representatives of the armed f
orces special powers in troubled areas in some states, and it now covers the entire stat
e of Arunachal Pradesh, as well as Assam, Manipur, Meghalaya, Mizoram, Nagaland,
and Tripura. The Governor of the State or the Central Government has the authority u
nder this Act to declare the whole or any part of the State to be in such a troubled or d
angerous state that the use of armed forces in aid of the civil power is deemed appropr
iate in their view.
• Certain officers in the armed forces have been given special powers in the disturbed ar
eas inrespect of matters stated in clauses (a) to (d) of the said section in the region des
ignated as a"disturbed area." These powers include the ability to open fire and even ki
ll, as well as the ability to detain without a warrant and destroy a weapons cache, amo
ng others. Section 6 offers immunity to those acting under the Act, stating that no inve
stigation, suit, or other legal action shall be brought against any individual in respect o
f anything done or alleged tobe done in the exercise of the Act's powers without the pr
ior approval of the Central Government.
• 1. The AFSPA is legal under the law
• 2. In light of Entry 1 of the State List and Article 248 read with Entry 97 and Entries 2
and 2-
A of the Union List, Parliament has the authority to enact this Act. In 1958, Parliamen
t was competent to enact this Act in the exercise of its legislative power under Entry 2
of the Union List and Article 248 read with Entry 97 of the Union List, and, followin

99
 g the Forty-
second Amendment to the Constitution, the legislative power to enact the said legislat
ion is expressly conferred under Entry 2-
A of the Union List, and it cannot be regarded as a law falling under Entry 2 of the Un
ion List.
• 3. Since Parliament has the authority to pass AFSPA, it cannot be challenged because
it iscolorable legislation or a fraud on Parliament's legislative power.
• 4. The Union is obligated under Article 355 of the Constitution to defend each state ag
ainstexternal aggression and internal strife, as well as to ensure that each state's gover
nmentoperates in compliance with the Constitution's provisions
• 5. The provisions of the Central Act were enacted to allow the Central Government to
fulfillits obligations under Article 355 of the Constitution and to prevent situations ari
sing from internal disturbances from being so severe as to necessitate invoking the Co
nstitution's harsh provisions of Article 356.
• 6. The ‘disturbed or hazardous state' in which AFSPA deals is not comparable to ‘arm
ed insurrection within the context of Art. 352, and hence the Act's legitimacy cannot b
e questioned based on Parliament's attempt to circumvent Art. 352 or 356 which deal
with more extreme forces.

Union of India v. H.S. Dhillon, AIR 1972 SC 1061

• Facts:
• The case is an appeal from the Punjab and Haryana High Court, where the Court by
4:1 majority judgement held that the Wealth Tax Act as amended by the Finance Act,
1969 which include the capital value of the agriculture land for the purpose of
computing net wealth was ultra vires of the Constitution of India.
• Wealth Tax Act, 1957 was amended by section 24 of the finance Act, 1969 to include
the Capital value of agriculture land for the purpose of computation of net wealth. It
was held by the Punjab and Haryana High Court that the impugned Act was not law
with respect to Entry 49, List II of the 7th Schedule of the Constitution of India.
• Issue:
• Whether the Wealth Tax Act, 1957 as amended by Section 24 of the Finance Act,1969
was valid.
• Union of India v. H.S. Dhillon, AIR 1972 SC 1061

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• The Apex Court’s bench comprising of Sikri,S.M.(CJ),Shelat.J.M., Ray.A.N, Dua.I.D,
Mitter.G.K, Roy Subimal Chandra, Palekar, D.G., held the following:
• Article 246 enumerates the three list of 7th schedule whereby it is clear that the
Parliament has exclusive power to make laws with respect to all the matters as
enlisted in List I and that this notwithstanding anything contained in clause (2) and (3)
of Article 246.
• While the State Legislature can make laws with respect to matters enumerated List II
but it is subject to clause (1) and (2) of Article 246. This subjection shows that the
power of the Parliament to make laws with respect to matters enumerated in List I and
II are paramount.
• Article 248 and Entry 97 of List I makes it clear that the constitutional makers wanted
to handover the residuary powers of legislation to the Union Parliament.
• Hon’ble Court expounded that if the Central Act does not fall within the ambit of
matter enlisted in List II then it is fruitless to inquire whether it falls within the ambit
of List I or III.
• Union of India v. H.S. Dhillon, AIR 1972 SC 1061
• There is a difference between “net wealth tax” and “tax on property”, based upon
which the court held that the impugned Act was not law under Entry 49, List II.
• No part of the impugned legislation falls within Entry 86, List I and hence valid and
by majority it was held that the appeal be allowed without order to cost.
• Shelat, Ray and Dua, JJ.(dissenting), held that the residuary power conferred by
Article 248 and Entry 97 must include matter not included in any of the three lists.
The tax under Wealth Tax Act was within the arena of List I Entry 86 and not under
the residuary power of Parliament U/A 248 or Entry 97, List I and hence suffered lack
of competence.
• Conclusion:
• The Supreme Court upheld the proverb that Principle of Justice do not change with
calendar. Significance of appealing to Supreme Court becomes far-reaching when the
subordinate Court fails in its rudimentary business of delivering Justice.
• Since it is not just the system but a system of justice, the Supreme Court stands ready
with its Supreme and exclusive power to keep a check upon the arbitrary power of
any of the organs of the Government.

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SCHEDULE 7

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Module IV - Union & State Executive: Aid & Advice,
Ordinance Promulgation & Anti Defection Laws

Introduction
• The Union government is composed of three wings, the executive, the legislature and
the judiciary. The division of power into separate branches of government is central to
the republican idea of the separation of powers.
• The executive of government has the sole authority and responsibility for the daily
administration of the state bureaucracy. The executive executes and enforces law as
written by the legislature and interpreted by the judiciary. The Union executive
consists of the President, the Vice-President and the Council of Ministers with the
Prime Minister as the head to aid and advise the President.
• President – Article 52: The President of India - There shall be a President of
India.
• This Article mandates the office of a President in the constitutional scheme and
political structure of India which is a parliamentary form of Government. The
President of India is the republican and constitutional head of India. The President
represents the Union as well as the States. In case of any vacancy in the office of the
President by reason of his death, resignation, removal or otherwise, the Vice President
shall be the acting President and the vacancy shall be filled with a period of six
months.
• Article 53: Executive Power Of The Union
• (1) 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.
• (2) 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.
• (3) 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

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 • (b) prevent Parliament from conferring by law functions on authorities other than the
President.
• The executive authority of the Union is vested in the President. The President may
exercise his powers either directly or indirectly through his subordinate officers
according to the mandates of the Constitution. The executive function of the President
comprises not merely the determination of the policy but also carrying it into
execution. It has a wider connotation and includes the general administration of the
State which includes the initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of foreign policy, regulation
of social services like public health, housing, employment, welfare, education
transport, defence, finance etc.
• The executive function of President also extends to exercising the powers of
subordinate legislation and administrative justice. The executive power vested in the
President is directed to be exercised in accordance with the Constitution.
• It was observed in Jayantilal Amrutlal Shodhan v. F.N. Rama. The Constitution has
not made an absolute or rigid division of functions between the three agencies of the
State. To the executive, exercise of functions legislative or judicial are often entrusted.
• Article 53(2) vests the supreme command of the defense forces in the President. The
clause lays down certain limitations. The military power of the President is subject to
the general executive power of the President vested in him in accordance with the
Constitution. And the supreme command of the President can be exercised only under
the regulation s of laws made by Parliament.
• Article 53(3) lays down that the executive power of the Unions shall vest in the
President. However it will not prevent the Parliament from conferring functions on
authorities other than the President. But the powers which are expressly conferred on
the President by the Constitution cannot be transferred by the Parliament to any other
authority.

Article 74 in Constitution of India

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

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 reconsider such advice; either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration.
(2)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 Government: GOVERNOR

• Part VI of the Constitution deals with the structure of government in the States
specified in the First Schedule to the Constitution. The State shall be headed by a
Governor. The primary function of the governor is to preserve, protect and defend the
constitution and the law as incorporated in his oath of office under the Indian
constitution in the administration of the State affairs. All his actions,
recommendations and supervisory powers over the executive and legislative entities
of a State shall be used to implement the provisions of the Constitution.
• The Governor is vested with the executive powers related to administration,
appointments and removals; the Legislative powers related to lawmaking concerning
the state legislature i.e. State Legislative Assembly (Vidhan Sabha) or State
Legislative Council (Vidhan Parishad), and the Discretionary powers to be carried out
according to the discretion of the Governor. Article 153 to 162 lays down the
provisions relating to Governor.
Article 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.
Article 153 mandates that there shall be a Governor appointed for every State of the
Union of India. The same person can be appointed as a Governor for two or more
States. Nothing in the said Article shall prohibit the same person from being a
Governor over two or more States.

Article 154 - Executive power of State

(1) The executive power of the State shall be vested in the Governor and shall be
exercised by him either directly or through officers subordinate to him in accordance
with this Constitution
(2) Nothing in this article shall

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 (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
Clause (1) of Article 154 states that the Governor will be vested with all the executive
powers pertaining to the States over which he is appointed as the Head. The Governor
shall exercise his powers either directly or indirectly with the aid of the subordinate
officers who are subordinate to him. The powers will be exercised according to the
provisions of the Constitution.
Clause (2) of Article 154 enumerates that any functions which is conferred by any
existing law or any other authority shall be deemed to be transferred to the Governor.
Further the Parliament and the Legislature of the State are vested with the powers to
confer any of the functions on the authorities sub- ordinate to the Governor. The same
shall be according to the provisions of law.
In Ram Jawaya Kapur v. State of Punjab, the Supreme Court said, The Governor
occupies the position of the Head of the executive in the State but it is virtually the
Council of Ministers in each State that carried on the executive Government.
In Samsher Singh v. State of Punjab, the Supreme Court stated that except in spheres
where the Governor is to act in his discretion, the Governor acts on the aid and advice
of the Council of Ministers in the exercise of his powers and functions, and is not
required to act personally without the aid and advice of the Council of Ministers or
against the aid and advice of the Council of Ministers. The Governor exercises his
discretion in harmony with his Council of Ministers.
Article 155 - Appointment of Governor
The Governor of a State shall be appointed by the President by warrant under his hand
and seal. The President by warrant under his hand and seal shall appoint the Governor
of the State.

Governors of a State
Article 158 lays down conditions to hold the office of Governor. The Governor should
not be a member of either House of Parliament or of a House of the Legislature of any
State which is specified in First Schedule to the Constitution. If peradventure he is
holding membership of either House of Parliament or of a House of the Legislature of
any State, then he shall vacate from the membership and it shall be deemed that he

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 has vacated his seat in that House on the date on which he enters upon his office as a
Governor.
Further the Governor shall not hold any other office of profit. His salary shall be fixed
by the Constitution which can be varied time to time by the Union Parliament.
However the emoluments and allowances of the Governor cannot be reduced during
the term of his office. The Governor is entitled without payment of rent to the use of
his official residence and is also entitled to various other allowances and privileges.
Article 160 – In case of contingencies or emergency the President is vested with a
wide discretionary power to make any such necessary provisions which are not
provided in this chapter, to enable the Governor to discharge his functions as
situations requires of him.

Article 163 – Aid and Advice Clause

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 shall not be inquired into in any court

Discretionary Powers

• Dissolution of the Legislative Assembly

There are two provisions in the Constitution under which the State Legislative
Assembly can be dissolved.
• One is under Article 174(2)(b) which states that the Governor may dissolve the
Legislative Assembly from time to time. This was recently seen when the
Governor of Telangana dismissed the State’s Legislative Assembly after being
advised by the Chief Minister to do so.

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 • The other is under Article 365 which can be applied during a state emergency i.e.,
President’s Rule. Under Article 365, if the state government fails to comply with
the instructions of the Union Government, then it is up to the Governor to assess
the ground situation and then call for its dissolution, after approval by both houses
of the Parliament.
• But this decision comes under the judicial review of both the High Court and
Supreme Court and they can declare it invalid if it is found to be done on mala
fide grounds. Since 2000, President’s Rule has been applied 15 times in the
country.
• Advising the President for the Proclamation of an Emergency under Article 356
When the State Government is unable to function in accordance to the
constitutional machinery, then the Governor sends a report to the President
briefing him/her about the grievousness of the situation. This power has been
granted to the Governor under Article 356. This may happen when there is a vote
of no confidence in the house or a government breakdown in the state.

Protection of Governor
Article 361 lays down the provisions for the protection of the Governor. The
Governor shall not be answerable to any court for the performance and disposal of
his/her duties. There can be no criminal proceedings against him/her during the term
of his/her office. Neither can there be a process to arrest him/her during the term of
his/her office. Any civil proceedings in which relief is claimed against the Governor
of a State, shall be instituted during his/her term of office in any court in respect of
any act done or purporting to be done by him/her in his personal capacity.
The Indian Government’s structure is Quasi-Federal in nature. The President operates
at the National Level, the Governor operates at the State Level. The Governor being
the nominal head doesn’t possess any real power but does have some important
discretionary functions. This distribution of power between the Governor and the
Chief Minister helps maintain balance in a state and also to keep a check on the
functioning of the individual machineries.

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Constitutional Position of Governor
• Article 163 (1) essentially limits any discretionary power of the Governor only to
cases where the Constitution expressly specifies that the Governor must act on his
own and apply an independent mind.
• Article 163 (2) says if any question arises with respect to whether a matter falls under
Governors’ discretionary power or not, the decision of the Governor with regards to
the question shall be final and anything done by the governor in his discretion will
not be called into question.
• Article 163 (3) does not allow the courts to inquire into what advice was tendered by
the Council of Ministers to the Governor.

Constitutional Discretion
The Governor has constitutional discretion in the following cases:
• Article 167: Governor can seek any information from the chief minister with regard
to the administrative and legislative matters of the state.
• Article 200: A bill shall be presented to the Governor and the Governor shall declare
either that he assents to the Bill or that he withholds assent therefrom or that he
reserves the Bill for the consideration of the President.
• Article 356 empowers the Governor to recommend the imposition of President’s Rule
in the state in case he feels that there is a breakdown of constitutional machinery in
the state.
• Article 239 (2): While exercising his functions as the administrator of an adjoining
Union Territory (in case of additional charge) independently of his council of
Ministers.
• Determining the amount payable by the Government of Assam, Meghalaya, Tripura
and Mizoram to an autonomous Tribal district council as royalty accruing from
licenses for mineral exploration.

Situational Discretion
• In addition to the above constitutional discretion (i.e., the express discretion
mentioned in the constitution), the governor also has situational discretion (i.e., the
hidden discretion derived from the exigencies of a prevailing political situation) in the
following cases:

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 • Appointment of chief minister: As per Article 164, discretion is exercised in
appointment of CM when a hung assembly turns up after the elections or when
coalition partner suddenly withdraws the support from the ruling party.
• Dissolution of the state legislative assembly: As per Article 174, the Governor
may Dissolve the Assembly if he/she is satisfied that the government has lost the
majority in legislative assembly.
• Dismissal of the council of ministers: Since Council of Ministers under Article 164
(2) is collectively responsible to the state legislative assembly hence if a ministry has
lost confidence of the house but refuses to resign, in that case Governor can dissolve
the Ministry.

Gubernatorial (Governor) Aid and Advice Clause

 Article 53 says that the executive power of the Union ‘shall be vested in the President
and shall be exercised by him either directly or through others subordinate to him in
accordance with [the] Constitution’. Article 74 must be read alongside this provision
to make sense of it. In its inaugurated form, Article 74(1) had a nebulous core: ‘There
shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President in the exercise of his functions.’
 Notice that the provision demoted the Prime Minister and the council of ministers to
an advisory capacity; nothing therein made ministerial advice binding on the
President. In addition, Article 78 casts a duty on the Prime Minister to ‘communicate
to the President all decisions of the Council of Ministers relating to the administration
of the affairs of the Union and proposals for legislation’ and to furnish information on
these matters, if sought.
 Taken together, these provisions lent credibility to the idea of a real—not
formal—head of the Union.
 With executive power vested in him, the President, it seemed, had the discretion to
exercise them directly or, in the interest of efficiency, delegate the same to
subordinate officers. The council of ministers, subordinate to him in the
constitutional scheme, performed an advisory role; he was free to accept or reject any
advice tendered to him.
 In Ram Jawaya Kapur v State of Punjab, the Supreme Court read the provisions
differently. Publishers of school textbooks challenged the State’s education policy. It
violated their fundamental right to freedom of trade and profession, they claimed. The

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 council of ministers, they argued, did not have the authority to formulate a restrictive
policy.
 In rejecting the argument, the Court held that the President has been made a formal
or constitutional head; ‘real executive powers are vested in the Ministers or the
cabinet’.
 With a majority in the legislature, the cabinet concentrates in itself ‘the virtual control
of legislative and executive functions’, the Court said; and ‘the most important
questions of policy are all formulated by them’.
 In other words, executive powers inherent in those that are collectively
responsible to the legislature. In India, that is the council of ministers. Articles 53
and 74, therefore, mean what Article 75 says.

Shamsher Singh v. State of Punjab, AIR 1974 SC 2192

 Two members of the lower judiciary in Punjab were dismissed. The dismissal orders
were signed in the name of the Governor, but infact were ministerial decisions. The
Governors should have exercised his discretion, the appellants contended.
 The Court rebuked the claim: ‘Wherever the Constitution requires the satisfaction of
the President or the Governor ... [it] is not ... [his] personal satisfaction ... [but the]
satisfaction of his Council of Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions.’
 ‘It is a fundamental principle of English constitutional law that Ministers must accept
responsibility for every executive act’, the Court said.
 The sovereign never acts alone, but through advisors who have the confidence of the
House of Commons.
 The rule is the same in India. Clearly, British parliamentary conventions strongly,
perhaps exclusively, mediated the Court’s reading of the Indian provisions.
 Shamsher Singh v. State of Punjab, AIR 1974 SC 2192
 Samsher Singh was signicant: leading up to it, the Court spoke about Presidential
discretion in diering voices. Two decisions are especially worth noting. In Moti Ram
Deka v General Manager, NEF Railways, a majority upheld a previously expressed
view that the power to dismiss a public servant at pleasure was a discretionary one; a
Governor could not delegate the same to a subordinate ocer.
 Later, in Jayantilal Amritlal Shodhan v FN Rana, the Court odered a long list of
discretionary powers:

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 The power to promulgate Ordinances ... to suspend [provisions] ... during an
emergency; to declare failure of the Constitutional machinery in States ... to
declare a nancial emergency ... to make rules regulating recruitment and
conditions of service ... are not powers of the Union Government; these are
powers vested in the President under the Constitution and are incapable of being
delegated or entrusted to any other body.
 As if to obviate this controversy from rearing again, Parliament amended Article 74.
Inspired by the reasoning in Samsher Singh, an elongated provision replaced the
original: ‘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.’
 A polite practice till then, ministerial primacy now enjoyed textual pedigree. But even
this, some felt, was insufficient.
 Two years later further elongation came in the form of a proviso: ‘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.’
 As it stands now, Article 74 recognises the possibility that the head of the Union may
disagree with the head of government, but offers a straightforward template by which
to resolve such disagreements. Notwithstanding these later developments, obligations
under Article 78 remain: all decisions regarding the administration of and
proposals for legislation must be communicated to the President, and
information sought for, if any, must be furnished.
 Discretionary Powers
 That Presidents and Governors enjoy discretionary powers in some situations was
claried in Samsher Singh. ‘Without being dogmatic or exhaustive, these situations’,
Krishna Iyer J suggested, ‘relate to (a) the choice of Prime Minister (Chief Minister)
... (b) the dismissal of a Government which has lost its majority in the House, but
refuses to quit oce; [and] (c) the dissolution of the House where an appeal to the
country is necessitous’.
 These are, it should be noted, among the most important discretionary powers.
But they are by no means the only ones.
 The executive power of the union and the state is given to the President and the
Governor respectively. The actions taken by the Union in exercise of the power vested

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 in the President under Article 53(1) is taken by the Government in the name of the
President as mentioned under Article 77(1) likewise the actions done in the exercise
of the executive powers of the State vested in the governor as mentioned under Article
154(1) is taken by the Government of the state in the name of the governor as per
Article 166(1).
 Further under article 300 and 361 neither the President nor the Governor can be sued
for the executive actions of the government as the executive functions are not taken
by them personally.
 In situations where the Governor perform his functions with the help of ministers he
does so by making rule for convenient transaction of the business of the Government
of the State or by allocating business to the said Ministers under Article 166(3). The
actions of the ministers under the abovementioned article are the decision of the
Governor itself. The courts have always taken the view that the powers of the
President and the Governor are similar to that of the Crown under the British
parliamentary System.
 In Shamsher Singh V. Union of India the Supreme Court held that -
 "Wherever the Constitution requires the satisfaction of President or the Governor for
the exercise of any power or function by the President or the Governor, as the case
may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and
360 the satisfaction required by the Constitution is not the personal satisfaction of the
President or of the Governor but is the satisfaction of the President or of the Governor
in the Constitutional sense under the Cabinet system of Government.."
 In the same case the court further went ahead to take note of the then Chief Justice
Mukherjea's obiter in Ram Jawaya Kapur v. State of Punjab, where it was held that,
 "This Court has consistently taken the view that the powers of the President and the
powers of the Governor are similar to the powers of the Crown under the British
Parliamentary system.....The executive power of the Union is vested in the President.
The President is the formal or Constitutional head of the executive. The real executive
powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with
the Prime Minister as the head to aid and advise the President in the exercise of his
functions"...

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M. P. Special Police Establishment v. State of M.P., AIR 2005 SC 325
 Respondents No. 4 (in both these Appeals), i.e. Rajender Kumar Singh and Bisahu
Ram Yadav, were Ministers in the Government of M. P. A Complaint was made to the
Lokayukta against them 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 under Section 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1983 and also for the offences
of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It
must be mentioned that by the time the report was given the two Ministers had
already resigned.
 Sanction was applied for from the Council of Ministers for prosecuting the two
Ministers. 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. The Council of Ministers 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. The Governor accordingly granted sanction for prosecution
under Section 197 of the Criminal Procedure Code.
 Both the Ministers filed separate Writ Petitions under Articles 226 and 227 of the
Constitution of India assailing the Order of the Governor. A Single Judge of the High
Court held that granting sanction for prosecuting the Ministers was not a function
which could be exercised by the Governor "in his discretion" within the meaning of
these words as used in Article 163 of the Constitution of India. It was held that the
Governor could not act contrary to the "aid and advice" of the Council of Ministers. It
was further held that the doctrine of bias could not be applied against the entire
Council of Ministers and that the doctrine of necessity could not be invoked on the
facts of the case to enable the Governor to act in his discretion.
 The Appellants filed two Letters Patent Appeals which have been disposed off by the
impugned Judgment. The Division Bench dismissed the Letters Patent Appeals
upholding the reasoning and Judgment of the Single Judge. It must be mentioned that

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 the authority of this Court in the case of State of Maharashtra vs. Ramdas Shrinivas
Nayak reported in 1982 (2) SCC 463 was placed before the Division Bench. The
Division Bench, however, held that the observations made therein may apply to the
case of a Chief Minister but they could not be stretched to include cases of Ministers.
 The question for consideration is 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.
 There can be no dispute with the propositions of law. However, in our view, the
above authorities indicate that if the facts and circumstances indicate bias, then
the conclusion becomes inescapable. Mr. Tankha is not right when he submits that
the Governor would be sitting in Appeal over the decision of the Council of Ministers.
However, as stated above, unless a situation arises as a result whereof the Council
of Ministers disables or disentitles itself, the Governor in such matters may not
have any role to play. Taking a cue from Antulay, it is possible to contend that a
Council of Ministers may not take a fair and impartial decision when his Chief
Minister or other members of the Council face prosecution.
 But the doctrine of 'apparent bias', however, may not be applicable in a case
where a collective decision is required to be taken under a statute in relation to
former ministers. In a meeting of the Council of Ministers, each member has his
own say. There may be different views or opinions.
 But in a democracy the opinion of the majority would prevail. Mr. Soli J. Sorabjee has
not placed any material to show as to how the Council of Ministers collectively or the
members of the Council individually were in any manner whatsoever biased. There is
also no authority for the proposition that a bias can be presumed in such a situation.
 The real doctrine of likelihood of bias would also not be applicable in such a case.
The decision was taken collectively by a responsible body in terms of its
constitutional functions. To repeat only in a case of 'apparent bias', the exception
to the general rule would apply.
 On the same analogy in absence of any material brought on records, it may not be
possible to hold that the action on the part of the Council of Ministers was actuated by
any malice. So far as plea of malice is concerned, the same must be attributed
personally against the person concerned and not collectively. Even in such a case the
persons against whom malice on fact is alleged must be impleaded as parties.

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 However, here arises another question. There are two competing orders; one of the
Council of Ministers, another by the Governor, one refusing to grant sanction another
granting the same. The Council of Ministers had refused to grant sanction on the
premise that there existed no material to show that the Respondent No. 4 in each
appeal has committed an offence of conspiracy, whereas the Governor in his order
dated 24th September, 1998 was clearly of the view that the materials did disclose
their complicity. A F.I.R. was lodged in relation to the commission of offence on 31st
March, 1998.
 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.
 In our view, the doctrine of necessity has no application to the facts of this case.
Certainly the Council of Ministers has to first consider grant of sanction. We also
presume that a high authority like the Council of Ministers will normally act in a
bonafide manner, fairly, honestly and in accordance with law.
 However, on those rare occasions where on facts the bias becomes apparent
and/or the decision of Council of Ministers is shown to be irrational and based on
non-consideration of relevant factor, the Governor would be right, on the facts of
that case, to act in his own discretion and grant sanction.
 In this view of the matter appeals are allowed.
 The decisions of the Single Judge and Division Bench cannot be upheld and are
accordingly set aside. The Writ Petitions filed by the two Ministers will stand
dismissed. For the reasons aforementioned we direct that the Order of the
Governor sanctioning prosecution should be given effect to and that of the
Council of Ministers refusing to do so may be set aside. The Court shall now
proceed with the prosecution. As the case is very old, we request the Court to dispose
off the case as expeditiously as possible.

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Gubernatorial (Governor) Ordinance Making Clause
 More strikingly, the Constitution authorises the executive to exercise original
legislative power; Presidents may promulgate ‘ordinances’ under Article 123.
Ordinances are not by-laws, rules, orders, or delegated legislation of some other kind.
They are the equivalent of parliamentary legislation.151 Two conditions must be met
for the President to invoke Article 123.
 At least one House of Parliament must not be in session and he must be satisfied that
‘circumstances exist which render it necessary for him to take immediate action’. The
satisfaction is of the council of ministers; that is how the provision has come to be
understood and practised. Ministers decide whether an ordinance is necessary and
draft it; the President formally promulgates it into law.
 In a series of cases, the Supreme Court has repeatedly held that Presidential
satisfaction in Article 123 is not subject to judicial review; it is ‘purely subjective’.
Parliament has complete discretion to decide whether or not to enact legislation. The
executive too, the Court said, has complete discretion to decide whether or not to
promulgate ordinances.
 As a result, grounds of review ordinarily applicable to the exercise of executive
power are inapplicable to ordinances. They are products of legislative power,
vested in the executive.
 Ordinances are temporary. They must be laid before both Houses once Parliament
reconvenes. The duration of ordinances, however, is not directly provided for. Article
123(2) merely says that unless properly enacted within six weeks from the date of
reassembly of Parliament, they ‘cease to operate’.155 They may also cease to operate
if both Houses of Parliament disapprove them by a resolution, or if the President
withdraws the ordinances.
 In State of Orissa v Bhupendra Kumar Bose,156 the Court struggled with the
‘cessation’ requirement. Election to a municipality was successfully challenged on the
ground that the electoral rolls had been inadequately vetted.
 Worried about similar challenges against other elections, the Governor
promulgated an ordinance validating all electoral rolls. The ordinance lapsed.
 Did the lapse revive the invalidity of the election? It did not, the Court determined.
Even if an ordinance lapses, all actions completed during the period an
ordinance is in force remain permanently valid; it only ceases to operate

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 prospectively. This view has serious implications: the executive can effectively
generate permanent changes in the law even through failed ‘legislative’ action.
 Ordinances may lapse. The possibility of repromulgating them, therefore, remains. In
DC Wadhwa v State of Bihar, the Supreme Court confronted questions about the
constitutionality of repromulgating ordinances. The State of Bihar repeatedly
promulgated some ordinances, thereby, keeping them ‘alive’ for periods ranging
from three to fourteen years.
 The executive showed no interest in enacting them through the normal legislative
procedure. Turning an ‘exceptional’ method of enacting legislation into a regular one
amounts to a usurpation, the Court reasoned. It is contrary to India’s ‘constitutional
scheme’ and, therefore, unconstitutional.
 However, a small window of exception was left open. ‘If there is too much
legislative business ... or the time at the disposal of the Legislature is short’,
repromulgation may be justied, the Court added. This exception is a convenient
alibi for governments keen to repromulgate ordinances; many have taken refuge
in it.
 Overall, the Court’s forgiving approach to ordinances has meant that they are
persistently present in India’s legislative annals.

Article 123
 123. Power of President to promulgate Ordinances during recess of Parliament
 (1)If at any time, except when both Houses of Parliament are in session, the President
is satisfied that circumstances exist which render it necessary for him to take
immediate action, he may promulgate such Ordinance as the circumstances appear to
him to require.
 (2)An Ordinance promulgated under this article shall have the same force and effect
as an Act of Parliament, but every such Ordinance—
 (a)shall be laid before both Houses of Parliament and shall cease to operate at the
expiration of six weeks from the reassembly of Parliament, or, if before the expiration
of that period resolutions disapproving it are passed by both Houses, upon the passing
of the second of those resolutions; and
 (b)may be withdrawn at any time by the President.Explanation.--Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six weeks
shall be reckoned from the later of those dates for the purposes of this clause.

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  (3)If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be void.

Article 213
 213. Power of Governor to promulgate Ordinances during recess of Legislature
 (1)If at any time, except when the Legislative Assembly of a State is in session, or
where there is a Legislative Council in a State, except when both Houses of the
Legislature are in session, the Governor is satisfied that circumstances exist which
render it necessary for him to take immediate action, he may promulgate such
Ordinances as the circumstances appear to him to require:
 Provided that the Governor shall not, without instructions from the President,
promulgate any such Ordinance if—
 (a)a Bill containing the same provisions would under this Constitution have required
the previous sanction of the President for the introduction thereof into the Legislature
or
 (b)he would have deemed it necessary to reserve a Bill containing the same provisions
for the consideration of the President; or
 (c)an Act of the Legislature of the State containing the same provisions would under
this Constitution have been invalid unless having been reserved for the consideration
of the President, it had received the assent of the President.
 (2)An Ordinance promulgated under this article shall have the same force and effect
as an Act of Legislature of the State assented to by the Governor, but every such
Ordinance--(a)shall be laid before the Legislative Assembly of the State, or where
there is a Legislative Council in the State, before both the Houses, and shall cease to
operate at the expiration of six weeks from the reassembly of the Legislature, or if
before the expiration of that period a resolution disapproving it is passed by the
Legislative Assembly and agreed to by the Legislative Council, if any, upon the
passing of the resolution or, as the case may be, on the resolution being agreed to by
the Council; and(b)may be withdrawn at any time by the Governor.Explanation.--
Where the Houses of the Legislature of a State having a Legislative Council are
summoned to reassemble on different dates, the period of six weeks shall be reckoned
from the later of (hose dates for the purposes of this clause.
 (3)If and so far as an Ordinance under this article makes any provision which would
not be valid if enacted in an Act of the Legislature of the State assented to by the

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 Governor, it shall be void:Provided that, for the purposes of the provisions of this
Constitution relating to the effect of an Act of the Legislature of a Slate which is
repugnant to an Act of Parliament or an existing law with respect to a matter
enumerated in the Concurrent List, an Ordinance promulgated under this article in the
Concurrent List, an Ordinance promulgated under this article in pursuance of
instructions from the President shall be deemed to be an Act of the Legislature of the
State which has been reserved for the consideration of the President and assented to
by him.

R. K. Garg v. Union of India, AIR 1981 SC 2138

 On 12.01.1981, both Houses of Parliament not being in session, the President issued
the Special Bearer Bonds (Immunities & Exemptions) Ordinance, 1981) (Ordinance)
in exercise of the power conferred upon him under Article 123 of the Constitution.
 The Ordinance was later replaced by the Bearer Bonds Act, 1981 (Act) which
received the assent of the President on 27.03.1981, but which was brought into force
with retrospective effect from 12.01.1981, being the date of promulgation of the
Ordinance.
 The Act has been brought into force w.e.f. the date of promulgation of the Ordinance
and Section 9 of the Act provides that anything done or any action taken under the
Ordinance shall be deemed to have been done or taken under the corresponding
provisions of the Act and its validity will be judged with reference to the Act, by
reason of its retrospective enactment, and not the Ordinance.
 It is in the circumstances wholly unnecessary to consider the constitutional validity of
the Ordinance, because, even if the Ordinance maybe unconstitutional, the validity of
anything done or any action taken under the Ordinance could still be justified with
reference to the provisions of the Act. Therefore, contentions against the powers of
the President are academic.
 The legislative power conferred on the President under this article is not a parallel
power of legislation but co-extensive with the power of Parliament to make laws. The
power to promulgate Ordinance is only exercisable in an emergent situation which
cannot wait till the next assembly of the House of Parliament and even then it shall
remain in force for a limited duration of time as specified in the Article.

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  It will, therefore be seen that legislative power has been conferred on the executive
for a necessary purpose and it is hedged in by limitations and conditions.
 The President cannot issue an Ordinance which Parliament cannot enact into a
law.
 There is therefore no substance in the contention of the petitioner that the President
has no power under Article 123 to issue an Ordinance amending or altering the tax
laws and that the Ordinance was, therefore, outside the legislative power of the
President under that Article. (Gujarat Pottery Works (P) Ltd. vs. B. P. Sood, Controller
of Mining Leases for India (1967) 1 SCR 695, Abdul Majid vs. P. R. Nayak, AIR
1951, State of Rajasthan vs. Union of India (1978) 1 SCR 1 Bom 440)

A. K. Roy v. Union of India, AIR 1982 SC 710

 This case deals with a petition made under Article 32 of the Constitution which
challenged the validity of the National Security Act, 1980. It involves the arrest of
A.K. Roy who at the time was a member of parliament. He was arrested pursuant to
the National Security Ordinance,1980 which was later repealed and replaced by the
National Security Act,1980 on charges of participating in practises detrimental to
national security and public order.
 The court held that as long as the preventive detention law is made within the
legislative power arising out of a legislative entry and when it is within the conditions
and restrictions on that power, and it cannot be construed that preventive detention is
disallowed under the Indian Constitution.
 It also held that while care must be taken to restrict the application of National
Security Act, the statute cannot be struck down for being vague or uncertain.
With respect to the ordinance making powers the court held that,
1. Ordinances made by the president is a legislative act and not an executive
act. The ordinances would be open to the same inhibitions as any other
law passed by the parliament.
2. Ordinances are law within the meaning of Article 21 of the constitution.
3. Pre-conditions to Article 123 have been fulfilled in this situation.
4. Ordinances can be made on matters already covered by legislation and
Article
5. 14,19 and 21 will not become meaningless by executive ordinances.

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  The court examined the history of ordinance-making powers in India, referring to the
Government of India Act, 1935, as well as the debates in the constitutional assembly.
The court then examines several Constitutional provisions: First, Chapter III, Part V,
provides for the President's "legislative powers." Second, Article 123(2) provides that
ordinances have the "same force and effect as an act of parliament." Third, Article
13(2) states that ordinances are considered laws unless the context indicates
otherwise. Finally, Article 367(2) states that all references to laws in the constitution
are to be interpreted as references to ordinances. The court concludes that the only
distinction between ordinances and laws is that ordinances expire six weeks after
parliament reconvenes. Thus, the ordinances by the president are made in the exercise
of legislative power. These powers exist to ensure that in times of crisis when both
houses of parliament are not in session, laws can still be passed and the public's safety
is not jeopardised.
 The court drew on the preceding discussions and stated that ordinances must be
treated as laws because they would otherwise be exempt from the requirements placed
by Article 13(2) of the constitution. Second, the court cited Constitution Assembly
discussions and recognised that it is inherent that ordinances will be subject to
fundamental rights. Finally, the court stated that Article 21's purpose is to exemplify
that the deprivation of a person's right to life or liberty should be brought on by a
State-created law, not by natural law norms.
 The court noted that the constitution does not impose any inhibitions on ordinance
making power. Additionally, as legislations are now found on nearly every manner it
would be impossible to make ordinances which do not overlap with legislations.
Secondly, as ordinances will be scrutinized from Article 14, 19 and 21 it is difficult to
see how they would obliterate the same.

Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579

 In this case, the petitioner, Dr D.C. Wadhwa was a professor of economics in Pune
and had filed a PIL challenging the general power of the Governor to re-promulgate
various ordinances by the governor of Bihar.
 The petitioner had extensively researched and published about the misuse of the
ordinance making power of the governor of Bihar because the government of Bihar
had promulgated 256 ordinances between 1967 and 1981 and these 256 ordinances
were kept alive for periods ranging between one and fourteen years by mechanically

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 re-promulgating the ordinances without changing any content of the ordinance or
trying to turn it into an Act.
 The general power of the Governor to re-promulgate the ordinance was
examined by the court as several ordinances had been re-promulgated over
thirty times.
 The immediate challenge was to the three ordinances that were kept alive for a period
of 10-14 years. The main issue contested was whether the Governor could
mechanically re-promulgate the ordinance for an indefinite period of time, and thus
take over the power (from the legislature) to legislate through the powers conferred on
him under Article 213.
 The issue in the case holds great constitutional law importance as the executive was
taking over the power to him to legislate by way of re-promulgating the ordinances.
This practice of the executive is a violation of the constitutional provision as every
citizen has a right to be governed by laws made in accordance with the Constitution
i.e. the legislature and not by-laws made by the executive.
 There were various arguments made by the respondents that the petitioners had no
locus standi to maintain the writ petition since they were outsiders who had no legal
interest to challenge the validity of re-promulgation of the ordinances. Also, it was
contended that the two ordinances had already been enacted into an Act of Parliament
and the third ordinance was sent as a proposal to be enacted into an Act, thus the
question was merely academic in nature. All these arguments were turned down by
the court as the third ordinance, though presented as a proposal to the parliament, was
still in force. Another reason that made the court adjudicate upon this issue was that
the court noted that the ordinances promulgated under Article 123 had never been re-
promulgated till the pendency of this suit but the Government of Bihar was keeping
alive various ordinances bypassing circulars which clearly directed various officials to
mechanically re-promulgate the ordinances as soon as they expire. The maximum
time an ordinance was re-promulgated was 39 times. In the end, the court ruled that
the mechanical re-promulgation of the ordinances for a period of one to fourteen years
without going to the legislation was a colourable exercise of power by the executive
and ruled that re-promulgation of ordinances was unconstitutional.
 The judgment delivered by Bhagwati, J falls apart when the court says that there
may be times when the parliament cannot deal with the promulgated ordinances
because of a shortage of time. Therefore the court gave two exceptions to this

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 rule in which re-promulgation can be allowed; firstly, if the legislature cannot
take it up due to existing legislative business; secondly, if the government feels
that an emergent situation has emerged and re-promulgation is necessary to deal
with it.
 To this, the court observed that the determination of this question depends on the true
interpretation of Art. 213 of the Constitution. By interpreting the Art. 213, the court
held that the power conferred on the Governor to issue Ordinances is vested as an
“emergency power”; for taking immediate action at the time when it becomes
necessary to take such action at the time when the Legislature is not in the session.
The primary lawmaking authority under the Indian Constitution is the Legislature and
not the Executive but when the former is not in session and it becomes of utmost
important to take some actions or make any law for the public interest, then under
such circumstances the Governor is vested with the power to promulgate the
ordinance.
 But every such Ordinance promulgated by the Governor shall be placed before
the Legislature and it would cease to operate after the expiry of 6 weeks til the
Legislature reassembles again; or before the expiry of the period as agreed by the
Legislative Council.
 The court held that, the power under Art. 213 of the Constitution is used to meet
“extra-ordinary” situations and it cannot be allowed to be “perverted to serve political
ends”. The Government cannot by-pass the Legislature and without enacting the
provisions of the Ordinance into an Act of the Legislature, re-promulgate the
Ordinance as soon as the Legislature is prorogued else it would be “Colourable
exercise of power on the part of the Executive”.

Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1

 The Bihar Government in 1989 passed an ordinance named the Bihar Non-
Government Sanskrit Schools (Taking over of Management and Control). This
ordinance stated that around total of 429 Sanskrit schools which are private controlled
will be now taken over by the Government. Due, to which large amounts of
employees and teacher who were part of these private schools, in a shift were
transferred to became the employee of the state government. This ordinance was re-
promulgated many a times and no law could ever be passed related to this
ordinance as it was not presented in the state legislature, not even a single time.

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 Therefore, for the payment of salary and other dues, the teacher and employees
filled petition before the High court of Patna.
 The main question which the Patna High Court dealt was with regarding whether the
re-promulgation of ordnances seven time was illegal or unconstitutional. In this
judgement, the Hight court while dismissing the petition held that successive
ordinance promulgation without any cogent reason is not valid in the eyes of law.
 The Patna High Court relied on the judgement of D.C. Wadhwa v. State of Bihar and
held that the basic scheme of constitutionalism is violated by the re-promulgation of
ordinance by the Bihar government and thus it is unconstitutional in the eyes of law.
The High court also held that 305 schools are genuine which must be paid their salary
by the government till 30-04-1992 (last validity of ordinance).
 Also, now the private school management of schools would be governed in the same
manner that prevailed prior to the promulgation of first ordinance.
 Against the above order, an appeal was filled in the apex court. The bench (2judge) of
the Apex court also held that the basic scheme of constitutionalism is violated by the
re-promulgation of ordinance by the Bihar government. The apex court in
concurrence held that the entire exercise of promulgating ordinance is a fraud on the
power conferred by article 213 of the constitution.
 “However, they differed on the validity of the first Ordinance and hence the matter
was referred to a 3-judge bench. In 1999, this bench (comprising of 3 judges) further
referred it to a 5-judge bench, considering that the matter raised substantial questions
related to the Constitution. On 2nd January, 2017, the Apex court (7 Judge Bench)
decided the Krishna Kumar case.
1. Whether any rights, duties, obligation created by an Ordinance will exist even after
that particular ordinance ceases to operate?
2. Whether the Bihar government ordinances was legally valid in its nature?
3. Whether Article 123 or 213 makes out mandatory obligation on the part of the
executive to present the ordinance in the Parliament and State Legislature
respectively?
4. Whether re-promulgation of an Ordinance goes against the basic spirit of
constitutionalism?
 The Apex court in the present case gave a landmark judgement on the issue of
whether re-promulgation of ordinance goes against the basic feature of
constitutionalism while relying on the judgement of DC Wadhwa v. State of Bihar

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 held that re-promulgation of ordinances goes against the basic spirit of
constitutionalism in the ratio of 5:2 and gave two reason to support above reasoning
that-
• The purpose of the power which is given in article 213 and 123 to the
Governor and President respectively to issue ordinance is defeated.
• Such re-promulgation by-passes the supreme law-making authority
(Legislature).
 It is a well-known principle of Indian constitution that article 213 and 123 provides
power to President and Governor respectively to promulgate ordinances and the Apex
court held that this power of President and Governor is not immune from any kind of
judicial review. Also, it is important to note that as the executives are collectively
answerable to the Parliament/ State Legislature, this power is in control of legislature.
The court categorically held that not placing ordinances before the legislature
and instead re-promulgating it is a blatant misuse of the law and also it is
subversion of legislative process of law making by the Parliament as well as State
Legislature. It is important to note that Justice D.Y. Chandrachud, who authored the
majority judgement held that the power of promulgating ordnance which is given to
the President and Governor should be used only when the legislature is not in session
and also this power is a kind of conditional power.
 The judgement made it clear that it is mandatory constitution obligation on the part of
the government to lay down ordinance before the legislature, so that the legislature
could decide on the following:
1. The need, validity, and expediency to issue the Ordinance;
2. Whether the Ordinance should be approved;
3. Whether a Statute must be enacted in furtherance of the Ordinance.
 The judgement stated that all ordinance which are re-promulgated again and again and
are not placed before the Legislature are against constitutionalism and therefore the
salary which has already been given to the teachers must not to be recovered from
them as they are not given the status of government teacher.
 The important aspect that court addressed is that the power of the President or
Governor to promulgate ordinance must not be construed as a law-making body
parallel to the legislature and court also delve into the different expressions used
in the constitution of India such as repeal, void, cease to have effect and cease to
operate and stated that the express ceased to operate and void used separately in

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 the same provisions of Article 123 and 213 is not used to convey the same
meaning.
 “Another important observation was that any right, privilege, obligation or liability
provided by the Ordinance will only survive if it fits within any of the three tests
mentioned below:
• the effect of the Ordinance should be irreversible in nature;
• reversing of the consequences of the Ordinance should be impractical;
• a compelling public interest must exist in order to continue the effect of the
Ordinance.”

Government of NCT of Delhi v. Union of India (2018) 8 SCC 501

 In the spirit of cooperative federalism, the Union must exercise its powers within the
boundaries created by the Constitution. NCTD, having a sui generis federal model,
must be allowed to function in the domain charted for it by the Constitution. The
Union and NCTD share a unique federal relationship. It does not mean that NCTD is
subsumed in the unit of the Union merely because it is not a “State”.
 The official designation of the Union Territory (UT) of Delhi is the National Capital
Territory (NCT) of Delhi. The Delhi Government is currently formed with the Aam
Aadmi Party in the majority.
 Under Article 239 of the Constitution of India, the administration of UT’s is handled
by an administrator appointed by the President. However, in 1991 the Constitution
(Sixty-ninth Amendment) Act, 1991 introduced Article 239AA which created an
elected Legislative Assembly and a Council of Ministers including a Chief Minister
for NCT Delhi. This Assembly has the power to make laws for NCT Delhi with
respect to any of the matters under the State or Concurrent Lists (except public order,
police and land matters). The ‘Lieutenant Governor’ (the LG) of Delhi was designated
the Administrator of the NCT Delhi.
 The relationship between Articles 239 and 239AA is the source of the current political
contest between the Union and NCT Delhi government over the administrative
control over the NCT Delhi territory. The SC has previously ruled upon the scope of
the LG’s powers in 2018. A five-judge Bench held that the LG is bound by the aid and
advice of the Council of Ministers for all matters where the Legislative Assembly has
the power to make laws. They also ruled that the LG only needs to be consulted on
decisions taken by the Council, but his concurrence isn’t required.

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 The Union Government sought to overcome the Supreme Court’s decision by
enacting the Government of National Capital Territory (Amendment) Act, 2021 (the
Amendment) which came into force on April 27th, 2021. It barred the Legislative
Assembly from considering matters on the day-to-day administration of the NCT
Delhi and from conducting any inquiries into administrative decisions. It requires any
bills passed by the Legislative Assembly to be reserved by the LG for consideration
by the President if the bill ‘incidentally’ covers any matters outside the Assembly’s
purview. Further, it mandates that all executive action taken by the government must
first receive the LG’s ‘opinion’. The Delhi Government filed a petition in the
Supreme Court (SC) challenging the constitutional validity of the Amendment on
August 10th 2021.
 In their petition, the Delhi Government argues that the Amendment diminishes the
powers and functions of the elected Legislative Assembly and establishes the LG as
the default administrative authority over NCT Delhi on all matters.
 They urge the court to declare that this constitutional amendment damages the basic
features of federalism, separation of powers, rule of law and representative democracy
and is hence unconstitutional.
 On May 11th, 2023, the SC upheld the Delhi government’s powers to control civil
servants and day-to-day administration of the NCT of Delhi.
 Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
 Supreme Court: In the matter dealing with the asymmetric federal model of
governance in India, involving the contest of power between a Union Territory and
the Union Government, the Constitution bench of Dr. D.Y. Chandrachud*, C.J., M.R.
Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, J.J., held the following:
 • There does not exist a homogeneous class of Union Territories with similar
governance structures.
 • NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD
is accorded a “sui generis” status, setting it apart from other Union Territories.
 • The Legislative Assembly of NCTD has competence over entries in List II and List
III except for the expressly excluded entries of List II. In addition to the Entries in
List I, Parliament has legislative competence over all matters in List II and List III in
relation to NCTD, including the entries which have been kept out of the legislative
domain of NCTD by virtue of Article 239AA(3)(a).

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  • The executive power of NCTD is co-extensive with its legislative power, that is, it
shall extend to all matters with respect to which it has the power to legislate.
 Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
 • The Union of India has executive power only over the three entries in List II over
which NCTD does not have legislative competence.
 • The executive power of NCTD with respect to entries in List II and List III shall be
subject to the executive power expressly conferred upon the Union by the
Constitution or by a law enacted by Parliament
 • The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article
239-AA(3) cannot be read to further exclude the legislative power of NCTD over
entries in the State List or Concurrent List, over and above those subjects which have
been expressly excluded • With reference to the phrase “Subject to the provisions of
this Constitution” in Article 239-AA(3), the legislative power of NCTD is to be
guided, and not just limited, by the broader principles and provisions of the
Constitution;
 • NCTD has legislative and executive power over “Services”, that is, Entry 41 of List
II of the Seventh Schedule because the definition of State under Section 3(58) of the
General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution.
Thus, Part XIV is applicable to Union territories; and the exercise of rule-making
power under the proviso to Article 309 does not oust the legislative power of the
appropriate authority to make laws over Entry 41 of the State List.

UNR Rao v. Indira Gandhi, 1971 AIR SC 1002

 On 27th December 1970, the Fourth Lok Sabha was dissolved by the then President
V. V. Giri on the recommendation of Prime Minister Indira Gandhi. This Lok Sabha
was dissolved 1 year before its actual dissolution date. The Prime Minister, Indira
Gandhi, acknowledged that her minority Government was likely to fall as it didn’t
enjoy the confidence of the House of People anymore. Therefore, she dissolved the
Lok Sabha in order to carry out fresh Lok Sabha elections.
 Even after the dissolution of the Lok Sabha, the respondent, Indira Gandhi and her
Council of Ministers continued with their respective posts. Hence, the petitioner
approached the Supreme Court of India to issue a writ of quo warranto against the
respondent to show by what authority she was holding the office of Prime Minister of

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 India in the absence of the Lok Sabha. The major issue and the arguments of the
parties are discussed hereinafter.

Issue Raised
 Whether the Council of Ministers, including the Prime Minister of India, is entitled to
hold their respective offices after the dissolution of the House of People/Lok Sabha?

Petitioner’s Arguments
 The Petitioner raised a series of questions before the Supreme Court in his arguments.
Firstly, whether Indira Gandhi and other ministers can hold their offices in the
absence of Lok Sabha. His contentions were clear, according to Article 85(2) of the
Constitution of India, the Prime Minister and his Council cease to hold their
respective offices once the Lok Sabha is dissolved by the President of India.
 Secondly, Article 75(3) says that “the Council of Ministers shall be collectively
responsible to the House of People.” The appellant argued that how can the Council
of Ministers be held accountable to the people when there is no Lok Sabha in the first
place?
 Lastly, the appellant argued that even if the question of void may arise in carrying out
the functions of the Government of India in the absence of the Council of Ministers
and the Prime Minister, the same can be addressed under Article 53(1) of the
Constitution. This Article gives powers to the President to handle the executive
functions of the Union Government. He can use these powers directly or through his
subordinate officers. Hence, it is not essential for the respondent to hold the office,
specifically in the absence of Lok Sabha.

Respondent’s Arguments
 The respondent argued that even though the House of People was dissolved prior to
its actual dissolution date, the Prime Minister and his Cabinet can continue to hold
their respective offices as a ‘caretaker’. Without the Prime Minister and his Cabinet,
the administration of the country would be disturbed. The respondent further argued
that a similar convention is also followed in England and in the countries that follow
the system of Responsible Government which was thoroughly discussed by the
Supreme Court in detail in their judgement.

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Reasoning
 While addressing the arguments of the petitioner, the Chief Justice took note of the
judgement in Ram Jawaya Kapur vs. State of Punjab (1955) that the Indian
Constitution is based on the British Parliamentary system. In this system, the
executive develops governmental policies for the state. Once these policies are
created, the executive converts them into laws through the legislative process. The
executive can exercise this function as long as they enjoy the confidence of the House
of People, i.e., the legislative branch of the State.
 The Executive functions include the determination of these policies as well as the
implementation of them through various executive bodies given under the
Constitution. Thus, the primary functions of the executive include the creation of new
laws, the maintenance of law and order in the state, the promotion of the social and
economic welfare of its citizens, directing foreign policy and also looking after the
overall administration of the State.
 While convincing the Supreme Court, the appellant cited the case law of Sanjeevi
Naidu vs. State of Madras (1970). They specifically referred to Section 68C of the
Motor Vehicle Act of 1939, in which a power is given to the authority and can only be
exercised by that authority. The authority in this case is the State Government which
includes the Governor who will exercise this function with the help of the Council of
Ministers. Hence, if there is an opinion required under this Section, then it must be
formulated by the concerned ministers and not by anyone else. The appellant further
cited the essence of the doctrine of ministerial responsibility in the cabinet form of
Government and emphasised that functions that are cited by the law to the specific
authority must be rendered by them and not by other organs of the State. This is not
permissible under the constitution.
 However, Justice Hegde, speaking on behalf of the Supreme Court, repealed the
contention of the appellant, stating that the appellant is under misconception here
regarding the principles of the Indian Constitution. According to the Constitution of
India, the Governor is the Constitutional head of the State and real administrative
power lies in the hands of the Council of Ministers. But it is not even possible for the
Council of Ministers to exercise these functions alone. Hence, the Constitution,
under Article 166(3), has given power to the Governor to formulate rules for easy
administration of the affairs of the State Government. The Article further gives power

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 to the Governor to allocate these business transactions among the ministers for more
convenience. Even the Council of Ministers can advise the Governor to frame rules
for their convenience and easy administration. Further, the Governor can designate a
particular function to an official only with the advice of the Council of Ministers.
Hence, the Council is responsible for every action to the legislature and this is the
essence of joint responsibility.

Judgment
 In this case, the Supreme Court of India held that the Council of Ministers headed by
Prime Minister Smt. Indira Gandhi will continue to hold their respective offices even
after the dissolution of the House of the People. The Court further added that they
shall act as caretakers of the administration of the country. The judgement affirmed
that the President is the nominal head of the state and cannot exercise the executive
functions of the Government alone, as the true power lies in the hands of the Council
of Ministers, including the Prime Minister elected by the People of India. The Court
cited the importance of the principle of responsible government by referring to the
importance of the executive’s accountability to the Lok Sabha.
 After the judgement of the Supreme Court, Indira Gandhi and the Council of
Ministers continued their positions as caretakers until the new general elections were
held. The Fifth Lok Sabha elections were held in March 1971, in which the Indian
National Congress won and Indira Gandhi was reelected as the Prime Minister of
India.

Module 4: Anti Defection Laws

Article 102 in Constitution of India
102. Disqualifications for membership
(1)A person shall be disqualified for being chosen as, and for being, a member of
either House of Parliament—
(a)if he holds any office of profit under the Government of India or the Government
of any State, other than an office declared by Parliament by law not to disqualify its
holder;
(b)if he is of unsound mind and stands so declared by a competent court;
(c)if he is an undischarged insolvent;

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 (d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;(e)if he is so disqualified by or under any law made by Parliament.
Explanation.-- For the purposes of this clause a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for such State.
(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 in Constitution of India

191. Disqualifications for membership
(1)A person shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State
(a)if he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
(b)if he is of unsound mind and stands so declared by a competent court;
(c)if he is an undischarged insolvent;
(d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;
(e)if he is so disqualified by or under any law made by Parliament.
Explanation. For the purposes of this clause, a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for the Union
or for such State.
(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.

[TENTH SCHEDULE] [Articles 102(2) and 191(2)] Provisions as to disqualification

on ground of defection
2. Disqualification on ground of defection.—
(1) Subject to the provisions of 3[paragraphs 4 and 5], a member of a House belonging to any
political party shall be disqualified for being a member of the House—

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(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.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph,
a person who, on the commencement of the Constitution (Fifty-second Amendment)
Act, 1985, is a member of a House (whether elected or nominated as such) shall,—
(i) where he was a member of political party immediately before such
commencement, be deemed, for the purposes of sub-paragraph (1) of this
paragraph, to have been elected as a member of such House as a candidate set
up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who
has been elected as such otherwise than as a candidate set up by any political
party for the purposes of sub-paragraph (2) of this paragraph or, as the case

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 may be, be deemed to be a nominated member of the House for the purposes
of sub-paragraph (3) of this paragraph.
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.
(2) 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.
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.
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

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 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.
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.
Paragraph 7 declared invalid for want of ratification in accordance with the proviso to
clause (2) of article 368 as per majority opinion in Kihoto Hollohon Vs. Zachilhu and
others (1992) 1 S.C.C. 309.

Introduction
The 52nd Amendment Act, 1985 lead to amendment in Article 101, 102, 190 and 191
of the Constitution to provide the grounds for vacation of seats for the disqualification
of the members ; and also inserted Tenth Schedule.
The statement of objects and reasons been given for the amendment is:
“The evil of political defections has been a matter of national concern. If it is not
combated, it is likely to undermine the very foundation of our democracy and the
principles with sustain it.”
Rule 2- tenth schedule lays the grounds for disqualification of the member’s i.e.: If a
member of a house belonging to a political party:
1. Has voluntarily given up his membership of such political party, or
2. Votes, or abstain from voting in such House, contrary to the direction of his
political party.
However, if the member has taken prior permission, or is condoned by the party
within 15 days from such voting or abstention, the member shall not be disqualified.
2. If an independent candidate joins a political party after the election.

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 If a nominated member of a house joins any political party after the expiry of six
months from the date when he becomes a member of the legislature.
Rule 4 and 5- states the exemption from disqualifications i.e.:-
A member of the house shall not be disqualified where his original political party
merges with another political party, and he and any other member of his political
party:-
1. Have become members of the other political party, or of a new political party
formed by such merge
2. Have not accepted the merger and opted to function as a separate group.
Rule 3- state that there will be no disqualification of members if they represent a
faction of the original political party, which has arisen as a result of a split in the
party. A defection by at least one-third members of such a political part was
considered as a spilt which was not actionable.

The Anti-Defection Law Explained

On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of
Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better
known as the anti- defection law) for having defected from their party. These
members were elected on a Janata Dal (United) ticket. The Madras High Court is also
hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil
Nadu Assembly in September 2017 under the anti- defection law. Allegations of
legislators defecting in violation of the law have been made in several other states
including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana
and Uttarakhand in recent years. In this context, we explain the anti-defection law.
What is the anti-defection law?
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after
a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.
The anti-defection law sought to prevent such political defections which may be
due to reward of office or other similar considerations.
The Tenth Schedule was inserted in the Constitution in 1985. It lays down the
process by which legislators may be disqualified on grounds of defection by the
Presiding Officer of a legislature based on a petition by any other member of the
House. A legislator is deemed to have defected if he either voluntarily gives up
the membership of his party or disobeys the directives of the party leadership on

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 a vote. This implies that a legislator defying (abstaining or voting against) the
party whip on any issue can lose his membership of the House. The law applies to
both Parliament and state assemblies.

Exceptions
Are there any exceptions under the law?
Yes, legislators may change their party without the risk of disqualification in certain
circumstances. The law allows a party to merge with or into another party provided
that at least two-thirds of its legislators are in favour of the merger. In such a scenario,
neither the members who decide to merge, nor the ones who stay with the original
party will face disqualification.
Various expert committees have recommended that rather than the Presiding Officer,
the decision to disqualify a member should be made by the President (in case of MPs)
or the Governor (in case of MLAs) on the advice of the Election Commission. This
would be similar to the process followed for disqualification in case the person holds
an office of profit (i.e. the person holds an office under the central or state government
which carries remuneration, and has not been excluded in a list made by the
legislature).

The Anti-Defection Law Explained

How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law. We discuss some
of these below.
The phrase ‘Voluntarily gives up his membership’ has a wider connotation than
resignation
The law provides for a member to be disqualified if he ‘voluntarily gives up his
membership’. However, the Supreme Court has interpreted that in the absence of
a formal resignation by the member, the giving up of membership can be
inferred by his conduct. In other judgments, members who have publicly
expressed opposition to their party or support for another party were deemed to
have resigned.
In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on
Monday, they were deemed to have ‘voluntarily given up their membership’ by

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 engaging in anti-party activities which included criticizing the party on public forums
on multiple occasions, and attending rallies organised by opposition parties in Bihar
Decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to
judicial review. This condition was struck down by the Supreme Court in 1992,
thereby allowing appeals against the Presiding Officer’s decision in the High Court
and Supreme Court. However, it held that there may not be any judicial intervention
until the Presiding Officer gives his order.
In 2015, the Hyderabad High Court, refused to intervene after hearing a petition
which alleged that there had been delay by the Telangana Assembly Speaker in acting
against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer has to decide?
The law does not specify a time-period for the Presiding Officer to decide on a
disqualification plea. Given that courts can intervene only after the Presiding
Officer has decided on the matter, the petitioner seeking disqualification has no
option but to wait for this decision to be made.
There have been several cases where the Courts have expressed concern about the
unnecessary delay in deciding such petitions. In some cases this delay in decision
making has resulted in members, who have defected from their parties, continuing to
be members of the House. There have also been instances where opposition members
have been appointed ministers in the government while still retaining the membership
of their original parties in the legislature.
In recent years, opposition MLAs in some states, such as Andhra Pradesh and
Telangana, have broken away in small groups gradually to join the ruling party. In
some of these cases, more than 2/3rd of the opposition has defected to the ruling
party.
In these scenarios, the MLAs were subject to disqualification while defecting to
the ruling party in smaller groups. However, it is not clear if they will still face
disqualification if the Presiding Officer makes a decision after more than 2/3rd of the
opposition has defected to the ruling party. The Telangana Speaker in March 2016
allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS,
citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the
time of taking the decision.

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 In Andhra Pradesh, legislators of the main opposition party recently boycotted the
entire 12-day assembly session. This boycott was in protest against the delay of
over 18 months in action being taken against legislators of their party who have
allegedly defected to the ruling party. The Vice President, in his recent order
disqualifying two JD(U) members stated that all such petitions should be decided by
the Presiding Officers within a period of around three months.

Does the anti-defection law affect the ability of legislators to make decisions?
• The anti-defection law seeks to provide a stable government by ensuring the
legislators do not switch sides. However, this law also restricts a legislator from
voting in line with his conscience, judgement and interests of his electorate. Such a
situation impedes the oversight function of the legislature over the government, by
ensuring that members vote based on the decisions taken by the party leadership, and
not what their constituents would like them to vote for.
• Political parties issue a direction to MPs on how to vote on most issues,
irrespective of the nature of the issue. Several experts have suggested that the
law should be valid only for those votes that determine the stability of the
government (passage of the annual budget or no- confidence motions).

Disqualification on defection on the ground of split in a political party

1. Article 102(2) and Article 191(2) provides for Anti-Defection laws regarding the
members of Lok Sabha and the state legislative council. According to this law, a
member of a House, belonging to any political party, shall be disqualified as a
member of the House on the following basis-
• If the person voluntarily gives up his/her membership of the political
party to which he/she belongs; or
• If the person votes or abstains from voting in contrary to any direction
issued by the political party or by any person or authority authorized to
give directions.
• In either case, the prior permission of such political party, person or authority
must be sought. The voting or abstention must be approved by the political
party, person or authority within fifteen days from the date of voting or
abstention.

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 • When a member of a House claims that he and any other members of his party
have formed a group representing a faction emerging as a result of a split in
his original political party. If such a group consists of one-third or more of the
members of such a political party then the ministers cannot be disqualified
under Anti-Defection laws.
In order to protect the true essence of democracy, the Anti-defection law was
introduced in the 10th schedule. It was a measure to reduce the rampant horse trading
that was happening under the popular phenomenon of “Aaya Ram Gaya Ram” in the
political parties. Initially, the law allowed defection if 1/3rd of the party members
agreed to split their party. But this provision backfired and resulted in mass
defections. So this was subsequently changed in the 91st amendment and the bar
was raised to 2/3rd. Under the new provisions, a member won’t be disqualified in
case of a split in the following two conditions:
1) that he/she has willingly given up his membership in his original political
party; or
2) that he/she has voted or not voted in the House contrary to the instructions
by such political party or by any person or authority authorised by it and such
an act has not been condoned by such political party, person or authority
within fifteen days.
• Can the Governor sanction for Prosecution of Ministers under Corruption Act?
• The Governor can sanction for the prosecution of the ministers but the proof for the
same needs to be satisfactory. There have been many cases where the Governor has
ordered a sanction for the prosecution of a Minister, sometimes with the advice of the
Council of Ministers and at times on his own discretion and one such case has been
discussed below.

Loopholes in the Anti Defection Law

1. Power to the Speaker- as per Rule 6 of the schedule, the Speaker of the House or
the Chairman has been given wide and absolute powers to decide the case related to
disqualification of the members on the grounds of defection. The Speaker still
remains as the member of the party which had nominated him/her for the post of
speaker.
One of the major criticisms of this power is that not necessary the speaker has
legal knowledge and expertise to look upon and perform such acts in such cases.

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2. Judicial Review- as per the Rule 7, which bars the jurisdiction of the courts in any
matter connected with disqualification of a member of a House, which states that it is
outside the jurisdiction of all courts including the Supreme Court under Article 136
and High Courts under Article 226 and 227 of the Constitution to review the decisions
made by the Speaker in this regard.
This can have terrible consequences in the light of difficulties enumerated above.
The legislature in a way tried to restrict the power of judiciary provided under
the Constitution, which is not tenable.
The rule barring the jurisdiction of Courts has been challenged multiple times
before the courts and the Court, in Kihoto Hollohon v. Zachilhu and Others, held
that the law is valid in all respects expect on the matter related to the judicial
review, which was held as unconstitutional. Any law affecting Articles 136, 226
and 227 of the Constitution is required to be ratified by the States under Article
368(2) of the Constitution. As the required number of State assemblies had not
ratified the provision, the Supreme Court declared the rule to be
unconstitutional.
The Court also held that the Speaker, while deciding cases pertaining to defection of
party members, acts as a tribunal and nothing more than that, and that his/ her
decisions are subject to the review power of the High Courts and the Supreme Court.
Mentioning a rule of caution, the Supreme Court warned against the exercise of power
of judicial review prior to making of any decision by the Speaker.
3. No individual stand on part of members- according to the Rule 2 it can be seen that
the anti-defection law puts the members of the party into a bracket of obedience in
accordance with the rules and policies of the party , restricting the legislator’s
freedom to oppose the wrong acts of the party, bad policies, leaders and bills.
A political party acts as a dictator for its members who are not allowed to dissent. In
this way it violates the principle of representative democracy wherein the members
are forced to obey the high command.
In a well-settled representative democratic environment, people wish for that the
electorate are taken care of their acts rather than working on the instructions and
wishes of the party leaders and their policies. With the increasing powers being given
to a party member, the members are not allowed to vote on any issue independently
whether they are a part of party manifesto or not. The law tends to blur the distinction
between defiance on part of members and defection of the members leading to their

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disqualification. With the lack of individuality on the part of members belonging to
their parties, the anti- defection laws have failed to achieve the desired results. 4.
What amounts to ‘voluntarily giving up’- Rule 2(1)(a) of the Tenth Schedule mentions
that the member of the House would be disqualified from the party if he voluntarily
gives up his membership of the political party. But the Schedule does not clarify
what “voluntarily giving up” means. This question had arise before the Supreme
Court in Ravi Naik v. Union of India and the Court while interpreting the phrase
held that it has a wider connotation and can be inferred from the conduct of the
members. The words ‘voluntarily gives up his membership' were not held
synonymous with ‘resignation'. It was held that a person may voluntarily give up
his membership of a political party even without tendering his resignation from
the membership of that party.
In G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, a question arose
whether joining another political party after being expelled from the original party
would amount to voluntarily giving up the membership or not. It was held in this case
that on being expelled from the party, the member, though considered ‘unattached’,
still remains the member of the old party for the purpose of the Tenth Schedule.
However, if the expelled member joins another political party after expulsion, he is
considered to have voluntarily given up the membership of his old political party.
Rajendra Singh Rana v. Swami Prasad Maurya and Others, is yet another case which
expanded the meaning to the words ‘voluntarily giving up of the membership.’ It was
held in the case that a letter by an elected party member to the Governor requesting
him to call upon the leader of the opposite party to form a Government would by itself
amount to an act of voluntarily giving up membership of the party of which he is an
elected member.
5. Problem with merger provision- While Rule 4 of the Tenth Schedule seems to
provide some exception from disqualification of members in the cases relating to
mergers, there seems to be some loophole in the law. The provision tends to safeguard
the members of a political party where the original political party merges with another
party subject to the condition that atleast two-third of the members of the legislature
party concerned have agreed to such merger. The flaw seems to be that the exception
is based on the number of members rather than the reason behind the defection.
The common reasons for defection of individual members seem to be availability
of lucrative office or ministerial posts with the other party. It can very well be

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 expected that the very same reason might be available with those two-third
members who have agreed to the merger. If defection by an individual member is
not acceptable, it is very much difficult to assert that the same would be valid in
case of mergers only because a large number of people are involved.
Role of Presiding Officers in Context of Anti-Defection Law
The 10th Schedule provides presiding officers of legislatures with the power to decide
cases of defection. However, it has been noted that as the Speaker is dependent upon
continuous support of the majority in the House, he may not satisfy the requirement of
an independent adjudicating authority.
In the past, decisions of the Speakers with regard to disqualifications have been
challenged before courts for being biased and partial. Several expert committees
and commissions, including the Dinesh Goswami Committee (1998), Commission
to Review the Constitution (2002) and the Law Commission (2015) have
therefore recommended that defection cases must be decided by the President or
Governor for centre and states respectively, who shall act on the advice of the
Election Commission. This is the same practice that is followed for deciding
questions related to disqualification of legislators on other grounds, such as holding
an office of profit or being of unsound mind, under the Constitution. However, note
that the Supreme Court has upheld the provision granting the presiding officer the
power to take these decisions on the ground that,
The Speakers/Chairmen hold a pivotal position in the scheme of parliamentary
democracy and are guardians of the rights and privileges of the House. They are
expected to take far reaching decisions in the functioning of parliamentary
democracy. Vestibule of power to adjudicate questions under the Tenth Schedule
in such constitutional functionaries should not be considered exceptionable.

Where’s the party? Towards a constitutional biography of political parties -

Aradhya Sethia
Although the original text of the Indian Constitution did not mention political parties,
parties are one of the most crucial institutions for the functioning of Indian
constitutional structures. This paper is one of the first attempts to examine them
through a constitutional lens in India. I look into the founding debates to inquire how

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 the framers understood the relationship between party dynamics and constitutional
design.
These debates demonstrate a profound relationship between political parties and
constitutional structures, which help us move towards a realist account of Indian
constitutional law and demonstrate various modes and functions of
constitutionalization of political parties.
Moving beyond founding, I will discuss the causes of the anti-defection
amendment (the only provision in the Constitution that mentions the term
“political party”) and the way it fundamentally transformed the constitutional
characterization of our democracy – from a candidate- based representative
democracy to a party-based one. This constitutional transformation causes an
inconsistency in the Indian law of democracy: while the anti-defection
jurisprudence recognizes parties as the fundamental unit of representation,
general election law continues with the old conception of candidates as the
primary representative unit. This difference affects a wide array of issues
ranging from party funding to intra-party democracy.

Introduction
• Indian constitution-making, too, was firmly, albeit not completely, rooted in this
tradition of constitutionalism. However, the absence of political parties in contempor-
ary constitutional thought does not provide a satisfactory account of the absence of
parties in the original Indian Constitution. This is because the Indian founders incor-
porated several constitutional innovations to deal with problems specific to India, but
they refrained from adopting innovative ideas of party constitutionalization.
• Yet, the original text of the Indian Constitution did not contain any provision about
political parties. Prior to the addition of the Tenth Schedule to the Constitution in
1985, the constitutional text was not concerned with political parties. The amendment
marks an important episode in constitutional biography of political parties, and neatly
divides the constitutional treatment of parties into pre-amendment (founding) and
post-amendment periods. This paper, therefore, gives an account of first, the absence
of party constitutionalization at founding, and second, sub- sequent party
constitutionalization in India.
• What is clear from the above discussion is that while the textual division of powers
between the legislature and executive remains constant, whether that formal division

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 imposes any meaningful restraints on branches is dependent significantly on dynamics
between and within the party/coalition that mans those branches. The same textual
separation of powers may work differently in a single-party government, as opposed
to a coalition government.
• In a coalition government, inter-party dialogue, despite strong intra-party
discipline, may prevent wholesome undermining of the legislature by the Prime
Minister.
• On the other hand, a strong party discipline, coupled with a single- party
majority may produce one of the most prominent ills of any constitutional
government – executive capture of legislature. Apart from the shared cabinet,
another proposal that aimed to prevent executive capture of legislature was
“opposition rights” in Parliament.
• Since the Constituent Assembly had already rejected the proposal for a shared
executive, it had endorsed the establishment of a majoritarian party government. This
meant that executive power will be concentrated in a party or parties having
legislative majority. In that case, a significant check on the party in power is another
party that strictly scrutinizes the work of the cabinet.
• Opposition prevents tyranny of concentrated power by making the public aware
and taking interest in government’s functioning.
• This is a limited understanding of opposition’s role, where it performs its function by
public awareness and questioning the government. However, this function is
dependent on the political influence of the opposition, not any substantial
constitutional power. Power sharing, on the other hand, goes beyond recognizing the
opposition’s influence; it concerns opposition rights and powers.
• The formal articulations of Union-state relationship are almost completely devoid of
an account of how parties may influence this separation. In reality, however, party
dynamics profoundly influence Union-State relationship, which may differ from state
to state depending on party dynamics.

Office of governor and party dynamics

• While the tenure of the Governor is controlled by the Union Government, given
her powers, a Governor can have an adversarial relationship with state
governments. Therefore, the position of the Governor is susceptible to party
dynamics. The Constituent Assembly debates dealing with the institution of the

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 Governor provide us a lens through which we can analyse the role of party
dynamics in Union-State relations in India.
• If opposing parties are ruling at Union and state levels, two problems may arise.
First, a Governor appointed by the party in power at the Centre, may not work
harmoniously with state governments formed by other parties.
• Second, for the central government to impose President’s rule in a state, the
Governor of that state must submit a report demonstrating constitutional
breakdown. The party in power at the centre may use the position of the
Governor to get adverse gubernatorial reports to dismiss state governments
manned by opposition parties.
• True to Chowdhury’s expectations, after the enactment of the Constitution, several
governors were appointed and removed on purely party lines. This became a subject
of a Supreme Court case in 2004, when the United Progressive Alliance (a coalition
government led by the Congress Party) dismissed four governors immediately after
winning general elections.
• In this case, the Supreme Court laid down certain restrictions on dismissal of
governors. An important restriction placed by the Court was that “[a] Governor cannot
be removed on the ground that he is out of sync with the policies and ideologies of the
Union Government or the party in power at the Centre.”
• Why should the party in power at the Centre not appoint a governor who is in
sync with its ideologies?

Anti Defection Laws

• In 1985, the 52nd amendment to the Constitution, passed unanimously by the
Parliament, recognized the institution of political parties in the form of “anti-
defection” provisions.
• As per this amendment, if a sitting legislator “voluntary gives up the membership of
the political party” on whose ticket she was elected, she “shall be” disqualified from
membership of the house.
• The amendment prohibited not only party switching, but also dissent against the party,
as the disqualification also triggered when a member failed to abide by “any
direction” of the party.
• The disqualification was accompanied by a few exceptions.

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• According to conventional understanding of the anti-defection amendment, although
the parties gained constitutional recognition, it was at best an indirect recognition, a
recognition for the purpose of implementing anti- defection amendment.
• There have been extensive debates on whether the anti-defection amendment is
desirable. The scholars who oppose the amendment argue that it prevents members
from exercising their freedom of changing opinions and perform their representative
duties.
• The anti-defection amendment was a response to a growing frequency of
defections by legislators, mainly at the state-level. Between 1967 and 1983, there
had been more than 2700 cases of defections, which brought down over 16 state
governments.
• The centralization of the party was facilitated by the already existing unitary
characteristics of the Constitution, embodied in “previously dormant constitutional
powers”.
• Wherever the federal parliament board could not impose its own decisions on the state
units of the Congress or the state governments, it imposed President’s rule under
Article 356 of the Constitution. President’s rule can be imposed under the advice of
the Governor of the state, who is required to submit a report under the Constitution
before President’s rule can be imposed. Thus, the Prime Minister and her council
acquire immense powers over state governments.
• The breakdown of the Congress’s internal institutions and the increasing number of
small regional parties called for a constitutional response. Hence came the anti-defec-
tion amendment. Whether the anti-defection amendment really proved to be a remedy
for the political problem that it aimed to solved, is a separate debate. Arguably, the
anti- defection amendment may have enhanced the power of party leaders, and may
have centralized power within parties.
• The anti-defection amendment makes faction leaders legislatively powerless unless
they have their own party. This may probably explain the burgeoning of regional
parties after the introduction of the anti-defection amendment at a pace faster than
before.

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Tenth Schedule

• As per the Tenth Schedule of the Constitution, inserted by the 52nd amendment, if a
sitting legislator “voluntary gives up the membership of the political party” on whose
ticket she was elected, she “shall be” disqualified from membership of the house.
• The amendment prohibits not only party switching or defections sensu stricto, but also
dissent against the party. This is because the amendment also enables disqualification
if a legislator votes (or even abstains to vote) contrary to “any direction issued by the
political party.”
• In a constitutional challenge to the anti-defection amendment, the Supreme Court
upheld the Tenth Schedule, except for the provision that barred judicial review of
defection-related disqualifications.181 While upholding the amendment, the Court
redefined the idea of representation in India.
• Irrespective of the part of the representation to which voters attach greater
significance – the candidate or the party – the Court legally entrenched the
assumption that voters choose parties, not candidates:
• 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.
• While voting on party-lines may very well have been the ground reality, prior to the
anti-defection amendment, it was not legally recognized. As we have discussed
earlier, the Indian Constitution and election law regime considered candidate as the
primary unit of representation.

• Party Politics

• Similarly, the amendment also transformed the concept of “party loyalty”, which
was earlier a matter of political negotiation, into a legal prerequisite.
• Although the original objective of the amendment was limited to preventing
unstable parliamentary majorities, the Supreme Court’s subsequent construction
of the amendment went much beyond the original purpose by legally mandating
intra-party discipline.

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 • In Vishwanathan, the Court defined the scope of “voluntarily giving up the
membership of the party” under paragraph 2(1)(a) of the Tenth Schedule. It held
that expulsion from a party, not being a voluntary act on the part of the legislator,
should not be considered defection. Yet, subsequent to the expulsion, a
legislator can neither disregard the whips issued by the party, nor join a new
party. Put differently, the party continues to exercise legal authority over the
legislator even after expelling the legislator from the party.
• In Ravi Nayak, the Supreme Court pronounced that to “voluntarily give up” the
membership of a party, a legislator need not formally resign from the party.
Whether she has voluntarily left the party could be inferred from her “conduct,
actions and speech”. In several cases, the Court has inferred defection when the
legislators were reported in the newspapers to have merely accompanied the
opposition party leaders.
• In other cases, members have been disqualified for “publicly denouncing” or
“openly criticising” the decisions of the party president. The broad interpretation
of the amendment in these cases has legally empowered party leadership over
individual legislators.

Exceptions

• To strike a balance between the need for stable governments and freedom of
legislators to dissent against the party, the Tenth Schedule recognized “split”
and “merger” as two exceptions to the disqualification. This means that a
member will not be disqualified even if the requirements under paragraph 2
are satisfied, provided that the member defects as a part of a “split” or a
“merger”.
• If one-third or more of the total elected legislators of a political party split
and form a separate party, or when at least two-thirds of the members of the
legislative party have agreed to merge their party with another, the legislators
involved in such split or merger will not be subjected to disqualification.
• This split exception made smaller states with fewer seats particularly vulnerable to
frequent defections. In the state of Goa, for instance, where there are only 40 seats
in total in the state legislature, a handful of legislators – six – could splinter easily
and establish a new party as demonstrated by the Ravi Nayak. For similar reasons,

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 the split exception made smaller parties with fewer legislators more vulnerable to
defections and fragmentation. Therefore, this exception was repealed in 2003.
• However, the repeal of this exception further concentrated power in the hands of
party leaders. After the repeal, even if bigger factions within a legislative party
defect or vote against the whip, they would be subjected to disqualification. In this
way, factions within parties lose important tools of political influence against the
party leaders. Put differently, the legislature ceases to be an outlet for intra-party
differences and factional disputes.
• Arguably, this centralization may have further fragmented the party system.
The concentration of power in party leaders may incentivize the leaders of
internal factions of the party to form new splinter parties before elections to
retain control over their factions after the election.

Kihoto Hollohan v. Zachillhu And Others (1992)

• The validity of this Schedule was challenged in the case of Kihoto Hollohan v.
Zachillhu And Others (1992). In this landmark judgment, the Supreme Court of
India upheld the validity of the 10th Schedule and addressed the following points
of contention-
• The 10th Schedule was challenged on the ground that the 52nd Amendment Act
that brought it about made changes in Chapter IV of Part V and Chapter V of Part
VI of the Constitution and thus it should require ratification by legislatures of at
least half the Indian states as given in Article 368(2).
• It was further contended that even if the Amendment Act did not attract Article
368(2), it took away the power of judicial review and could be struck down.
• Another primary question in this case that was addressed was whether the 10th
Schedule was violative of Article 105 and Article 194 and the rights within it.
According to subparagraph (1) of Paragraph 2, members were liable to be
disqualified in case they voted against what the party whip had directed. The
petitioner challenged this provision because disqualifying someone because of
their opposing views was violative of Articles 105 and 194 as well as freedom of
speech and expression as given in Article 19 of the Indian Constitution and
freedom of dissent and freedom of conscience.

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 • Finally, it was argued before the Apex Court that the power to decide
disqualifications could not be given to Chairmen or Speakers because they were
party nominees and were not obliged to give up party affiliations.
• The Supreme Court held that Article 368(2) was attracted for the 52nd
Amendment Act but simultaneously held that appointing the Speaker or Chairman
as adjudicator was justified. However, it also concluded that Paragraph 6 did not
exclude extraordinary jurisdiction of the Supreme and High courts as given in
Articles 136, 226, and 227.
• With regards to freedom of speech and expression, it was considered that in the
greater national interest, freedom could be curtailed.
• It is interesting to note that the dissenting judgment held the anti-defection law to
be unconstitutional and anticipated its use without neutrality by the appointed
adjudicators. The ominous judgment finds relevance, especially in today’s
political scenario.

Other Important Cases

• While courts are prevented from taking action in cases of disqualification by

defectors, recent years have seen judicial remedies as a response to inaction by the
Speaker or Chairman of a House.
• In the case of Keisham Meghachandra Singh v. the Hon’ble Speaker Manipur
(2020), the appellant was a Congress MLA who filed an appeal to the Supreme
Court after a petition to the High Court failed because courts do not have
jurisdiction over such cases. Applications for disqualification of a defecting MLA
was originally made to the Speaker of Manipur Legislative Assembly but after
their inaction, court petitions were filed.
• The High Court, however, observed that courts could not be prevented from
taking jurisdiction when all alternative remedies present in the 10th Schedule were
exhausted and the Speaker was deliberately not taking action.
• The Supreme Court, on appeal, held that because in the case of Rajendra Singh
Rana And Ors v. Swami Prasad Maurya And Ors. (2007), a Constitution bench
had set aside an Uttar Pradesh Speaker’s order based on them failing to exercise
appropriate jurisdiction, “failure to exercise jurisdiction” was now a recognised
stage when judicial intervention could take place.

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• At the same time, the bench made it clear that intervention, if any, could occur
only after the Speaker/Chairman had taken a decision and not during the time the
proceeding is ongoing.
• In the 2019 Karnataka MLA disqualification case, namely Shrimanth Balasaheb
Patil v. Hon’ble Speaker, Karnataka Legislative Assembly (2019), the Supreme
Court held that they did not appreciate petitions being directly filed in the top
court. Instead, petitions, if necessary, had to be first filed in the High Courts.
• The Supreme Court bench, in the 2020 case also made two other crucial
observations which will be discussed more in the next two sections-
• It first spoke about the need for an external mechanism to decide cases of
disqualification
• It also said that a Speaker/Chairman should decide cases of disqualification within
three months and asked the Speaker of Manipur Legislative Assembly to decide
the case within the next four weeks.
• The Supreme Court through multiple cases has asked the central government to
amend the Constitution and prevent the Speaker from acting on partisan lines and
acting in an undemocratic manner. Such observations were made in the Keisham
case as well as the Karnataka MLA disqualification case. The same could be done
by taking away the power of the Speaker to decide these cases and creating a
separate permanent tribunal that would function for this purpose.
• Justice Nariman, while writing the Keisham judgment, questioned the
feasibility of putting the onus on the Speaker to objectively decide on
disqualification cases, especially in a country where party politics are often
the deciding factor in everything. The judgment stated that only “swift and
impartial disqualifications” would give real “teeth” to the 10th Schedule and
that could be achieved by placing this jurisdiction beyond someone who
remains part of a political party either de jure or de facto.
• Party affiliations often prevent the Speakers from taking prompt decisions,
especially if the impugned member defected to a party to which the Speaker
themselves belonged. This completely makes the purpose of the 10th Schedule
useless.

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 • In S.A. Sampath Kumar v. Kale Yadaiah (2016), a reference was made to a
Constitutional Bench to decide on whether Courts could direct the Speakers to
decide cases of disqualification within a fixed time frame.
• However, Justice Nariman in the 2020 case stated that the reference was not
required and went on to prescribe a time limit of three months, saying that
Speakers should try to decide the cases within a “reasonable period”.

Case Laws

Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412

1. In this situation, many applications were heard at the same time.
2. In the case of Kihota Hollohon v. Zachilhu and Ors1., the validity of the Tenth
Schedule established by the Constitution (Fifty Second Amendment) Act, 1985 was
questioned. The Constitution (Fifty-second Amendment) Act replaced four articles of
the Constitution with the tenth schedule, namely 101(3)(a), 102(2), 190(3)(a).
3. In a 3:2 decision, the Supreme Court confirmed the Anti-Defection Law's
constitutional constitutionality. The majority was made up of Justices M.N.
Venkatachaliah, K.J. Reddy, and S.C. Agrawal, while the minority was made up of
Justices L.M. Sharma and J.S. Verma.
4. At the same time, the Supreme Court determined that the speaker's orders under the
legislation prohibiting an MLA from serving due to defection are subject to Judicial
Review.
1. Is it true that the Speaker should have such broad powers only if there is always a
reasonable chance of prejudice?
2. Are the modifications to the 52nd Amendment constitutionally valid?
3. Whether or not Judicial Review is available before a decision is made by the
Speaker/Chairman.
4. Does Judicial Review apply to the Rules outlined in the tenth schedule?
1. In the case of Kihoto Hollohan vs. Zachillhu, it was contended that the anti-defection
law is incompatible with freedom of speech, dissent, and conscience. The Supreme
Court concluded that the statute is intended to handle unprincipled defections that are
not protected by freedom of conscience, right to dissent, or intellectual liberty. As a
result, while this rule has certain unintended implications, it is vital in today's world
when dealing with political issues. The decision in Kihoto Hollohon vs. Zachillhu and

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 others addresses a few questions and problems raised by this law. The court
subsequently decided that the law did not violate any free speech rights or the
parliamentary popular government's essential structure.
2. The court emphasized that the managing official is the lone person with authority over
the selection, and that the final decision is contingent on legal audit once the selection
is defined and affected.
3. "It was held in the case of Ravi S Naik v. Union of India2 that "deliberately
abandoning membership has greater significance." A conclusion can also be made
from the member's regulation that he has voluntarily renounced his party
membership." The Court rejected the argument that failing to comply with the
disqualification conditions constituted a violation of constitutional obligations.
Elevating norms to the status of constitutional provisions, they believed, should be
disallowed. The disqualification rules were devised by the Speaker in the exercise of
his responsibilities under Article VIII of the Constitution, hence they cannot be
compared to constitutional regulations.
 The purpose of this case comment I have to make is to reflect the viewpoint expressed
by the Supreme Court Judges in this case -
 As a law student, I have to advise that Article 105(2), which deals with the privileges
granted to Members of Parliament, isn't absolute in nature, as was also stated in the
National Commission for Constitutional Review's report in 2002, which
recommended that Article 105(2) be revised.
 Second, notwithstanding the immunity granted to a member of the house, political
desertion for the sake of power and money allurement is suggestive of corrupt
activity.

Analysing the Parties' Arguments Critically:

 The difference between 'defection' and' split' in the Tenth Schedule was so thin and
artificial that the differences on which the distinction was based were devoid of logic,
according to lawyers for petitioners. Upholding the counsel's argument, the Court
explained that the rule for exemption of split is justified in terms of the maximum
amount as 1/3rd members at the same time cannot be driven by dishonest
intentions, citing H.M. Seervai's opinion: "Normally, governments aren't toppled by
a small number of defections, but by an outsized number of members of a celebration
leaving it and/or going over to the party to which they have been opposed."

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 • Another key point raised by the petitioners is that the 'finality clause' in paragraph 6 of
the Tenth Schedule limits the court's jurisdiction, making the speaker immune from
Judicial Review. The majority in this case found that the Tribunal is the
Speaker/Chairman under Paragraph 6(1) of the Tenth Schedule, and that the finality
clause does not obliterate, but rather limits, the courts' authority under Arts. 136, 226
and 227.
 The essential creation of the "finality clause" offered a method for the majority
to reach a decision, stating that the choice of the Chairman or, as the case may
be, the Speaker of the House, is not conclusive.

Anti-defection legislation has a number of advantages.

 Corruption: The law aims to avoid political defections that may be motivated by a
desire to satisfy the political masters of power, as well as circumstances that function
as a deterrent to political bribes.
 Political Certainty: Because of the ongoing trend of coalition administrations, the
defection of a few MLAs/MPs might lead to the fall of a government due to personal
malice and avarice.
 Party Policy: If these candidates are elected, political decorum dictates that they
follow the party's policies and promote the party's agenda rather than siding with the
opposition.
 Anti-defection laws have a number of drawbacks.
 The Anti-Defection Law is blatantly anti-legislative freedom of speech and
expression: The anti-defection statute infringes on this right by requiring all members
to vote in precise accordance with Party Policy and to concur completely with party
whips. This takes away a legislator's ability to vote according to his or her conscience.
 It also inhibits disagreement against the party's positions and policies, unless it is done
through an all-party forum.
 Prohibition of dissent may jeopardize Parliament's ability to serve as an effective
check on the administration. This might put the government's accountability in
jeopardy.
 Legislators are no longer accountable to the people: Legislators can now say that they
voted a certain way because their political party forced them to. Their rationale is
frequently that they have little control over their vote and hence should not be in
command of it.

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  4. After thoroughly analyzing the rationale, I can conclude from the case that voting
dissent has long been regarded as a sign of political turbulence and lack of
cohesion. Every political party, without a doubt, would appreciate steadfast support
for the current mandate. The Member's commitment to the party is demonstrated by
the fact that he or she must follow the Whip's directives.
 He/she could not, however, overlook the interests of his constituency in order to
balance his/her interests. It is incorrect to consider such behavior to be disloyal to the
party or to have a negative impact on the party's cohesion. Members of the same
political party may openly hold conflicting views on a given issue, and expressing
those views may result in the revision or withdrawal of proposals under consideration.
Such a result can only be attained if members express objection. Intra-party dissent
and dialogues, both necessary components of intra-party democracy, are contingent on
the leaders' willingness to allow members to express themselves.

Minority Point of View:

 The Speaker's tenure as the authority to decide this disagreement under the Tenth
Schedule is conditional on the House's ongoing support, hence he does not fit the
qualification for such an independent adjudicatory power.
 3. It was also determined that paragraph 6 of the Tenth Schedule does not create a
non-justiciable zone. The Speaker/power Chairman's to resolve disagreements can
also be viewed as judicial.
 4. The Election Commission took a similar approach, based on the views of
Justices L.M. Sharma and J.S. Verma. In 1977, it made recommendations and
suggested that defection-related disqualifications be referred to the Election
Commission for an opinion to be extended to the President or Governor, as the case
may be, and that the President or Governor act on the Election Commission's similar
opinion, as was the case with other disqualifications related to articles 102 and 191 of
the constitution.
 To summarize, the Hon'ble Supreme Court maintained the constitutional legality
of the Anti-Defection Law in a 3:2 decision. The majority was made up of Justices
M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal, while the minority was made up
of Justices L.M. Sharma and J.S. Verma.

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Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270
 In 2003, 13 MLAs from the Bahujan Samaj Party (BSP) supported the bid made by
Mulayam Singh Yadav, founder of the Samajwadi Party, to form the U.P. Government.
Swami Prasad Maurya, the leader of the BSP filed a petition with the Speaker for the
disqualification of these 13 MLAs. The Speaker rejected the petition, accepting the
argument that there was a split in the BSP, and did not disqualify the MLAs.
 Mr. Maurya challenged the decision in the SC in 2006. A 5-Judge Constitution Bench
held that the 13 MLAs voluntarily gave up their membership and were disqualified, as
they had written a letter to Governor T.V. Rajeswar requesting him to invite the
Samajwadi Party to form the government. The Court held that the disqualification
would be said to have taken place the moment the members commit the act of
defection. They further held that the Speaker could not initiate disqualification
proceedings suo moto, and would have to be approached with a petition first.
 Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270
 This case expanded the meaning of the term ‘voluntarily gives up the membership’
under the grounds for disqualification for the defection. It was stated that when an
elected member of any political party gives a letter to the governor mentioning him to
call upon the pioneer of the opposite party, then they are assumed to have deliberately
surrendered the membership of the original party of which they were a part.
 Further, it also emphasized upon the power of ‘judicial review’ with the judiciary
which unless otherwise stated, would be valid on any decision passed by the
legislative member.

Ravi S. Naik v Union of India

 in December 1990, two MLAs in Goa from the Maharashtrawadi Gomantak Party
(MGP), Sanjay Bandekar and Ratnakar Chopdekar, were approached to join the
Congress Democratic Front. The MGP however, was already a part of a coalition
called the Progressive Democratic Front (PDF). The leader of the PDF, Ramakant
Khalap, filed two separate petitions with the Speaker calling for the disqualification of
these two members on the grounds of defection. The Bombay High Court passed a
stay order on the disqualification proceedings. However, the Speaker disqualified both
MLAs despite the stay, stating that the order did not apply as per the Tenth Schedule.

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  The Speaker’s decision was challenged and eventually heard by a 2-Judge Bench of
the SC. The Tenth Schedule states that a member may be disqualified if they
‘voluntarily’ give up their membership. The Court held that the Speaker could decide
that a member had voluntarily given up their membership based on their conduct,
even without a formal resignation. However, the Court held the Speaker’s decision to
disqualify the members after the HC passed a stay order to be unlawful and quashed
the Speaker’s decision.

Shrimanth Balasaheb Patil v Hon'ble Speaker, Karnataka Legislative Assembly

 In July 2019, 13 MLAs from the Congress and the Janata Dal (Secular), who had
allied to form the majority, submitted their resignation to the Speaker of the Karnataka
State Legislative Assembly. This would result in the Bharatiya Janata Party forming
the majority by 1 seat. The leaders from the Congress party approached the Speaker
seeking the disqualification of the rebel MLAs, arguing that they had defected from
their parties. The Speaker disqualified the members till the end of the term and barred
them from contesting in elections during this time. He stated that they were
attempting to avoid disqualification proceedings by tendering their resignation.
 The rebel MLAs challenged the Speaker’s decision at the SC. In November 2019, a 3-
Judge Bench of the Court upheld the Speakers decision and stated that disqualification
proceedings would not be affected by the member submitting their resignation after
the act of disqualification had been committed. However, the Court additionally held
that the Speaker did not possess the power to specify a period of time for the
disqualification, nor did they have the power to bar a member from contesting in
elections.

Kesham Meghachandra Singh v. Hon’ble Speaker Manipur,

MANU/SC/0062/2020
 This is one of the very recent judgments criticizing the existing anti-defection laws
stated in the Tenth Schedule. Justice Nariman pointed out that the anti-defection laws
were toothless tigers in modern times with the entire power being concentrated in the
hands of the chairperson to disqualify any person. This could be highly discretionary
in nature because the speaker will have an inclination towards their political party
either de jure or de facto.

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 As a result, he suggested that there should be an external mechanism that should deal
with the cases of defection by the elected members. This would firstly ensure that
there is no possibility of any form of bias or impartiality and secondly, it could
provide a fair opportunity to the alleged defector to represent their case.
 11th Manipur Legislative Assembly was conducted in March, 2017.
 The said Assembly election produced an inconclusive result as none of the political
parties were able to secure a majority i.e. 31 seats in a Legislative Assembly of 60
seats in order to form the Government.
 The Indian National Congress (hereinafter referred to as “Congress Party”) emerged
as the single largest party with 28 seats, the Bharatiya Janata Party (hereinafter
referred to as “BJP”) coming second with 21 seats. The Respondent No.3, in the Civil
Appeal arising out of SLP(C) No. 18659 of 2019, contested as a candidate nominated
and set up by the Congress Party and was duly elected as such. On 12.03.2017,
immediately after the declaration of the results, Respondent No.3 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. On 15.03.2017, the Governor invited the group lead
by the BJP to form the Government in the State. On the same day, the Chief Minister-
Designate sent a letter to the Governor for administering oath as Ministers to eight
elected MLAs including Respondent No.3. On the same day, Respondent No.3 was
sworn in as a Minister in the BJP-led government and continues as such till date.
 Since no action was taken on any of these petitions by the Speaker, one T.N. Haokip
filed a writ petition being Writ Petition (C) No.353 of 2017 before the High Court of
Manipur at Imphal, in which the Petitioner prayed that the High Court direct the
Speaker to decide his disqualification petition within a reasonable time.
 On 08.09.2017, the High Court stated that as the issue of whether a High Court can
direct a Speaker to decide a disqualification petition within a certain timeframe is
pending before a Bench of 5 Hon’ble Judges of the Supreme Court the High Court
cannot pass any order in the matter, and the matter was ordered to be listed so as to
await the outcome of the cases pending before the Supreme Court.
• We finally come to the latest judgement given by a three-Judge bench of the Supreme
Court headed by Justice F.Nariman on 21st January 2020. The facts of the case were
as follows- petitions for disqualification on grounds of defection of about 13 MLAs
were pending before the Speaker of the Manipur Legislative Assembly and no action
was taken by him on and the matter was kept pending. Owing to this, the petitioner

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 filed a writ petition with the High Court of Manipur in which the petitioner prayed
that the High Court issue an order directing the Speaker to decide the disqualification
petitions within a reasonable time.
• On the issue of whether Courts have the power to issue such an order was in
itself pending before a five-judge constitution bench of the Supreme Court and
hence the High Court concluded that it could not pass any order on the matter,
due to which the petitioner appealed to the Supreme Court.
• The Hon’ble Court held that what was meant to be outside the purview of judicial
review as per Kihoto judgement are only quia timet actions in the sense of injunctions
to prevent the Speaker from making a decision on the ground of irreparable
consequences meaning that if the Speaker was to decide that the Member be
disqualified, and as a consequence, if he would incur the penalty of forfeiting his
membership of the House for a long period, the Court may intervene as such a result
is undesirable. This does not, therefore, in any way prohibit judicial review which is
essentially in aid of the Speaker arriving at a prompt decision as to disqualification.
The Speaker, acting as a Tribunal, was bound to decide such petitions within a
reasonable period. In furtherance of the same, the Hon’ble Court said that a petition of
disqualification filed with the Speaker must be decided within a maximum of three
months, except for the existence of exceptional circumstances that hold good reason.
 The Court while deciding the matter, also stated that the fears of the minority
judgement in the Kihoto Hollohan’s case (as mentioned above) had actually come
home to roost to the effect that the impartial and unbiased position required of the
Speaker was decreasingly so. It held that the question of whether disqualification
petitions ought to be entrusted to a Speaker as a quasi-judicial authority while he de
facto continues to belong to a particular political party needs to be reconsidered, and
the Hon’ble Court suggested that the Parliament consider amending the Constitution
to substitute the Speaker as the arbiter with a permanent Tribunal headed by a retired
Supreme Court Judge or a retired Chief Justice of a High Court, to decide such
disputes more swiftly and impartially. This, they emphasised, would give real teeth to
the provisions contained in the Tenth Schedule and its vital role in the bonafide
functioning of our democracy.
 Furthermore, no maximum time period is allotted within which the question must be
decided. It is after the exhaustion of this remedy that a judicial review of the High
Court is viable. This loophole has repeatedly been exploited by Speakers. In the

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 Manipur crisis, the Speaker did not attend to the question of disqualification of
members for two and a half years. In fact, on pleading before the High Court, the
Speaker cited his power of discretion as granted by paragraph 6. However, the
Supreme Court held that,
 These discrepancies in the Xth Schedule must be removed. The Supreme Court has
asked Parliament to rethink the quasi-judicial authority of the Speaker under
paragraph 6 when he continues to belong to a particular political party. The Supreme
Court has also suggested the setting up of a “permanent tribunal headed by a retired
Supreme Court Judge or a retired Chief Justice of a High Court”[12] or any other
independent body that Parliament may deem fit to decide questions arising under
the X Schedule.

Conclusion
 Position of the Speaker is therefore peculiar. He enjoys absolute power to decide the
fate but is completely powerless to actually provide a practical solution. He has
unbridled power to decide on the question of disqualification of an impugned member
but is rendered rather helpless when the said member employs legal loopholes to get
re-elected.
 To keep a check on absolute power of the Speaker and for complete disposal of this
issue, an independent adjudicating body headed by a retired Supreme Court Judge or a
retired Chief Justice of a High Court needs to be established as per the suggestion of
the Supreme Court.
 Such an independent adjudicating body must also be empowered to bar members
disqualified under X Schedule from contesting by-elections till the life of the House.
This would ensure that the disqualified members do not relay back into the House
with the ticket of the party they had defected to thus, making a complete mockery of
the system. mechanism must also be put in place to limit the time period within
which any question arising as to the disqualification of the member is decided. This in
turn would result in effective application of the anti-defection law.

Disqualification Proceedings Against Maharashtra MLAs

 On November 28th, 2019, Mr. Uddhav Thackeray of the Shiv Sena, heading the Maha
Vikas Aghadi (MVA) alliance with the Congress and Nationalist Congress Party
(NCP), was sworn in as Chief Minister of Maharashtra. A month before, on October

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 24th, 2019, the BJP-Shiv Sena Alliance had won the Assembly Elections. A power
sharing conflict—including a demand for rotational Chief Ministership and more
cabinet berths—arose between the BJP and Shiv Sena, which ultimately led to the
breaking of the alliance. On November 22nd, the the NCP-Sena-Congress parties
announced their new alliance, with Mr. Thackeray as their Chief Ministerial
candidate.
 On June 27th, 2021, NCP chief Sharad Pawar had confidently proclaimed that ‘the
(MVA) government is running smoothly and… (he had) no doubt that this
government will last for all five years’. A year later, the state of the MVA alliance was
far from stable. On June 10th, 2022, BJP won three of the six Rajya Sabha seats in
Maharashtra, delivering the first blow to the MVA alliance. Ten days later (June 20th,
2022) the BJP won five out of ten seats in the Maharashtra Council polls. As former
Chief Minister Devendra Fadnavis pointed out, this was the ‘beginning of change’ in
the Maharashtra political landscape.
 Power struggles within the Shiv Sena came to the forefront on the day after the
Maharashtra Council polls results were released. On June 21st, Mr. Eknath Shinde
went missing along with a number of Shiv Sena MLAs. Many reportedly took
residence in Surat, Gujarat and later travelled to Gauhati, Assam. On the same day,
Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs
refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party
leader, later approved by the Deputy Speaker of the Maharashtra Legislative
Assembly, Mr. Narhari Zirwal.
 Mr. Shinde responded claiming that he had the support of over 40 MLAs, and
represented a significant portion of the party. He further said that with a dwindling
group of supporters, Mr. Thackeray was no longer the party’s chosen representative.
 On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin
disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath
Shinde, for defecting from the Shiv Sena. On the same day, two independent
MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal
through an anonymous email, to remove him from his position. The Deputy
Speaker rejected the motion as an unauthorised email lacked authenticity, and issued
disqualification proceedings against the rebel MLAs. The Deputy Speaker gave the
Shinde faction two days to respond to the disqualification notice.

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 The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the
disqualification proceedings before the Supreme Court on two grounds. First, they
argued that the email resolution to remove Deputy Speaker Narhari Zirwal was moved
before the disqualification proceedings were initiated—the motion passed by Mr.
Zirwal had no bearing. Second, they argued that a minimum of seven days must be
given to respond to the disqualification notice—the rebel MLAs were given two.
 On June 27th, 2022, a Vacation Bench of the Supreme Court comprising
Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the
rebel Shiv Sena MLAs 12 days of ‘breathing time’ to respond to the disqualification
notice issued on June 25th by the Deputy Speaker. The Court’s intervention was
unexpected. Usually, the Court does not intervene in ongoing proceedings of the
House and waits for the Speaker’s decision, which it may later review.
 On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra Mr.
Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to
conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged
by the Thackeray faction in the Supreme Court. After four hours of arguments, on
June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister
Uddhav Thackeray resigned within the hour, following the SC’s refusal to stay the
floor test.
 The Court heard the initial challenge against the disqualification proceedings on July
20th, 2022. A 3-Judge Bench comprising Chief Justice N.V. Ramana and
Justices Krishna Murari and Hima Kohliheard arguments from Senior Advocates
Kapil Sibal and Dr. Abhishek Manu Singhvi for the Thackeray camp of the Shiv Sena
and Senior Advocates Harish Salve, Mahesh Jethmalani and Solicitor General Tushar
Mehta, for Mr. Eknath Shinde and the rebel MLAs.
 The Shinde faction argued that they never defected from the Shiv Sena—they merely
chose a different leader for themselves. The Tenth Schedule of the Constitution of
India, 1950, which deals with defection of members of the legislature from their
political party, would not apply to this present case.
 The Thackeray faction argued that the Shinde faction’s actions—disregard for the
party Whip, appointment of a new Deputy Speaker, call for floor test, and insistence
of the Shinde faction’s majority—were all acts of defection. An exception under Para
3 of the Tenth Schedule once stated that splitting within a party with a minimum of
one-third of the party members was not defection. However, this exception was

164
 repealed in 2003 through the Constitution (Ninety-First Amendment) Act. The Shinde
faction, therefore, no longer enjoyed the protection of the Tenth Schedule. The Bench
expressed concern that there was no clarity on how the Tenth Schedule of
the Constitution of India, 1950 would apply to this present case.
 On September 6th, 2022 the SC announced that the case would be decided by a 5-
Judge Constitution Bench led by Justice D.Y. Chandrachud and comprising
Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha.
 Before making substantial arguments, the Thackeray faction submitted that the
Constitution Bench Judgement in Nabam Rebia v Deputy Speaker (2016) required
reconsideration by a 7-Judge Bench. The Judgement bars the Speaker from
considering disqualification petitions in the House while they are facing removal. The
Thackeray faction claimed that this allows members of the House to ‘paralyse’ and
curb the Speakers’ powers.
 On February 17th, 2023 the Bench decided not to immediately refer the case to a 7-
Judge Bench. The Bench clarified that they may refer the case after hearing
substantial arguments in the case.
 On March 16th, 2023, the CJI Chandrachud-led Constitution Bench reserved
Judgement in the case.
 On May 11th, 2023, the Constitution Bench held that the Governor had no objective
material to call for a floor test. Further, it stated the speaker would decide whether the
Eknath Shinde faction had defected from the Shiv Sena.
 On July 4th, 2023, Sunil Prabhu, a leader from the Thackeray faction, filed a plea in
the Supreme Court to direct the Speaker of the Maharashtra Legislative Assembly to
decide on the disqualification of members in the Eknath Shinde faction.

Nabam Rebia v. Deputy Speaker, AIR 2016 SC 3209

 On July 13th 2016, a five-judge Bench of the Supreme Court comprising Justices J.S.
Khehar, Dipak Misra, M.B. Lokur, P.C. Ghose and N.V.
Ramana unanimously held that the Governor’s powers to summon, dissolve and
advance a session is within the scope of judicial review. Justice Khehar wrote the
majority opinion on behalf of Justices P.C. Ghose and N.V. Ramana. Justices Dipak
Misra and M.B. Lokur wrote separate concurring opinions.

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 In November 2015, a constitutional crisis arose in Arunachal Pradesh when 21
Congress MLAs rebelled against Chief Minister Nabam Tuki. On November
19th2015, 13 members of the Assembly—11 BJP MLAs and 2 Independent MLAs—
sent a letter to the Governor to communicate their displeasure with the Speaker and
the Government. Furthermore, 21 Congress MLAs also refused to attend party
meetings citing mismanagement by the Chief Minister. They alleged that the Chief
Minister had grossly misused funds and indulged in wasteful expenditure.
 The Governor acting without the advice of the Chief Minister, advanced the
Assembly session from January 14th 2016 to December 16th 2015 and listed the
removal of the Speaker on the legislative agenda. On December 15th 2015, the
Speaker, Nabam Rebia, preemptively disqualified the rebel MLAs on the grounds of
defection before the Assembly could meet. On December 16th, 2015, the resolution to
remove Speaker Nabam Rebia was adopted.
 Speaker Rebia challenged this dismissal in the Gauhati High Court. The High Court
on January 5th, 2016 stayed the disqualification of Congress MLAs and dismissed the
Speaker’s plea. Subsequently, an appeal was filed before the Supreme Court and the
matter was listed before a 5-Judge Bench.
 The Court identified two broad issues. First, was the Governor’s decision to advance
the Assembly session constitutional? Second, could the Speaker disqualify MLAs
while a motion for his removal was pending before the House?
 Article 163 of the Constitution requires the Governor of a State to act in consultation
with the Council of Ministers in the exercise of his functions. He can act at his
discretion only when he is required to. Speaker Rebiaargued that even if the Governor
has discretion, it should be understood as ‘constitutional’ discretion. Whereas the
Deputy Speaker submitted that the Governor’s discretion was absolute and beyond
judicial review. The Court confirmed that the Governor does not enjoy broad
discretionary powers and is always subject to constitutional standards.
 Article 174 confers the Governor with the power to summon, prorogue or dissolve the
legislature of the State. The Court considered whether the Governor must exercise this
power at his discretion or in consultation with the Council of Ministers. The Court
concluded that the Governor’s discretion did not extend to the powers conferred under
Article 174. Hence, he could not summon the House, determine its legislative agenda
or address the legislative assembly without consultation.

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  Next, the Court considered whether the Speaker may disqualify rebel MLAs while a
motion to remove him was pending in the House. Article 179(c) of the Constitution
provides that a Speaker may be removed from office by a resolution of the Assembly
passed ‘by a majority of all the then members.’ Significantly the Constituent
Assembly debates reveal that the phrase ‘all the then members’ was preferred to
‘members present and voting’ as it was precise. Hence, the Court concluded that
Speaker Rebia’s decision to disqualify rebel MLAs was an attempt to overcome
voting by ‘all the then members’ and evade disqualification.
 On January 6th 2016, while the matter was being argued before the Court, the Union
government dismissed the ruling State government and imposed President’s rule. For
the first time in its history, the Court effectively nullified the President’s rule and
restored the previous State government with Nabam Tuki as Chief Minister. However,
Chief Minister Tuki was soon voted out of power in a floor test and the Court’s
decision was reversed through political means.

Disqualification Proceedings Against Maharashtra MLAs

 On November 28th, 2019, Mr. Uddhav Thackeray of the Shiv Sena, heading the Maha
Vikas Aghadi (MVA) alliance with the Congress and Nationalist Congress Party
(NCP), was sworn in as Chief Minister of Maharashtra. A month before, on October
24th, 2019, the BJP-Shiv Sena Alliance had won the Assembly Elections. A power
sharing conflict—including a demand for rotational Chief Ministership and more
cabinet berths—arose between the BJP and Shiv Sena, which ultimately led to the
breaking of the alliance. On November 22nd, the the NCP-Sena-Congress parties
announced their new alliance, with Mr. Thackeray as their Chief Ministerial
candidate.
 On June 27th, 2021, NCP chief Sharad Pawar had confidently proclaimed that ‘the
(MVA) government is running smoothly and… (he had) no doubt that this
government will last for all five years’. A year later, the state of the MVA alliance
was far from stable. On June 10th, 2022, BJP won three of the six Rajya Sabha seats
in Maharashtra, delivering the first blow to the MVA alliance. Ten days later (June
20th, 2022) the BJP won five out of ten seats in the Maharashtra Council polls. As
former Chief Minister Devendra Fadnavis pointed out, this was the ‘beginning of
change’ in the Maharashtra political landscape.

167
 Power struggles within the Shiv Sena came to the forefront on the day after the
Maharashtra Council polls results were released. On June 21st, Mr. Eknath Shinde
went missing along with a number of Shiv Sena MLAs. Many reportedly took
residence in Surat, Gujarat and later travelled to Gauhati, Assam. On the same day,
Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs
refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party
leader, later approved by the Deputy Speaker of the Maharashtra Legislative
Assembly, Mr. Narhari Zirwal.
 Mr. Shinde responded claiming that he had the support of over 40 MLAs, and
represented a significant portion of the party. He further said that with a dwindling
group of supporters, Mr. Thackeray was no longer the party’s chosen representative.
 On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin
disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath
Shinde, for defecting from the Shiv Sena. On the same day, two independent
MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal
through an anonymous email, to remove him from his position. The Deputy
Speaker rejected the motion as an unauthorised email lacked authenticity, and issued
disqualification proceedings against the rebel MLAs. The Deputy Speaker gave the
Shinde faction two days to respond to the disqualification notice.
 The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the
disqualification proceedings before the Supreme Court on two grounds. First, they
argued that the email resolution to remove Deputy Speaker Narhari Zirwal was moved
before the disqualification proceedings were initiated—the motion passed by Mr.
Zirwal had no bearing. Second, they argued that a minimum of seven days must be
given to respond to the disqualification notice—the rebel MLAs were given two.
 On June 27th, 2022, a Vacation Bench of the Supreme Court comprising
Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the
rebel Shiv Sena MLAs 12 days of ‘breathing time’ to respond to the disqualification
notice issued on June 25th by the Deputy Speaker. The Court’s intervention was
unexpected. Usually, the Court does not intervene in ongoing proceedings of the
House and waits for the Speaker’s decision, which it may later review.
 On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra Mr.
Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to
conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged

168
 by the Thackeray faction in the Supreme Court. After four hours of arguments, on
June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister
UddhavThackeray resigned within the hour, following the SC’s refusal to stay the
floor test.
 The Court heard the initial challenge against the disqualification proceedings on July
20th, 2022. A 3-Judge Bench comprising Chief Justice N.V. Ramana and
Justices Krishna Murari and Hima Kohliheard arguments from Senior Advocates
Kapil Sibal and Dr.Abhishek Manu Singhvi for the Thackeray camp of the Shiv Sena
and Senior Advocates Harish Salve, Mahesh Jethmalani and Solicitor General Tushar
Mehta, for Mr. Eknath Shinde and the rebel MLAs.
 The Shinde faction argued that they never defected from the Shiv Sena—they merely
chose a different leader for themselves. The Tenth Schedule of the Constitution of
India, 1950, which deals with defection of members of the legislature from their
political party, would not apply to this present case.
 The Thackeray faction argued that the Shinde faction’s actions—disregard for the
party Whip, appointment of a new Deputy Speaker, call for floor test, and insistence
of the Shinde faction’s majority—were all acts of defection. An exception under Para
3 of the Tenth Schedule once stated that splitting within a party with a minimum of
one-third of the party members was not defection. However, this exception was
repealed in 2003 through the Constitution (Ninety-First Amendment) Act. The Shinde
faction, therefore, no longer enjoyed the protection of the Tenth Schedule. The Bench
expressed concern that there was no clarity on how the Tenth Schedule of
the Constitution of India, 1950 would apply to this present case.
 On September 6th, 2022 the SC announced that the case would be decided by a 5-
Judge Constitution Bench led by Justice D.Y. Chandrachud and comprising
Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha.
 Before making substantial arguments, the Thackeray faction submitted that the
Constitution Bench Judgement in Nabam Rebia v Deputy Speaker (2016) required
reconsideration by a 7-Judge Bench. The Judgement bars the Speaker from
considering disqualification petitions in the House while they are facing removal. The
Thackeray faction claimed that this allows members of the House to ‘paralyse’ and
curb the Speakers’ powers.

169
  On February 17th, 2023 the Bench decided not to immediately refer the case to a 7-
Judge Bench. The Bench clarified that they may refer the case after hearing
substantial arguments in the case.
 On March 16th, 2023, the CJI Chandrachud-led Constitution Bench reserved
Judgement in the case.
 On May 11th, 2023, the Constitution Bench held that the Governor had no objective
material to call for a floor test. Further, it stated the speaker would decide whether the
Eknath Shinde faction had defected from the Shiv Sena.
 On July 4th, 2023, Sunil Prabhu, a leader from the Thackeray faction, filed a plea in
the Supreme Court to direct the Speaker of the Maharashtra Legislative Assembly to
decide on the disqualification of members in the Eknath Shinde faction.

Subhash Desai v Principal Secretary, Governor of Maharashtra

 In Subhash Desai v Principal Secretary, Governor of Maharashtra (2023) the

Supreme Court was deciding a slew of issues that resulted from a rift between the
Thackeray and Shinde factions of the Shiv Sena Party in Maharashtra. On 21 June
2022, 34 MLAs belonging to the Shinde faction issued a notice to the Deputy
Speaker, who was acting in place of the Speaker of the House, stating that he no
longer enjoyed their support and calling upon him to move a motion for his removal.
On 25 June 2022, the Deputy Speaker issued notices against Eknath Shinde and 15
Shinde-faction MLAs for allegedly defecting from the Shiv Sena party.
 On 27 June 2022, the Shinde faction moved the Court for a stay on their
disqualification proceedings arguing that a Speaker who themselves were undergoing
removal proceedings could not initiate disqualification proceedings.
 The Shinde Faction relied on the 2016 decision in Nabam Rebia v Deputy
Speaker (2016), where a five-judge Constitution Bench had held that the Speaker
could not conduct disqualification proceedings while a motion for their removal was
pending before the House.

Reconsideration of the Nabam Rebia decision

 In Subash Desai, Thackeray faction countered that the decision in NabamRebia was
wrong. They contended that defecting MLAs would misuse the judgement to avoid
disqualification proceedings against them, by tying the hands of the speaker simply by

170
 issuing a notice of intent to move a resolution for their removal. They urged the Court
to form a seven-judge Constitution Bench to reconsider the decision.
 On the contrary, the Shinde faction of the Shiv Sena lent their support to the Nabam
Rebia judgement. They argued that there is no substantial question of law that needs
clarification. They submitted that the Speaker despite being disqualified remains the
member of the House and could be re-elected. However, no such remedy of being re-
elected or continuing being a member of the House is available to a disqualified
MLA.
 On 11 May 2023, in its judgement, a Constitution Bench comprising Chief
Justice D.Y. Chandrachudand Justices M.R. Shah, Krishna Murari, Hima
Kohli and P.S. Narsimha referred the Nabam Rebia decision to be reconsidered by a
seven-judge Constitution Bench of the Court. The judgement identified the substantial
question of law as follows:
 “Whether the issuance of a notice of intention to move a resolution for the removal of
the Speaker restrains them from adjudicating disqualification petitions under the
Tenth Schedule of the Constitution.”
 On 12 October 2023, a Bench comprising CJI Chandrachud with Justices S. K.
Kaul, Sanjiv Khanna, B. R. Gavai, Surya Kant, J. B. Pardiwala, and Manoj Misra,
decided to hear the matter in the second week of March 2024.
 On September 6th, 2022 the SC announced that the case would be decided by a 5-
Judge Constitution Bench led by Justice D.Y. Chandrachud and comprising
Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha.
 Before making substantial arguments, the Thackeray faction submitted that the
Constitution Bench Judgement in Nabam Rebia v Deputy Speaker (2016) required
reconsideration by a 7-Judge Bench. The Judgement bars the Speaker from
considering disqualification petitions in the House while they are facing removal. The
Thackeray faction claimed that this allows members of the House to ‘paralyse’ and
curb the Speakers’ powers.
 On February 17th, 2023 the Bench decided not to immediately refer the case to a 7-
Judge Bench. The Bench clarified that they may refer the case after hearing
substantial arguments in the case.
 On March 16th, 2023, the CJI Chandrachud-led Constitution Bench reserved
Judgement in the case.

171
  On May 11th, 2023, the Constitution Bench held that the Governor had no objective
material to call for a floor test. Further, it stated the speaker would decide whether the
Eknath Shinde faction had defected from the Shiv Sena.
 On July 4th, 2023, Sunil Prabhu, a leader from the Thackeray faction, filed a plea in
the Supreme Court to direct the Speaker of the Maharashtra Legislative Assembly to
decide on the disqualification of members in the Eknath Shinde faction.

Decision

 The Bench conclusively said that: The correctness of the decision in Nabam Rebia is
referred to a larger Bench of 7 Judges.
 This Court cannot ordinarily adjudicate petitions for disqualification under the 10th
Schedule in the first instance. There are no extraordinary circumstances in the instant
case that warrant the exercise of jurisdiction by the Court to adjudicate the
disqualification petitions. The Speaker must decide the disqualification petitions
within a reasonable period.
 An MLA has the right to participate in the proceedings of the House regardless of the
pendency of any petitions for their disqualifications. The validity of the proceedings
of the House in the interregnum is not subject to the outcome of the disqualification
petitions.
 The Bench conclusively said that: The correctness of the decision in Nabam Rebia is
referred to a larger Bench of 7 Judges.
 This Court cannot ordinarily adjudicate petitions for disqualification under the 10th
Schedule in the first instance. There are no extraordinary circumstances in the instant
case that warrant the exercise of jurisdiction by the Court to adjudicate the
disqualification petitions.
 The Speaker must decide the disqualification petitions within a reasonable period. An
MLA has the right to participate in the proceedings of the House regardless of the
pendency of any petitions for their disqualifications. The validity of the proceedings
of the House in the interregnum is not subject to the outcome of the disqualification
petitions.
 The effect of the deletion of paragraph 3 of the 10th Schedule is that the defense of a
split is no longer available to members facing disqualification proceedings, the
Speaker would prima facie determine who the Political Party is for the purpose of

172
 adjudicating disqualifications petitions and paragraph 2(1) of the 10th Schedule,
where 2 or more factions claim to be that political party.
 The Governor was not justified in calling upon Mr. Thackeray to prove his majority
on the floor of the House because he did not have reasons based on objective material
before him to reach the conclusion that Thackeray had lost the confidence of the
House. However, the status quo ante cannot be restored because Thackeray did not
face the floor test and tendered his resignation. Therefore, the Governor was justified
in inviting Eknath Shinde to form the Government at the behest of the BJP which was
the largest political party in the House.

Module VI- Constitutional Emergencies

Introduction
• Black law’s dictionary defines emergency “as a failure of social system to deliver
reasonable conditions of life”. The term emergency may be defined as “circumstances
arising suddenly that calls for immediate action by the public authorities under the
powers especially granted to them”.
• Dr. B.R Ambedkar claimed that the Indian federation was unique as during the times
of emergency it could convert itself into an entirely unitary system. In india, the
emergency provisions are such that the constitution itself enables the federal
government acquire the strength of unitary government whenever the situation
demands. During such urgent needs all the specific methods should be exhausted and
emergency should also be the last weapon to use as it affects India’s federal feature of
government.
• There are three types of emergencies under the Indian constitution namely-
• national emergency
• failure of constitutional machinery in states
• financial emergency

National Emergency
• Article 352 of the Indian constitution talks about the national emergency. National
emergency is imposed whereby there is a grave threat to the security of india or any of
its territory due to war, external aggression or armed rebellion. Such emergency shall

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 be imposed by the president on the basis of written request by the council of ministers
headed by the prime minister. When they are satisfied that there is an eminent danger
thereof.
• Every proclamation is required to be laid before each house of parliament, it will
cease to operate after one month from the date of its issue unless in the meantime it is
approved by the parliament, the proclamation may continue for a period of 6 months
unless revoked by the president. For further continuance of emergency the resolution
has to be passed by either house of parliament by a majority of not less than two-third
members of the houses.
• During the times of such emergency the executive, legislative and financial power
rests with the centre whereas the state legislature is not suspended. The union
government under art.250 of the constitution gets the power to legislate in regards to
subjects enumerated in the state list. Except art 20 and 21 all the fundamental rights
are suspended. Under art.359 the president may suspend the right to move to the
courts for enforcement of fundamental rights during the time of emergency.
• National emergency has been imposed thrice in the country- in 1962 at time of
chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of
internal disturbances.

Failure of Constitutional Machinery in State

• Article 256 talks about the failure of constitutional machinery in state also known as
the president’s rule. If the president on governor’s report or otherwise is satisfied that
the situation has arisen that the government can’t be carried in accordance with the
constitutional provisions then, he may issue state emergency.
• President can declare emergency either by the report of governor or he himself is
satisfied that the situation is such that the emergency has to be imposed. But at times,
president may declare emergency when a report is not received from the governor.
This was done by president venkataraman in 1991 in the state of tamil nadu even
though he didn’t receive a report from the governor.
• After the 42th amendment of the constitution the state emergency was made immune
from judicial review. But later in the 44th amendment the legality of president’s rule
could be challenged
• The proclamation relating to state emergency shall be laid before each house of
parliament unless both houses approve it, the emergency shall cease to have effect

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 after the expiry of a period of two months. Further the duration of proclamation can
be extended to 6 months each time by both houses of parliament passing resolution
approving its continuance. Beyond the period of a year the proclamation can only be
continued, if the election commission certifies that it is not possible to hold election in
the state or that territory.
• The consequences of state emergency are-
• the president assumes all the executive power of the state himself. The state
administration runs by him or any person appointed by him generally the
governor.
• During such proclamation, the state assembly is either dissolved or suspended.
But the mla’s do not lose their membership of the assembly.
• Parliament makes laws regarding the state list. The parliament only passes the
budget for the state. · The high court of the state functions independently.
• President also proclaims ordinances in the state.
• During the state emergency the union government has absolute control over the state
except the judiciary. If one looks at the past instances of state emergency in the
country, three common grounds emerge that have been invoked under art.356-
breakdown of law and order, political instability, corruption and maladministration.
• In Rameshwar Prasad v. UOI (Bihar assembly dissolution case) it was held that the
presidential proclamation dissolving state assembly in bihar under art.356 was
unconstitutional on extraneous and irrelevant ground. The court said that the state
governor misled the centre in recommending dissolution of state assembly.
• In the historic case of S.R. bommai V. UOI, a full bench of the Karnataka high court
produced different opinion about the imposition of the president’s rule in Karnataka,
while in other states the court held that it was in violation of the constitution and
would have restored the original position.

Financial Emergency
• The president under article 360 of the constitution has the power to declare financial
emergency if he is satisfied that the financial stability or the credit of india or any part
of its territory is threatened. It has to be laid before both the houses of parliament and
ceases to operate at the expiration of two months unless meanwhile approved by the
resolution of houses.

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• During the operation of financial emergency, the executive authority of the union
extends to the giving of directions to any state to observe certain specified canons or
financial propriety and such other directions that the president may find necessary.
The directions may include reduction of salaries or allowance of those serving a state,
of all those in connection with the affairs of union including judges of high court and
supreme court. There has been no occasion of financial emergency in india.
• Federalism according to dicey is a weak form of government because it involves
division of power between the centre and the units. Every modern federation,
however, has sought to avoid this weakness by providing for the assumption of larger
powers by the federal government whenever unified action is necessary by reason of
internal or external emergent circumstances. For different kinds of emergencies, the
indian constitution confers extraordinary powers upon the union. The emergency
provisions provided under the constitution enables the federal government to acquire
the strength of a unitary system whenever the exigencies of the situation so demand.
• Emergency provision is a unique feature of indian constitution that allows the centre
to assume wide powers so as to handle special situations. In emergency, the centre can
take full legislative and executive control of any state. Emergency provision also
allows the centre to curtail or suspend freedom of the citizens.

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Effects of national emergency
• The declaration of national emergency effects both on the rights of individuals and the
autonomy of the states in the following manner:
• 1. The most significant effect is that the federal form of the constitution
changes into unitary. The authority of the centre increases and the parliament
assumes the power to make laws for the entire country or any part thereof,
even in respect of subjects mentioned in the state list.
• 2. The president of India can issue directions to the states as to the manner in
which the executive power of the states is to be exercised.
• 3. During the emergency period, the loksabha can extend tenure by a period of
1 year at a time. But the same cannot be extended beyond 6 months after the
proclamation ceases to operate. The tenure of state assemblies can also be
extended in the same manner.

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 • 4. During emergency, the president is empowered to modify the provisions
regarding distribution of revenues between the union and the states.
• 5. The fundamental rights under article 19 are automatically suspended and
this suspension continues till the end of the emergency.
• But according to the 44th amendment, freedoms listed in article 19 can be suspended
only in case of proclamation on the ground of war or external aggression. From the
above discussion, it becomes quite clear that emergency not only suspends the
autonomy of the states but also converts the federal structure of india into a unitary
one. Still it is considered necessary as it equips the union government with vast
powers to cope up with the abnormal situations.

Effects of State Emergency

• The declaration of emergency due to the breakdown of constitutional machinery in a
state has the following effects:
• 1. The president can assume to himself all or any of the functions of the state
government or he may vest all or any of those functions with the governor or
any other executive authority.
• 2. The president may dissolve the state legislative assembly or put it under
suspension. He may authorise the parliament to make laws on behalf of the
state legislature.
• 3. The president can make any other incidental or consequential provision
necessary to give effect to the object of proclamation.

Effects of Financial Emergency

• The proclamation of financial emergency may have the following consequences:
• 1. The union government may give direction to any of the states regarding financial
matters.
• 2. The president may ask the states to reduce the salaries and allowances of all or any
class of persons in government service.
• 3. The president may ask the states to reserve all the money bills for the consideration
of the parliament after they have been passed by the state legislature.
• 4. The president may also give directions for the reduction of salaries and allowances
of the central government employees including the judges of the supreme court and
the high courts.

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Effects of Proclamation of Emergency on the Fundamental Rights
• Federal laws will overrule state legislation, and the union is empowered to govern
areas (eg. Policing) that are normally devolved to the states.
• The union is also empowered to take over and completely control the taxation and
budgetary revenue processes. Under financial emergency, the union is empowered to
have the final say in the promulgation of financial acts approved by the state
legislature.
• The union may decide to suspend some or all of the fundamental rights guaranteed by
part iii (articles 12 through 35) of the constitution
• Further, the right to challenge the suspension of the above mentioned rights (the right
to constitutional remedies) may also be suspended. However, this provision will not
cover the suspension of articles 20 and 21 which govern rights to personal liberty,
right to silence, freedom from double jeopardy and freedom from unlawful arrest and
detention. Any individual who deems that his rights under these categories have been
suspended unlawfully, can challenge the suspensions under a court of law.
• The union may decide to dismiss the legislative functions of a state legislature and
impose federal law for a period of six months. This state of suspension may be
renewed at the end of this period under the vote of parliament (indefinite number of
times) until such a time when the election commission of india can certify the
feasibility of holding free and fair elections in the state to reconstitute the legislature.
• Any order to the above effects however, should be passed by the house of parliament
"as soon may be after it is made".

Difference between Article 358 and Article 359

In the case of makhan singh v. State of punjab, hon'ble supreme court distinguished between
articles 358 and 359 as below:

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Changes Made By 44th Amendment
Background:
• The proclamation of emergency is a very serious matter as it disturbs the normal
fabric of the constitution and adversely affects the rights of the people. Such a
proclamation should, therefore, be issued only in exceptional circumstances and not
merely to keep an unpopular government from office. This happened in june 1975
when an emergency was declared on the ground of internal disturbance without there
being adequate justification for the same.
• The proclamation of 1975 was made on the ground of internal disturbance which
proved to be the most controversial because there was violation of fundamental rights
of the people on a large scale; drastic press censorship was imposed.
• A large number of persons were put in preventive detention without justification. In
the light of these amendments have thus been made by the 44th amendment act to the
emergency provisions of the constitutions to make repetition of the 1975 situation
extremely difficult, if not impossible.
• The 44th Amendment

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 • The 44th amendment substantially altered the emergency provisions of the
constitution to ensure that it is not abused by the executive as done by ms. Indira
gandhi in 1975. It also restored certain changes that were done by 42nd amendment.
The following are important points of this amendment.
• 1. "Internal disturbance" was replaced by "armed rebellion" under art 352.
• 2. The decision of proclamation of emergency must be communicated by the cabinet
in writing.
• 3. Proclamation of emergency must be laid before both the houses of parliament
within one month.
• 4. To continue emergency, it must be re-approved by the houses every six month.
• 5. Emergency can be revoked by passing resolution to that effect by a simple majority
of the houses present and voting. 1/10 of the members of a house can move such a
resolution.
• 6. Article 358 provides that article 19 will be suspended only upon war or external
aggression and not upon armed rebellion. Further, every such law that transgresses
article 19 must recite that it is connected to article 358. All other laws can still be
challenged if they violate article 19.
• 7. Article 359, provides, suspension of the right to move courts for violation of part III
will not include articles 20 and 21.
• 8. Reversed back the term of loksabha from 6 to 5 years.

Judicial Review
• In the case of bhut nath v. State of west bengal, the supreme court held that it is a
political question and not a justiciable issue. Also to make the position more clear on
this matter the 38th amendment to the constitution added clause 5 to the article 352
saying that the ‘satisfaction’ of the president as used in article 352(1) and (3) is to
mean “final and conclusive” and “could not be challenged in any court of law”.
• But later on after indian democracy saw the abuse of these powers during the
emergency of the 1975, by the 44th amendment later on the provision of article
352(5) inserted by the 38th amendment to the constitution was revoked. Therefore the
present position on this matter is that, it is upto the supreme court to decide whether it
will treat the ‘satisfaction’ of the president to issue a proclamation of emergency, or to
vary it or to continue it, as ‘final’ and ‘non-justiciable’, or as being subject to judicial
review on some grounds.

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 • Also it is worth noting herein that justice bhagwati has observed in the case of
minerva mills that “whether the precedent proclaiming the emergency under article
352 had applied his mind or whether he acted outside his powers or acted mala fide in
proclaiming the emergency could not be excluded from the scope of judicial review.”

Proclamation under Article 356

• The susceptibility of a proclamation under article 356 to judicial review is beyond
dispute, because the power under article 356(1) is a conditional power. In the exercise
of the power of judicial review, the court is entitled to examine whether the condition
has been satisfied or not. So the controversy actually revolves around the scope and
reach of judicial review.
• From the decisions in the case of state of rajasthan v. Union of india and the bommai
case, it is clear that there cannot be a uniform rule applicable to all cases it is bound to
vary depending upon the subject matter, nature of the right, and other factors.
However, where it is possible the existence of satisfaction can always be challenged
on the ground that it is ‘mala fides’ or ‘based on wholly extraneous and irrelevant
grounds’.
• The relevance of judicial review in matters involving article 356 is also emphasized in
the supreme court judgment in re state of madhya pradesh v. Bharat singh, where the
supreme court held that it was not precluded from striking down a law passed prior to
a proclamation of emergency, as ultra vires to the constitution, just because the
proclamation was in force at that time.
• Judicial review of the proclamation under article 356(1) was first tested in state of
rajasthan v. Union of india, in which a seven member’s constitution bench of the
supreme court by a unanimous judgment rejected the petitioner petition and upheld
the centre’s action of dissolving three assemblies under article 356 as constitutionally
valid.
• The supreme court, in the case of minerva mills and others v. Union of india and
others, dwelt extensively on its power to examine the validity of a proclamation of
emergency issued by the president. The supreme court in this matter observed, inter
alia, that it should not hesitate to perform its constitutional duty merely because it
involves considering political issues. At the same time, it should restrict itself to
examining whether the constitutional requirements of article 352 have been observed
in the declaration of the proclamation and it should not go into the sufficiency of the

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 facts and circumstances of the presidential satisfaction in the existence of a situation
of emergency.
• Thus we can safely conclude that, though limited, the presidential proclamation under
article 356 is subject to judicial review. The most recent case which decided the extent
of judicial review of the proclamation by the president imposing ‘president’s rule’ in
the states and consolidated the legal position on the subjective satisfaction of the
president is S R bommai v union of india was a landmark in the history of the indian
constitution.
• It was in this case that the supreme court boldly marked out the paradigm and
limitations within which article 356 was to function. In the words of soli sorabjee,
eminent jurist and former solicitor-general of india, “after the supreme court’s
judgment in the S. R. Bommai case, it is well settled that article 356 is an extreme
power and is to be used as a last resort in cases where it is manifest that there is an
impasse and the constitutional machinery in a state has collapsed”.

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 theactual occurrence of
war or of any such aggression or rebellion, if the President is satisfied that there is
imminent danger thereof.
• (2)A Proclamation issued under clause (1) may be varied or revoked by a subsequent
Proclamation.
• (3)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.
• (4)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

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 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 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.
• (5)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 to 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 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
• (6)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 themembers of that House present and voting.
• (7)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.

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 • (8)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 (I) or a Proclamation varying such
Proclamation,--
• (a)to the Speaker, if the House is in session; or
• (b)10 the President, if the House is not in session,a special sitting of the House shall
be held within fourteen days from the dale 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.
• (9)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.
• [Editorial comment-The Constitution (Thirty-Eighth Amendment) Act, 1975,
Amended Article 352 of the Constitution of India, has been amended by adding two
clauses that say the president has the power to declare an emergency to issue a
different proclamation on different grounds, such as war or external aggression, or
internal disturbance."Also Refer]
• [Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed
Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and
made a separate Article 300A in Chapter IV of Part XII. This amendment may have
taken away the scope of speedy remedy under Article 32 for the violation of Right to
Property because it is no more a Fundamental Right. Making it a legal right under the
Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism
included in the preamble and secondly, in doing so, it conformed to the doctrine of
basic structure of the Constitution. Also Refer]

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

185
 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:
• 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.
• (2)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.
• [Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed
Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and
made a separate Article 300A in Chapter IV of Part XII. This amendment may have
taken away the scope of speedy remedy under Article 32 for the violation of Right to
Property because it is no more a Fundamental Right. Making it a legal right under the
Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism
included in the preamble and secondly, in doing so, it conformed to the doctrine of
basic structure of the Constitution. Also Refer]
• [Editorial comment-The Constitution (Forty-Second Amendment) Act, 1976, Articles
358 were amended, to allow suspension of Fundamental Rights, and suspension of
enforcement of any of the rights conferred by the Constitution during an
Emergency.Also Refer]

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

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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.
(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 containing 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 lo 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.
(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
(2)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.
• (3)Every order made under clause (1) shall, as soon may be after it is made, be laid
before each House of Parliament.
• [Editorial comment-The Constitution (Thirty-Eighth Amendment) Act, 1975,
Amendment of article 359 of the constitution by inserting therein a new clause. it
states that while an order issued by the President under clause (1) suspends
enforcement of any of the rights conferred by Part III of the Constitution during
emergencies, nothing in that Part shall limit the State’s power to make any law or
take any executive action that the State would be competent to make or take but for

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 the provisions contained in Part III. It also states that any legislation thus enacted
must, to the degree of incompetence, cease to have force as soon as the Presidential
order ceases to function, save in respect of actions done or omitted to be done before
the law so ceases to have an effect.Also Refer]
• [Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed
Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and
made a separate Article 300A in Chapter IV of Part XII. This amendment may have
taken away the scope of speedy remedy under Article 32 for the violation of Right to
Property because it is no more a Fundamental Right. Making it a legal right under the
Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism
included in the preamble and secondly, in doing so, it conformed to the doctrine of
basic structure of the Constitution. Also Refer]
• [Editorial comment-The Constitution (Forty-Second Amendment) Act, 1976, artyicle
359 were amended, to allow suspension of Fundamental Rights, and suspension of
enforcement of any of the rights conferred by the Constitution during an
Emergency. Also Refer]

FUNDAMENTAL RIGHTS VS. EMERGENCY

• During the period of emergency, as declared under the either of the two categories
discussed above, the state is empowered to suspend the fundamental rights guaranteed
under article 19 of the constitution. The term 'state' is used here in the same sense in
which it has been used in the chapter on fundamental rights. It means that the power
to suspend the operation of these fundamental rights is vested not only in parliament
but also in the union executive and even in subordinate authority. Further, the
constitution empowers the president to suspend the right to move any court of law for
the enforcement of any of the fundamental rights. It means that virtually the whole
chapter on fundamental rights can be suspended during the operation of the
emergency. However, such order are to be placed before parliament as soon as
possible for its approval.

But art. 20 and art.21 can not be suspended in any case

• Suspension of fundamental rights during emergency is a matter of debate and
conflicts of opinion ab initio, it would be a mistake to treat human rights as though
there were a trade-off to be made between human rights and goals such a security and

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 development. Fundamental rights are moral rights which have been made legal by the
constitution. These constitutional rights which are ‘fundamental’ in character
represent rights in the ‘strong sense’. They are distinct from ordinary legal and
constitutional rights because they may not be restricted on ground of general utility.
The very essence of these rights is that they are guaranteed even if the majority would
be worse off in doing so,that fundamental rights are necessary to protect the dignity of
an individual. Invasion of these rights is a very serious matter and it means treating a
man as less than a man. This is grave injustice and it is worth paying the incremental
cost in social policy or efficiency that is necessary to prevent it.

The Habeas Corpus Case

• The most controversial use of emergency power in the history of india has been
between 1975 and 1977. The experience of this state of emergency exposed the
weaknesses and inadequacies of safeguards on use of crisis power by the government.
Though restrictions were imposed on various rights in this period, the most serious
infringement was of personal liberty, which is the focus on the next section.
• The president issued orders under the constitution of india, art. 359(1) suspending the
right of any person to move any court for enforcement of fundamental rights under
arts.14, 21 and 22 and 19 for the duration of the emergency. Following this
declaration hundreds of persons were arrested and detained all over the country under
the swoop of the maintenance of internal security act, 1971.
• Various persons detained under maintenance of internal security act, 1971, s. 3(1)
filed petitions in different high courts for the issue of the writ of habeas corpus.
• The balance between rights and security may be enhanced by making further changes
than those recommended in the 1978 amendment. This includes making the
information withheld by the government under art. 22(6) justiciable.
• Seervai suggests this may be achieved by allowing a judge to examine the claim of
the government that the information of grounds of detention has to be withheld in
public interest.This via media is on the lines of the special advocate system in britain.
• The Indian experience with emergency powers reveals a mixed record. These
powers were used more responsibly in 1962 than in 1970. The principle of
proportionality must thus be the governing principle to ensure that rights are not
subverted in the name of security.

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Judicial Interpretation of Validity of Suspension of Fundamental Rights
POSITION BEFORE 1978:-
• Suspension of Art. 19 - Makhan Singh v. State of Punjab
• Art.358 makes it clear that things done or omitted to be done during emergency could
not be challenged even after the emergency was over, in other words the suspension
of art.19 was complete during the period in question and legislative and excutive
action, which contravened art.19 could not be questioned even after the emergency
was over.

A.D.M. Jabalpur v.Shivkant Shukla

• Suspension of Art.20, 21
• The President issued orders under the Constitution of India, Art. 359(1) suspending
the right of any person to move any court for enforcement of fundamental rights under
arts.14, 21 and 22 and 19 for the duration of the emergency. Following this
declaration hundreds of persons were arrested and detained all over the country under
the swoop of the Maintenance of Internal Security Act, 1971.
• Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1)
filed petitions in different high courts for the issue of the writ of habeas corpus.
• The High Court broadly took the view that the detention may be challenged on the
grounds of ultra vires, rejecting the preliminary objection of the government.
Aggrieved by this the government filed appeals, some under certificates granted by
High Courts and some under special leave granted by the Supreme Court. Despite
every High Court ruling in favor of the detenue.
• The Supreme Court ruled in favor the Government. What the court except for
Khanna, J. failed to realise is that the right to personal to life and liberty are
human rights and is not a ‘gift of the Constitution’. International Covenant on
Civil and Political Rights ,art. 4 recognises the right to life and personal liberty
to be a non- derogable right even during times of emergency.

Suspension of Art.14 and 16

Arjun Singh v. State of Rajasthan
• The question arose whether art.16 is also suspended although it is not mentioned in
order, the Rajasthan High Court held that art.16 remained operative even though

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 art.14 was suspended. The court emphasized that under art.359 the enforcement of
only such fundamental rights was suspended as were specifically and expressly
mentioned in the presidential order.

Status of Art.356 after Bommai case-

• The landmark case of S. R. Bommai v. Union of India, in the history of the Indian
Constitution has great implications in Center-State relations. It is in this case that the
Supreme Court boldly marked out the limitations within which Article 356 has to
function. The Supreme Court of India in its judgment in the case said that it is well
settled that Article 356 is an extreme power and is to be used as a last method in cases
where it is manifest that the constitutional machinery in a State has collapsed.
• The views expressed by the bench in the case are similar to the concern showed by the
Sarkaria Commission. In this case the bench observed that the power conferred by
Article 356 upon the President is a conditioned power. It is not an absolute power. The
existence of material - which may comprise of or include the report of the Governor is
a pre-condition. The satisfaction must be formed on relevant material, and must have
rational.
• Similarly, Article 356 of the Constitution confers a power upon the President to be
exercised only where he is satisfied that a situation has arisen where the Government
of a State cannot be carried on in accordance with the provisions of the Constitution.
Under our Constitution, the power is really that of the Union Council of Ministers
with the Prime Minister at its head. The satisfaction contemplated by the article is
subjective in nature. However, the subjective satisfaction if based on malice may be
questioned in court of law.
• The remark of the Supreme Court that proclamation of emergency is not beyond
judicial review is welcome step. The court held that the Proclamation under Article
356(1) is not immune from judicial review. The Supreme Court or the High Court can
strike down the Proclamation if it is found to be mala fide or based on wholly
irrelevant or extraneous grounds.
• Earlier, with 38th (Amendment) Act by the 44th (Amendment) Act, government had
taken out the power of reviewability of the action of imposition of emergency under
Article 356(1). Now, under the new circumstances, when called upon, the Union of
India has to produce the material on the basis of which action was taken.

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 • The history of Indian constitution with respect to fundamental rights and their stability
with emergency provisions is full of vagueness and ambiguity.
• From the very beginning of “the case of habeas corpus” and Makhan Singh to the
landmark case of S.R. Bommai, the provisions and conditions are getting better and
better. Initially even the suspension of Art. 20 and 21 during emergency was valid,
though those rights are not given by “the constitution” but by nature itself.

1975 Emergency Reason

• Allahabad High Court gave judgement against the Prime Minister. Judgement barred
her to contest election for the next six years and finds her involvement in ill corrupt
practices in 5th Lok Sabha election of 1971.
• The demonstration was organised by the opposition under the supervision of
Jayaprakash Narayan.
• The relationship between the Judiciary and Legislative become weak as Parliament’s
amendment of the Fundamental Rights was opposed by the Supreme Court.
• An agitation that was launched in Gujarat in 1974 by the opposition party.

Consequences
1. Freedom of the Press was suspended and Indian Raj Censorship was imposed under
which newspapers get prior approval for publication.
2. Fundamental Rights of the citizens were suspended.
3. Opposition leaders were arrested and strikes were banned.
4. Under 42nd Constitutional (Amendment) Act, 1976, Elections of the Prime Minister,
the President, and the Vice-President was kept out of the purview of justification from
the court.
5. Provision of Habeas Corpus was neglected nullifying the rights of citizens under
Article 21.

Effects
1. It led to the political crisis and Constitutional crises on the Indian polity.
2. Many new political parties emerged after 1977.
3. Emergency showed its impact on 1977 Lok Sabha election as Janta Party won the
election.
4. Fundamental Rights of the citizens were strengthened.

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 5. The 44th Constitutional (Amendment) Act, 1978, was passed to clear the ambiguity of
provisions of emergency.

Conclusion
• To sum up, everything that has been stated, the 1975 Emergency emerges as the dark
side of the Indian Judiciary. The emergency of 1975 was not less than a dark age of
the Indian democracy because during this period India emerged as a weak democratic
country. It affected the federal structure of democracy.
• It left the legislature to think about the provisions of the Constitution.
• The Indian Constitution was continuously amending to favour one’s situation. Later, it
becomes necessary to amend the Constitution again, but this time to maintain its
supremacy.
• In Kesavananda Bharati v. State of Kerala, the Supreme Court observed that
“Parliament does not possess any power under Article 368 to amend the basic
structure of the Constitution. Parliament has the power to amend the entire
Constitution whenever it becomes necessary according to the requirement
subject to, they cannot touch the Fundamental Rights which are the basic
structure of the Constitution”.
• Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976 AIR 1207

Background
• After defeat in the Lok Sabha election of 1971, Raj Narain challenged the election in
the Allahabad High Court on the ground that she was guilty of corruption from her
constituency. In the case of Raj Narain v. State of Uttar Pradesh, Allahabad High
Court found Indira Gandhi’s involvement in corrupt practices and declared her
election invalid. Indira Gandhi approached the Supreme Court where Justice Krishna
Iyer put a conditional stay on Allahabad judgement. On a day before hearing of the
case in the Supreme Court, President Fakhruddin Ali Ahmed declared Emergency on
the ground of “Internal Disturbance”.
• During the Emergency, Fundamental Rights remained suspended under Article 14 and
21, as well as any proceedings related to the enforcement of these Articles also
remained suspended during the period of Emergency. Anyone who was causing a
threat to the politics was arrested under Preventive Detention Law.

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 • Many famous political leaders were arrested under the Maintenance of Internal
Security Act, 1971 (MISA) because their activities were causing a political threat to
Indira Gandhi.
• These leaders approached the High Court against the arrest and the High Court made
a decision in their favour. Indira Gandhi’s Government filed a petition in the Supreme
Court as a Fundamental Right under Article 21 is suspended writ cannot be issued.

Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976 AIR 1207

Issues
1. Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal
detention when an emergency was imposed by the President?
2. Whether suspension of Rights and Liberty of any person under Article 21 is valid
under Rule of Law?
3. Whether detenue have locus standi during the proclamation of emergency?

Judgement
• Supreme Court observed that under Article 359 clause (1) no person has locus standi
to approach the High Court under Article 226 to enforce his fundamental right of
personal liberty in case of detention by filing a writ of habeas corpus. Fundamental
Rights remain suspended during the Emergency. A person cannot invoke habeas
corpus by filing an application under Section 491 of the Code of Criminal Procedure,
1973. Supreme Court declared Section 16A (9) of Maintenance of Internal Security as
constitutionally valid.

Conclusion
• Emergencies in India are imposed by the President after both the House of Parliament
passed the resolution of the Proclamation of Emergency. Where the State Emergency
or President’s Rule is quite frequently used by the President, National Emergency had
become a part of history.
• The national emergency of 1975 shows the weaker or dark phase of the Judiciary.
Cases like Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show
loophole in the judicial system. Both cases do not recognize the Fundamental Rights
of citizens during emergencies. There was a need to change the mechanism and it was
done in Kesavananda Bharati’s case.

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Indira Nehru Gandhi vs. Shri Raj Narain & Anr
• Case No:- Appeal (civil) 887 of 1975
Bench:- A.N. Ray J., H.R Khanna J., K.K Mathew J., M.H Beg J. and Y.V
Chandrachud
J.

Facts
• Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha
Election 1971 against Indira Nehru Gandhi. Congress won the election with a
majority in 1971 and Mrs Gandhi took the oath as a new Prime Minister of India.
After the result of elections, Raj Narain approached the Allahabad High Court and
filed a petition against Indira Nehru Gandhi contending that she had performed her
election using corrupt practices.
• Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh that
Indira Gandhi was guilty, as she misuses Government machinery under section 123(7)
of Representation of Peoples Act, 1951. Indira Gandhi was barred to contest elections
for six years and she was forbidden to continue as a Prime Minister of India.
Further, the court observed that “Rules of evidence that prevent disclosure of certain
government documents in court proceedings may be overridden if the public interest
in disclosure outweighs the public interest in keeping documents secret”.
• The judgement led in a declaration of National Emergency under Article 352 by the
then President of India Fakhrudeen A. Ahmad. The reason given for imposing an
emergency was “Internal Disturbance”.
Raj Narain’s case was on conditional stay up to their appearance in the Supreme
Court on August 11, 1975. However, on August 10, 1975, Thirty-Ninth Constitutional
(Amendment) Act, 1971 was done and it inserted Article 329A which bar the Supreme
Court to entertain the matter. Further on one can question the election of Prime
Minister, President, Vice- President and the Speaker of Lok Sabha.
• Indira Nehru Gandhi vs. Shri Raj Narain & Anr

Issues
• Whether the 39th Constitutional (Amendment) Act, 1971 was Constitutionally valid?

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Judgment
• Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala for the
first time the Supreme Court observed that Clause 4 of Article 329A is violative and
unconstitutional. It violates the principle of separation of power as it provides
functions of the judiciary to the legislature.
• The amendment violated the “Rule of Law”.
• The Apex Court finds the 39th Constitutional Amendment Act, 1971 as violative of
the basic structure of the India Constitution and unconstitutional and therefore
declares it as void.

CASE LAWS

Makhan Singh Tarsikka v. State of Punjab, AIR1964 SC 381

• During the operation of the Emergency from 1962-1969, the Supreme Court confined
its role only to an examination of the propriety of instances of preventive detention in
terms of the applicable legislation.
• The Court did not endeavour to rule on the scope and operation of the Constitutionally
guaranteed Fundamental Rights during an Emergency.
• Nor did it assert its powers of judicial review in terms of the Constitutionally
entrenched provisions on the Supreme Court.
• Thus in all these cases, the Court upheld decisions of preventive detentions, and
therefore the case of Makhan Singh is an example of such an instance.
• Makhan Singh Tarsikka v. State of Punjab, AIR1964 SC 381
• Following the Chinese aggression on 8 September 1962, the President had declared a
national emergency in India under Article 352 of the Constitution on 26 October
1962.
• The Defence of India Ordinance 1962 (Number 4 of 1962) was also promulgated on
this day.
• An ordinance was promulgated on 3 November 1962 that suspended the rights of
citizens of India to move any Court for the enforcement of the rights under Article 21
and 22 of the Constitution for the time during which proclamation of emergency
issued on 26 October 1962 would be in force; under Article 359(1).
• The amendment of the Presidential order passed on 11 November, also extended this
suspension of the right to move the Court to Article 14 of the Constitution,

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• The appellants were detained under Rule 30(1)(b).
• In total, there are 26 criminal appeals, nine against the decision of the Punjab High
Court, and 17 against the decision of the Bombay High Court.
• All the appellants were detenues who had been detained by the Punjab and the
Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules
(hereinafter called the Rules) made by the Central Government in exercise of the
powers conferred on it by the Defence of India Ordinance.
• Makhan Singh Tarsikka v. State of Punjab, AIR1964 SC 381
• They had applied to the Punjab High Court and the Bombay High Court under Section
491 (1)(b) of the Code of Criminal Procedure(Cr.p.c.) and alleged that they had been
illegally detained.
• Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act,of 1962
(No. 51 of 1962) and Rule 30(1)(b) under which they have been detained were
Constitutionally invalid, because they contravened their fundamental rights under
Articles 14, 21 and 22(4), (5) & (7) of the Constitution, and so, they claimed that an
order should be passed in their favour directing the respective State Governments to
set them at liberty.
• These petitions had been dismissed on the ground that the Presidential Order
which has been issued under Art. 359 of the Constitution creates a bar which
precludes them from moving the Court under s. 491(1)(b) Cr. P. C.
• The High Court of Allahabad in a similar case had favoured the detenues, and it was
the difference of opinion in the Bombay High Court and Punjab High Court that lead
to the formation of the Special Bench for the appeal.
• What was the true scope and effect of a Presidential Order issued under Article
359(l)?
• What is the nature of the proceedings which are barred by the Presidential Order
issued under Article 359(1)?
• Did the bar created by the Presidential Order operate in respect of applications for
habeas corpus made by detainees, not under Article 226 of the Constitution, but
section 491 of the Criminal Procedure Code?
• Since the object of Art. 359(1) is to suspend the rights of the citizens to move to
any court, the consequence of the Presidential Order may be that any proceeding
which may be pending at the date of the Order remains suspended during the
time that the order is in operation and may be revived when the said Order

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 ceases to be operative, and fresh proceedings cannot be taken by a citizen after
the Order has been issued, because the Order takes away right to move any
court and during the operation of the Order, the said right cannot be exercised
by instituting a fresh proceeding contrary to the Order. If a fresh proceeding
falling within the mischief of Art. 359(1) and the Presidential Order issued under
it is instituted after the Order has been issued, it will have to be dismissed as
being incompetent.
• The object of Art. 359(1) is to suspend the rights of the citizens to move to any court,
the consequence of the Presidential Order may be that any proceeding which may be
pending at the date of the Order remains suspended during the time that the order is in
operation and may be revived when the said Order ceases to be operative, and fresh
proceedings can’t be taken by a citizen after the Order has been issued.
• Section 491(1) (b), inter alia, provides that any High Court may, whenever it thinks
fit, direct that a person illegally or improperly detained in public custody be set at
liberty.
• Section 491(1)(b) a stranger can apply for the release of a detenu improperly or
illegally detained, or the Court itself can act suo motu.
• Concerning the general scope and legal consequence of a Presidential Order under
Article 359(l), the Supreme Court, in Makhan Singh, observed that its legal effect was
to constitute “a sort of moratorium or blanket ban” against the initiation, or
continuation, of any legal action which ‘in substance sought to enforce a Fundamental
Right specified in the Presidential Order. On this interpretation of Article 359, the
Supreme Court unanimously” concluded that a Presidential Order could never operate
as a bar to proceedings in which executive action is attacked on grounds which are not
relatable to the specified Fundamental Rights. Speaking on behalf of six of the seven
judges of the Bench, Justice Gajendragadltar identified several pleas that weren’t
barred by the Presidential Order. These concerned the enforceability of rights aside
from those laid out in the Presidential Order infringement by the detaining authority
of mandatory provisions of the detention legislation; mala fides.
• There is no doubt that the right to ask for a writ in the nature of habeas corpus which
could once have been treated as a matter of Common Law has become a statutory
right after 1923, and we have already seen it after s. 491 was introduced in the Cr.P.C..
It was not open to any citizen in India to claim the writ of habeas corpus on grounds
recognised by Common Law apart from the provisions of s. 491(1)(b) itself. It has,

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 however, been suggested by the learned Attorney-General that just as the common law
right to obtain a writ of habeas corpus became a statutory right in 1923, a part of the
said statutory right has now become a part of the fundamental rights guaranteed by the
Constitution, and so, after the Constitution came into force, whenever, a detenu claims
to be released from illegal or improper detention, his claim can, in some cases, be
sustained on the ground that illegal or improper detention affects his fundamental
rights guaranteed by Arts. 19, or 21 or 23 as the case may be. It is no doubt urged that
under s. 491(1)(b) a stranger can apply for the release of a detenu improperly or
illegally detained, or the Court itself can act suo motu.
• The Court thus considered whether Article 359 of the Constitution was to be so
construed on to empower the President to suspend “all actions which an
individual may take under a statute or common law, if he seeks thereby to
protect his liberty against unlawful encroachment by the state or its officers”
Was the effect of the Presidential Order confined to the Constitutional remedies
guaranteed by Articles 32 and 226, or would the Order also bar remedies which
are conferred by ordinary statutes, such as by section 49l of the Code of Criminal
Procedure?
• The Supreme Court conceded that the right to claim relief under the Code was a right
which was distinct and separate from that conferred by Articles 32 and 226 of the
Constitution. It was stressed that what was to be examined was not the technical
procedural form in which the action was initiated or not whether it was by a writ
petition under Article 32 or Article 226 of the Constitution, or by proceedings
sanctioned by ordinary statue, but rather that it was the “substance of the matter”
which was decisive. Therefore, proceedings taken under Section 491 of the Criminal
Procedure Code would be on the same footing as writ petitions under the Constitution
and would, with respect to pleas based on rights conferred by the Articles specified in
that Presidential Order, be equally liable to attract the procedural bar.”

State of Rajasthan v. Union of India, AIR 1977 SC 1361

• When the general elections took place for Lok Sabha in 1977, the Congress Party was
badly routed in several states by the Janata Party. The latter won formed the
government at the centre. In these states the Congress Governments were functioning
at that time and they still had more time to run out for completion of their full term.

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• The Central Home Minister, Charan Singh wrote a letter to each of the Chief
Ministers of the States suggesting that they should seek dissolution of the state
legislature from the Governor and obtain fresh mandate from the electorate.
• The State of Rajasthan , along with several other affected states, filed an original suit
under Article 131 of the Constitution against the Union of India praying the Court to
declare this directive of the Central Home Minister as unconstitutional and illegal.
• It was argued that the Letter of the Central Home Minister was a prelude for
invocation of Article 356 in these states and that the dissolution of the State
Legislatures on the ground mentioned in the said letter was prima facie outside the
purview of Article 356.
• In substance the suit was designed to forestall the invocation of Article 356 in the
concerned states.
• The Court observed, “The satisfactionunder Article 356 is a subjective one and cannot
be tested by reference to any objective tests or by or by judicially discoverable or
manageable standards”. Upon the facts, the Court concluded that it could not go into
the correctness or adequacy of the facts and the circumstances on which the
satisfaction of the Central government is based. However one thing is certain that if
the satisfaction is malafide or is based on wholly extraneous or irrelevant grounds, the
Court would have the jurisdiction to examine it because in that case there would be no
satisfaction of the President in regard to the matter in which he is required to be
satisfied (under Article 356 for the dissolution of the State Legislature).
• The Supreme Court held, therefore, that the State Legislature could be dissolved
without the President’s proclamation having been approved by the Parliament. Any
such proclamation come into immediate effect and remained in force for two months
without Parliamentary approval. The Court also rejected the contention that the
proclamation could not be issued when either or both Houses of Parliament were in
session.
• It was further held that even if the Parliament disapproved the proclamation within the
said period of two months, the proclamation continued to be valid for two months and
that even if both the Houses did not approve or disapprove the proclamation, the
governments which had been dismissed or the Assembly which may have been
dissolved did not revive.

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 • The Supreme Court dismissed the suit and held that the apprehended proclamation
would be valid. The position adopted by the Court was that it could not interfere with
the Centre’s exercise of power under Article 356 merely on the ground that it
embraced political and executive policy and expediency unless some constitutional
provision was being infringed . It was noted that Article 356(5) makes it impossible
for the court to question the Presidents satisfaction on any ground unless and until the
usage of the Article is found to be “grossly perverse and unreasonable” to constitute
patent abuse of the provision.
• It was held by the court that the proclamation is intended to function as a safeguard
against the failure of constitutional machinery in a state or to repair the effects of a
breakdown. Moreover, it was further observed that the satisfaction of the President
under Article 356 is a subjective one and cannot be tested by reference to any
objective tests. The correctness or adequacy of the facts and circumstances is not open
to the court for review. It was stated the power under Article 356 allowed the
government to make a curative or preventive action and therefore in the case in
question, the possibility of State Government having lost the confidence of people
could not be ruled out.
• The highlight of the decision lies in the assertion by almost all the judges that in spite
of the broad ambit of power under Article 356, a presidential proclamation could be
challenged if power was exercised malafide or on constitutionally or legally
prohibited grounds. It was observed that “satisfaction” of the President is a condition
precedent to the exercise of power under the article 356. It was held that maintenance
of democratic norms could not be regarded as an irrelevant ground for the exercise of
power of proclamation. Hence the letter of the Home Minister was characterised as
advisory in nature and not malafide.
• Also, regarding the question as to whether the term “state “ in Article 131 (a) also
included State government., it was held that a dispute between the Central and State
government involving a legal right was well within the powers of Article 131.

State of Karnataka v. Union of India, AIR 1977 SC 69

• A memo accusing the Chief Minister of Karnataka of corruption, nepotism and
favouritism was submitted by certain opposition members of the State Assembly. The
same was denied as being frivolous and politically motivated by the Chief Minister. A

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 Commission was constituted by the State Government headed by retired judge of
High Court on May 18, 1977.
• In furtherance of the memo, the Union Government appointed a one-man commission
headed by a retired Supreme Court Judge under the Commissions of Inquiry Act,
1952 on May 23, 1977. The Commission was to inquire into the allegations levelled
against the Chief Minister. Challenging the authority of Government to appoint such a
Commission and the legality of the said Commission, the State Government of
Karnataka filed a suit under Art.131 of the Constitution.
• In a suit under Art.131 of the Constitution, the distinction between the State
Government and the State, as an abstract entity, is immaterial.
• Art.131 will be applicable only in matters wherein any legal right of the parties such
as liberty, a right, power or immunity is affected. The State need not prove violation
of its legal right but the involvement of a legal question is sufficient ground for
accepting the matter.
• The scope of jurisdiction conferred upon the Supreme Court under Art.131 are wide
and grants original jurisdiction unless expressly excluded by the Constitution in
special circumstances.
• The Court while judging the constitutional validity of S.3 of the Act, reaffirmed the
quasi-federal nature of the Constitution.
• Thus, Art.131 can be invoked when a dispute arises between the State and the Central
Government on a question involving the interpretation of the Constitution.
• The judgement has been cited as precedent by the Kerala Government to prove its
grounds for maintainability of petition challenging the Citizenship Amendment Act,
enacted by the Central Government.

S. R. Bommai v. Union of India, AIR 1994 SC 1918

a. SR Bommai was the chief minister of the Janata Dal government in Karnataka
between 13 August 1988 and 21st April 1989.
b. His government was dismissed on 21 April 1989 under article 356 of the constitution
and president's rule was imposed in what was then a party mostly mode to keep
opposition party at bay.
c. The dismissal was on grounds that the government had lost majority following large
scale defections engineered by several party leaders of the day.

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d. Then governor p Venkatasubbaiah refused to give an opportunity to test his majority
in the assembly despite the letter presenting him with a copy of the resolution passed
by the Janata Dal legislative party.
e. Karnataka High court:
Bommai went to court against the governor's decisions to recommend president's rule
and the H.c.which dismissed his writ petition. then he moved the supreme court. On
April the governors sent a report to the president stating there in dissensions and
defection is in the ruling party. he further stated that in view of the withdrawal of the
support by the state legislature the chief minister Bommai.
• The Hon’ble Supreme Court interpreted the Article 356 of the Indian Constitution and
stated the grounds and prerequisites to be fulfilled before President’s Rule can be
imposed in a state. Article 356(1)(a) allows the President to take over the executive
powers of the state while Article 356(1)(b) allows the President to declare that the
Legislature of the state shall be exercisable by the Parliament. Moreover, the
President may make other such incidental and consequential provisions as necessary
or desirable for giving effect to the objects of the Proclamation, as stated by Article
356(1)(c). The clause 2 states that this Proclamation can be revoked or varied by a
subsequent Proclamation. Article 356(3) states that the said Proclamation (unless it is
a Proclamation for revoking an earlier Proclamation) must be passed by both the
houses of the Parliament before the expiry of the period of two months since it is
introduced. A Proclamation so approved, unless revoked, would cease to exist on the
expiration of a period of six months from the issue of such Proclamation.
• Moreover, the Supreme Court said that the power of the President under Article 356 is
subject to Judicial Review. Article 74(2) which provides protection to the government
and states that the advice given by the council of ministers should never be asked to
be revealed by courts was interpreted in a broader sense. The Supreme Court said that
the courts are not barred from asking for the material on which this advice is based
and that would still fall into the purview of Article 74(2) i.e, the court can call the
material on the basis of which such decision has been taken as the material behind the
satisfaction that President’s Rule is required. Prior to this judgment, the High Courts
of various states were interpreting the Article in a narrower sense and their
judgements were based on the exemption clause provided under Article 74(2) of the
Indian Constitution.

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 • The Court further stated that the President does not have the power to dissolve
the Legislative Assembly of the state. The power enshrined to him under Article
356(1)(c) authorises him to just suspend the workings of the Assembly. The
dissolution of the Legislative Assembly can be done only after the majority
approval of both the Houses of the Parliament. This would ensure that there are
checks and balances to the powers vested with the President.
• The Supreme Court discussed the Basic Structure Doctrine which states that the basic
structure of the Constitution i.e, the foundations on which the Indian Constitution is
based on, should always be followed, irrespective of the situation. The basic feature of
Federalism was called for discussion in this case. The Indian Constitution is federal in
character and even though it gives more powers to the central government, the
Supreme Court concluded that the states should be given adequate powers to rule in
their sphere and they should not be interfered with in this regard.
• Hence, as a result, the Supreme Court declared the President’s Rule established
in Karnataka as unconstitutional and restored the state government in the state.
• This case went on to become a landmark decision in regards to the centre-state
relations. S.R. Bommai v Union of India acts as an important testimony for the fact
that even though the centre has more power than the states, it cannot arbitrarily
impose its powers on the state. The Court kept in mind the Basic Structure Doctrine
and established that the states are supreme in their respective political arenas. This
case also threw light on the blatant misuse of the Article 356 and the ever so frequent
imposition of the President’s Rule and declared that to be unjustified.

Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920

• Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920, in this case, is the first
time the word “aggression” has been added to the Article-352. The petitioner filed a
case on the grounds of the constitutional validity of illegal migrants i.e in the Illegal
Migrants Determination Act, 1983, this was applicable only for Assam and
deportation of Bangladesh.
• Some Bangladeshi had entered into the territory of India illegally. The Court held that
“aggression” can not be termed as only war, this has other aspects within it. War is a
competition between the two states.
• 38. This being the situation there can be no manner of doubt that the State of Assam is
facing "external aggression and internal disturbance" on account of large scale

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 illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of
India to take all measures for protection of the State of Assam from such external
aggression and internal disturbance as enjoined in Article 355 of the Constitution.
Having regard to this constitutional mandate, the question arises whether the Union
of India has taken any measures for that purpose.
• 42. The above discussion leads to irresistible conclusion that the provisions of the
IMDT Act and the Rules made thereunder clearly negate the constitutional mandate
contained in Article 355 of the Constitution, where a duty has been cast upon the
Union of India to protect every State against external aggression and internal
disturbance. The IMDT Act which contravenes Article 355 of the Constitution is,
therefore, wholly unconstitutional and must be struck down.

Rameshwar Prasad v. Union of India, AIR 2006 SC 980

• In 2005, Bihar held elections for Legislative Assemblies. No party was unable to
create a government. As a result, on March 7, 2005, a notice was issued establishing
President's Rule in the state until a government could be constituted. The President's
rule was only supposed to be transitory. However, on April 27, 2005, the Governor
published a report stating that there is a possibility of horse-trading in the state and
that another chance to form a government should be offered.
• On the 21st of May, 2005, the Governor presented a new report in which he repeated
his previous position and requested that the suspended Assembly be dissolved so that
the electorate could prove their government in the Assembly once more. The
Legislative Assembly of Bihar was dissolved on May 23, 2005, as a result of this
report. This was argued in front of the Supreme Court.
• Rameshwar Prasad v. Union of India, AIR 2006 SC 980

Issues Raised: -
• 1) Is it permissible to dissolve the Legislative Assembly before its first sitting under
Article 174(2)(b) of the Constitution?
• 2) Whether the 23rd May 2005 proclamation to dissolve Bihar Assembly was illegal
and unconstitutional?
• 3) What does Article 361 provide the Governor in terms of Immunity?

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Rameshwar Prasad v. Union of India, AIR 2006 SC 980
• The dissolution of the Legislative Assembly was ruled unconstitutional. The case was
decided with a 3:2 majority in favour of the argument that the president's order fulfils
the criteria of being unconstitutional. The particular Judgements based on issues were:
-
• 1) Judicial review of a proclamation made under Article 356 is possible, but only to a
limited extent. The power of judicial review can only be invoked when a power is
exercised mala fide or on entirely extraneous or irrelevant reasons. Judicial review
principles that apply when an administrative action is challenged cannot be applied
stricto sensu.
• 2) The protection provided by Section 361 does not preclude the Court from
examining the action's legitimacy, including based on mala fide intent.
• 3) A Public Interest Litigation cannot be heard if the position adopted is in direct
opposition to the one expressed by those who are impacted by the action. In this case,
the Public Interest Litigation will be dismissed.
• This was the first time a state legislative assembly was dissolved before its first
meeting, and a majority to establish the government was obtained by unethical and
unlawful means.
• The petitioners stated that for the state legislative assembly to be dissolved, the
President must be satisfied that the state's government cannot be carried out in
conformity with the Constitution and that the constitutional machinery has completely
failed. This must be supported by solid proof. The entire point of holding the
assembly in suspended animation was to give political parties time to reconsider their
alliances to ensure a majority in the assembly. However, before this could happen, the
Governor issued a report based only on suspicion, as there was no clear evidence of
horse-trading. As a result, Article 365 has been abused.
• The Speaker has the power to dismiss MLAs for engaging in horse-trading. This
authority cannot be assumed by the Governor. The Governor's report is founded on
false facts, as the claims were made based on ipse dixit, and hence were not proven in
court. The case of S.R Bommai v. Union of India should be used to assess the
dissolution of the legislative assembly.
• It was also decided that the governor of a state had unlimited immunity under Article
361 of the Indian Constitution. When they use their powers, fulfil their duties, or

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 undertake any other act related to such duty or authority, they are not accountable to
any court of law. It is important to remember, however, that while the governor is not
accountable to the court, the court does have the authority to review the decision's
legitimacy and meaning.
• After the S.R. Bommai case (S.R Bommai v. Union of India)[2], Rameshwar Prasad
v. Union of India[3]is a significant case that defends democratic values and reiterates
the government's right to resolve the arbitrary dissolution of legislative assemblies.
The two opposing justices likewise provided a different way of looking at the issues.
They prioritised lawful and equitable measures, even if it meant dissolving the
legislative assembly. This point of view is valid when it comes to morals and ethics.
The majority, on the other hand, considered that Article 365 of the Constitution
should only be invoked in the rarest of circumstances, as the framers of our
Constitution had anticipated and expected.
• They thought that the liberal application of this article would make democracy and its
values a farce. "Such articles will never be called into effect and will remain a dead
letter," according to Dr. B.R. Ambedkar[4]. There are various alternative solutions for
solving this dilemma from the standpoint of constitutionality. It is possible to conduct
a floor test to determine the government's strength and stability. The legislature can be
placed on hold, and the Governor can make recommendations to the Council of
Ministers based on relevant and essential information in a report. As a result,
implementing President's rule under Article 365 should be a governor's last resort. The
recommendations of the Sarkaria Commission[5]should be considered in this regard
when choosing a governor.

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Module VII- Constitutional Amendment: Doctrine of
Basic Structure

Is constitutional Amendment a law?

• The question whether the word “law” in clause (2) of Art.13 also includes a
‘Constitutional amendment’ was for the first time considered by the supreme court in
Shankari Prasad Singh Deo v. Union of India the Constitutional (1st Amendment) Act,
1951, which amended the fundamental rights guaranteed under the constitution, which
was challenged on the ground that since the amendment has the effect of abridging the
fundamental rights it was not valid law within the meaning of clause (2) of Article 13.
• The contention was rejected by the apex court and held that the word ‘law’ in clause
(2) did not include a law made by the Parliament under Article 368 amending the
constitution.
• It was said that the word ‘law’ means the “the rules and regulations enacted by
legislatures” and not the “constitutional amendments made in exercise of
constituent powers.”
• Therefore, this judgment was followed by majority of judgments such as in Sajjan
Singh v. State of Rajasthan.
• However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority
held that the word ‘law’ in Article 13 (2) included the amendment of the constitution
and as a consequence, if an amendment abridged or took away fundamental rights
guaranteed under Part III of the Constitution of India, the amending Act itself will
become void and ultra vires.
• Subsequently, in the case of Kesavananda Bharati v. State of Kerala, the
Supreme Court of India overruled the Golak Nath case and unanimously held
that the Constitution (24th amendment) Act, 1971, which inserted clause (4) in
Article 13 and clause (3) in Article 368 was valid. Therefore, all the judges agreed
that the amended Article 368, all the provisions including those enshrining
fundamental rights (Part III) could be amended.

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Marbury vs Madison: Judicial Review
• The Doctrine of Judicial Review was for the first time propounded by the Supreme
Court of America. Originally, the constitution of United States did not contain an
express provision for judicial review but it was assumed by the Supreme Court of
United States in the historic case of Marbury vs Madison The case was rooted in
division between the Federalist and Republican parties following election 1800.
During election, Thomas Jefferson(Republican) defeated John Adams(Federalist).
While Adams lost election in November 1800, his term of office did not expire until
following march 1801. Adams used this period to appoint several federal judges to
bench. Some of these appointments were made during final hours of his presidency,
earning dubious title 'the midnight judge'.
• Judges could not assume position until a commission was officially delivered by
secretary of state. Since many of Adams appointments were made in final days of his
presidency many of commissions were not delivered when he left office. The new
president, Thomas Jefferson ordered his new secretary of the state James Madison not
to deliver the commission. William Marbury, who expected his commission requested
the SC to issue a writ of mandamus(an official order to govt officer) to Madison
ordering him to deliver the commission.

Marbury vs Madison: Judicial Review

• Marbury argued that SC had power to issue writ under provisions of judiciary act of
1789,passed by congress. In 1803,the chief justice John Marshall of SC ruled that:
• Madison should not have withheld Marbury's commission, since the commission was
signed & sealed it was rightfully owed to Marbury.
• However he also ruled that SC did not have jurisdiction in this matter & could not
force Madison to deliver commission.
• U/s.13, Judiciary act,1789 passed by congress gave supreme court the power to issue
writs & orders. (In Marshall's opinion, Congress could not give the Supreme Court the
power to issue an order granting Marbury his commission. Only the Constitution
could, and the document said nothing about the Supreme Court having the power to
issue such an order.) Sec.13 of judiciary act,1789,was declared unconstitutional
because congress tries to expand SC authority to include writ of mandamus under
court's original jurisdiction. (Art.3, sec.2 of U.S constitution specifically listed 3 types

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 of original jurisdiction). Marshall stated that congress overstepped its authority by
changing SC jurisdiction without following proper amendment procedure.
• Thus, CJ Marshall declared s.13 ,judiciary act of 1879,as unconstitutional.
• This case became a landmark case for judicial review. Marshall stated,
''constitution is the supreme law of land''& SC has final say over meaning of
constitution.
• Thus, court itself asserted the doctrine of judicial review.

Kesavananda Bharti V. State of Kerala

• In this case, the 24th and 25th Amendment Act of 1971 was challenged. A Judge
Bench of 13 Judges was constituted. With the ration of 7:6 held that:
• Power to amend the constitution is to be found in Article 368. It is hard to believe that
it lies in residuary power.
• There is a difference between ordinary law and constitutional amendment.
• Parliament can’t destroy or amend the basic structure of the constitution.
CJI Sikri gave the list of the Basic structure though not exhaustive;
• The supremacy of the constitution.
• Republic and democratic form of government.
• Secular character of the Indian Constitution.
• Separation of Power.
• Federal character.
1. Court also held that “compensation” can’t be replaced with “amount”.
2. Article 31(c)(i) was held valid but Article 31(c)(i was declared invalid.

Constitutional Amendments: Procedure of constitutional

amendments
• Amendment of the constitution implies changing certain provisions or updating few
external features to meet the requirement of the day. For the Constitution to reflect the
reality and necessity of the day, provision of constitutional amendment is necessary.
• Requirement of the Constitutional Amendment
• The necessity for the Amendment of the Constitution can be emphasized as follows:

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 • If there had been no provision of the amendment, the people and the leaders
would have adhered to some extra constitutional mean like revolution,
violence and so on there by diluting the very constitution per se.
• Provisions for amendment of the constitution is made with a view to overcome
the difficulties which may encounter in future in the working of the
constitution.
• It is also necessary in order to fix loop holes at the time of constitution
enactment
• Ideals, priorities and vision of the people vary greatly generation to
generation.
• In order to incorporate these, amendment is desirable.
• Constitution can be amended by various methods namely, simple majority, special
majority, and ratification by at least half the states. Constitutional amendment under
article 368 is considered as the core amendment procedure in the Indian constitution,
whose procedure can be explained as follows-
• 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
• (2) 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 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
(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 Legislature of not less than one half of the States by resolution to that
effect passed by those Legislatures before the Bill making provision for such
amendment is presented to the President for assent
• (3) Nothing in Article 13 shall apply to any amendment made under this article

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 • (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
• Describing the constitutional amendment procedure of the Indian constitution, K.G.
Balakrishnan (former CJI) has rightly said that amending the Constitution strikes a
good balance between flexibility and rigidity.
• Moreover, Granville Austin, a renowned scholar of the Indian Constitution said, “The
amending process has proved itself as one of the most ably conceived aspects of the
constitution. Although it appears complicated, it is merely diverse.”

Basic Structure Theory

• Originally, when the Constitution was framed, the Parliament had the authority to
amend any part of the Constitution. The Parliament’s amending power is subject to
substantive limitations was first raised in Sankari Prasad Deo v. Union of India. The
Constitutional challenge had arisen with respect to Part III of the Constitution, which
contains fundamental rights such as the right to life, equality, freedom of expression
etc. The challenge in Sankari Prasad was premised upon the wording of Article 13 of
the Constitution, which prohibits the State from making any law in violation of any
fundamental right enumerated in Part III. It was argued that a Constitutional
amendment was “law”, properly called; and so, under Article 13, it was impermissible
for the State to amend Part III of the Constitution. The argument was unanimously
rejected by a constitution bench of the Supreme Court, which held that the Parliament
had the power to amend any provision of the Constitution, without exception.
• The question came up again fourteen years later in Sajjan Singh v. State of Rajasthan,
also before a Constitution bench. Gajendragadkar C.J., speaking for him and two
others, upheld Sankari Prasad. Mudholkar J. observed that the framers may have
intended to give permanency to certain “basic features” such as the three organs of the
State, separation of powers etc. He also questioned whether a change in the basic
features of the Constitution could be defined as an “amendment” within the meaning
of Article 368, or whether it would amount to rewriting the Constitution itself.

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• The position of law was then reversed in I.C. Golak Nath v. State of Punjab. An
eleven judge bench of the Supreme Court held that the Parliament had no power to
amend Part III of the Constitution. All provisions dealing with fundamental rights
were thus placed beyond the reach of the legislature.
• In order to overcome GolakNath, Parliament enacted the Twenty-Fourth
Constitutional Amendment. This provided, inter alia, that the prohibition in Article 13
would not apply to an amendment of the Constitution under Article 368. It also
substituted the words “amendment by way of addition, variation or repeal” for only
“amendment” in Article 368. The Constitutional validity of the Twenty-Fourth
Amendment, amongst others, was strongly challenged in Kesavananda Bharati v.
State of Kerala.
• In Keshavanand Bharati case, initially a writ petition was filed for the validity of
Kerala Land Reforms Act of 1963. But the Act was subsequently amended and was
placed in the IXth Schedule. Later on Court was permitted to challenge the 25th and
29th Amendment of the Constitution. The Petition was heard before the thirteen
Judges of the Supreme Court. The Court held that the Parliament’s amending power
was plenary, and extended to every provision of the Constitution; the Parliament
could not damage or destroy the basic structure of the Constitution. In order to
determine the basic structure of the Constitution, recourse was taken to the preamble,
the Constitutional “scheme”, the struggle for independence from colonial rule, and the
drafting history of the Constitution.
• Chief Justice Sikri, in his majority opinion, provided five such “basic features”
present in the Constitution viz. (i) supremacy of the Constitution, (ii) republican
and democratic form of government, (iii) secular character of the Constitution,
(iv) separation of powers between the executive, legislature and judiciary, and (v)
federal character of the Constitution. Similar lists were prepared by the other
majority judges.
• The basic structure doctrine was crystallized in three further decisions of the decade.
In Indira Nehru Gandhi v. Raj Narain, a Constitutional amendment dealing with the
election of the Prime Minister and the Speaker was struck down for violating the basic
features of democracy, the rule of law and equality. In Minerva Mills v. Union of
India, the Parliament attempted to overturn Kesavananda by inserting the 42nd
Amendment, which expressly stated that the amending power was unlimited, and not
open to judicial review.

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• The amendment was struck down by the Court on the ground that the limited
amending power of the Parliament was itself part of the basic structure. Lastly, in
Waman Rao v. Union of India, it was held that laws placed in the 9th Schedule, and
thus beyond the pale of fundamental rights review, would nevertheless have to be
tested on the touchstone of the basic structure before they were given immunity.
• In the next two decades there was consolidation of the doctrine. In a series of
judgments, which may collectively be called the Tribunals Cases, it was held that
judicial review of the Supreme Court under Article 32, and of the High Courts under
Article 226, was a basic feature. First enunciated in S.R. Bommaiv. Union of India,
and then crystallized in the decisions of Ismail Faruquiv. Union of Indiaand Aruna
Roy v. Union of India, the Court developed the concept of the basic feature of
secularism as an attitude of even- handedness towards all religions. In I.R. Coelho v.
State of Tamil Nadu, the Court added Articles 14 (right to equality), Article 19
(fundamental freedoms) and Article 21 (right to life) to the list of basic features.
• This brief overview highlights the following salient points: first, basic structure
review is a substantive limitation upon the power of the Parliament to amend the
Constitution, i.e., Constitutional amendments must conform to certain standards
or values, and must not be in violation of certain substantive content, in order to
be constitutionally valid; secondly, the task of adjudicating content- based
violations of the basic structure must be performed by the judiciary; and thirdly,
the components of the basic structure doctrine, such as democracy, the rule of
law, secularism etc., have been enunciated in a highly abstract manner,
permitting varying and different interpretations. It is this framework that must
be kept in mind while analyzing the legitimacy of the basic structuredoctrine
• The aim of the Democratic state is conservation of natural rights of a man,
namely liberty, security and resistance to oppression. Judiciary must uphold the
Constitution taking the cognizance of the needs and aspirations of the people
articulated in the Preamble and the Basic structure.
• Judiciary upholds the basic structure of the written draft. The purpose of proper
interpretation of Rule of Law, the interpretation of the judiciary may be aligned with
the basic structure of the constitution. Judicial creativity must fill in the gap between
the existing law and the law as it ought to be. The Constitution as a ‘Grund norm’
should be interpreted according to the current societal standards, complete justice or

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 true justice must encompass within its morality and ethics. The interpretation of the
laws has to be purposive.
• This means the interpretation must serve the object of the enactment keeping in view
of the supreme law, the ‘grund norm,’ the constitution. Every law has to accord either
the Constitution; otherwise it suffers the defect of invalidity or unconstitutionality.
Indian constitution is not only a formal text, but also a dream and an instrument to
bring about social reform.
• The constitution vests in judiciary, the power to adjudicate upon the constitutional
validity of all the laws. If a laws made by parliament or state legislature violates any
provision of the constitution, the Supreme Court has power to declare such a law
invalid or ultra virus. So the process of judicial scrutiny of legislative acts is called
Judicial Review. Article 368 of the Constitution gives the impression that Parliament's
amending powers are absolute and encompass all parts of the document. But the
Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever
since independence. With the intention of preserving the original ideals envisioned by
the constitution-makers. The jurisdiction of Supreme Court is essential for protection
of basic features of the constitution.
• On the other hand Indira Government had been attempting to thwart this doctrine by
successive amendments of art. 368 starting with 24th amendment, 1971 and ending
with 42nd Amendment Act, 1976.The Court has adhered to this view notwithstanding
any of the amendments. Judicial tendency has arised of the Legislature to make
frequent amendments to the constitution, which was eating the vitals of the
constitution, which Supreme Court called Basic feature.16 Wide ranging arguments
before the Court in Keshavanand Bharati case for over 60 days both for and against
the validity of the Amendments Eleven Opinions were delivered by the Judges. Until
the case of Golak Nath, Supreme Court has been holding that no part of the
Constitution is unamendable, and Parliament can amend even the Fundamental Rights
by passing the Constitutional Amendments Act
• The new clause 31 C was added declaring that law giving effect to the state policy
towards Directive Principles contained in Art. 39(b) or (c) would be held void because
of inconsistency with arts. 14, 19 and 31. Further the declaration in law that it was
enacted to give effect to the policy towards securing these Directive Principles would
render the law immune from being challenged in any court on the ground that it did
not give effect to such policy.

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• The Supreme Court recognized Basic Structure dogma for the first time in the historic
Kesavananda Bharati case. Ever since the Supreme Court has been the interpreter of
the Constitution and the arbiter of all amendments made by parliament. The Supreme
Court declared that the amending powers under Article368 did not intend to 'damage',
'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework
of the constitution. This decision is not just a landmark in the evolution of
constitutional law, but indeed a turning point in the Constitutional history. ]
• Therefore, by going through all these case laws in the past, Judiciary is the sole
protector of Basic structure. But the Dogma of Basic Structure is nor exhaustive.
Judiciary, is going on expanding the horizons of the basic structure dogma, this leads
to loosening of the theory of Basic Structure. But, in the post era of liberalization, also
Judiciary depending upon the circumstances of each case has to determine what all
are the basic structure from time to time to preserve the aspirations of the framers as
well as to protect the rights of the citizens and to preserve public order, public policy,
morality ethics set out in the Constitution as the goals and aims of the Country as a
whole.
• Ordinary Law can be amended every now and then, but the Constitution is not
amended every now and then. “We are making this Constitution for centuries to come
and it cannot be easily amended as easily as we can amend a legislative enactment”. It
was thus discussed in the Constituent Assembly by the framers of the Constitution.
• Provisions for amendment of the constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the constitution. The time
is not static; it goes on changing .The social, economic and political conditions of the
people go on changing so the constitutional law of the country must also change in
order toward it to the changing needs, changing life of the people. If no provisions
were made for amendment of the constitution, the people would have recourse to
extra constitutional method like revolution to change the constitution.
• The framers of the Indian constitution were anxious tohave a document which could
grow with a growing nation, adapt itself to the changing circumstances of a growing
people. The Constitution has to be changed at every interval of time. Nobody can say
that this is the finality. A constitution which is static is a constitution which ultimately
becomes a big hurdle in the path of the progress of the nation.
• Therefore, it is to be understood that the ordinarily laws are enacted to meet certain
contingencies or situations or areas whereas the Constitution is framed for ages to

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 come and is designed to approach future contingencies. Therefore supremacy of
Constitution is undisputed and cannot be challenged in a court of law. In the Post
Liberalization period also, although there is a progress of the country, it should not be
at the cost of foregoing basic structure and loosening the thread of Democracy,
Republic, Secularism or Unity and Integrity, on which the foundation of our
Constitution lies.
• Any law made by the Legislature if repugnant to the Constitution will be void.
• In every Democratic form of Government, Constitution is a vital document, according
to which the country carries out its operation. Constitution protects the rights of the
citizens of a concerned nation.
• Thus, a Constitution can be safely described as a social contract between the
government and the people it governs. The significance of the Constitution is to lay
out the basic structure of the government according to which the people are governed.

Kesavananda Bharti v. Union of India, AIR 1973 SC 1461 (Justice Khanna and
Justice Matthew only)
BACKGROUND
 ‘The Doctrine of Basic Structure’ emerged from the landmark case of Shankari Prasad
v Union of India5, which started a gigantic legal battle between the judiciary and the
legislature in independent India. The issue of consideration which was presented
before the Court was ‘Whether the Fundamental Rights could be amended under
Article 368 of the Constitution?’ Validity of the First Amendment of the Constitution
in the year 1951 was challenged in this case which curtailed the Right to Property.
 The Supreme Court upheld the First Constitutional Amendment in the present case,
however, over the years it kept oscillating between the question whether Parliament
could amend Fundamental Rights through Article 368 or not.6 In the case of Sajjan
Singh v. State of Rajasthan7 Justice J.R. Mudholkar theorized the concept that the
Constitution of India had basic features.
 He questioned ‘whether making a change in the basic feature of the Constitution of
India could be regarded merely as an amendment or would it be, in effect, rewriting a
part of the Constitution, and if it fell within the latter, would it be within the purview
of Article 368?’

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 In this case, 17th Constitutional Amendment Act, 1964 was challenged wherein the
Supreme Court had upheld Shankari Prasad (Supra) and stated that Article 368 of
Constitution of India empowered Parliament to amend any Article of the Constitution.
It was also stated that Article 13 was limited to the Ordinary Laws.
 However, Justice M. Hidayatullah and Justice J.R. Mudholkar passed dissenting
opinion and stated that Fundamental Rights were really fundamental which were not
intended to be within the powers of amendment with other parts of the Constitution
and without the concurrence of States. The said dissenting opinion gave rise to the
biggest battel in Constitutional History since independence.
 In the case of I.C. Golaknath v State of Punjab9, the general premise was Justice J.R.
Mudholkar’s opinion on the basic feature which went to become the basic premise in
the Kesavananda Bharati case (Supra). The majority opinion in Golaknath (Supra)
reflected the uneasiness and skepticism in their minds about the then course of
Parliament. The majority raised a very serious question over the State that when rights
mentioned under Part III could not be affected by Parliament’s unanimous bill, then
even simple or special majority votes could not do so. On the other hand, the minority
opinion followed the earlier law laid down in Shankari Prasad case (Supra), thereby
holding that Parliament had the power to amend entire Constitution including
Fundamental Rights.
 After the unprecedented decision of Golaknath (Supra) case, Parliament passed series
of Amendments (24th, 25th and 29th Amendments) to indirectly overrule the said
decision.
 24th Amendment 1971
 The decision in the Golaknath (supra) judgment stated that every amendment under
Article 368 would be hit by the exception of Article 13 which stated that in any law
which violated the provision of Fundamental Rights, then that law would be void to
the extent of the violation. This Article played a crucial role in ensuring that
Parliament would be bound by the Fundamental Rights while exercising their law-
making power. To neutralize this Article, Parliament, by way of an amendment, added
Clause (4) to Article 13, which overrides the provision that any amendment under
Article 368 would not be challenged under Article 13 of the Constitution. In order to
remove all existing ambiguity, Parliament added clause 3 to Article 368 stating that
“Nothing in Article 13 shall apply to any amendment made under this Article.”
Parliament went on to amend Article 368(2) by differentiating between the procedure

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 in an Amendment and an Ordinary Law. Post the Amendment, the President could not
refuse or withhold the Amendment.
 25th Amendment 1972
 Earlier, Article 31 of the Constitution provided Fundamental Rights to Property and
expressed that any person whose property was acquired by the Government was
entitled to adequate compensation. By way of the 25th amendment, Parliament
curtailed the Fundamental Rights to Property and substituted the word ‘compensation’
with ‘amount’ which indicated that Government would be liable to pay a nominal
amount in case of acquisition of property for public purpose. Article 19 (1)(4) was
disassociated with Article 31(2). Further, Article 31 (c) was added stating that any law
passed to implement the objectives under Article 39 (a) and (b) could not be
questioned, challenged, or reviewed before the Court of law for violating
Fundamental Rights under Article 14,19 and 31. Though by way of the 44th
amendment, Parliament changed the Right to Property as a Constitutional Right under
Article 300A from a Fundamental Rights.12
 29th Amendment 1972
 By way of 29th Amendment, Parliament inserted Kerela Land Reforms (Amendment)
Act, 1969 and Kerela Land Reforms (Amendment) Act, 1971 in the 9th Schedule of
the Constitution which made it outside the purview of judicial scrutiny. The 9th
Schedule through Article 31A and 31B of the Constitution contains a list of Central
and State laws which fell outside the jurisdiction of judicial review.
 In a 13 Judge Bench14, only 9 judges signed the order, and the holding of the
majority was clear on the aspect that under Article 368 of the Constitution, Parliament
could not alter the ‘basic structure or framework’ of the Constitution but the same
could not be stated with confidence regarding the Fundamental Rights as they were
outside the scope of amending power. While commenting on the nature and features
of the Constitution of India and exploring the scope and ambit of the amending power
of Parliament, Justice Hegde and Mukherjea stated that our Constitution contains
certain features which were so essential that they could not be changed or destroyed
from within. In the case of Kesavananda Bharati case (Supra), the petitioner had
challenged the validity of many Central and Sate Amendments which included the
Kerala’s Land Reforms which permitted the government to grab hold of land.
 This case also challenged the validity of the 24th and the 25th Constitutional
Amendment along with the 29th Constitutional Amendment and contended that such

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 amendments were directly in violation of their Fundamental Rights. By way of this
landmark case, ‘Doctrine of the Basic Structure of the Constitution’ emerged. In a 13-
Judge Bench, the validity of the 29th Constitutional Amendment was upheld by 7
Judges, which indicated that its validity was not upheld unconditionally. It was held
that Parliament could amend every provision of the Constitution which was subject to
the condition that it does not violate ‘Basic Structure of the Constitution’. The
minority opinion was reluctant to grant complete and unfettered authority to
Parliament with respect to power of amendment.
 The Court upheld the entire 24th Constitutional amendment and partly found
the 25th Amendment to be ultra vires. Justice K.S. Hegde and Justice A.K.
Mukherjea explained that the Constitution of India was not merely a political
document but was a social document based on social philosophy. Every
philosophy like religion contains features that were basic and circumstantial.
While the former could not be altered, the latter could have. It was upon the
Courts to see whether a particular amendment violates Basic Structure or not.
 It was held by the apex court by a majority of 7:6 that Parliament can amend any
provision of the Constitution to fulfill its socio-economic obligations guaranteed to
the citizens under the Preamble subject to the condition that such amendment won’t
change the basic structure of the Indian Constitution.
 The majority decision was delivered by S.M. Sikri CJI, K.S. Hegde, B.K. Mukherjea,
J.M. Shelat, A.N. Grover, P. Jagmohan Reddy JJ. & Khanna J. Whereas, the minority
opinions were written by A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N.
Dwivedi & Y.V. Chandrachudjj. The minority bench wrote different opinions but was
still reluctant to give unfettered authority to the Parliament. The landmark case was
decided on 24th April 1973.
 The court upheld the 24th Constitutional Amendment entirely but the 1st and 2nd part
of the 25th Constitutional Amendment Act was found to be intra vires and ultra vires
respectively. It was observed by the court in relation to the powers of the Parliament
to amend the Constitution that it was a question that was left unanswered in the case
of Golaknath.
 The answer to the question was found in the present case and it was deduced by the
court that the Parliament has the power to amend the Constitution to the extent that
such amendment does not change the basic structure of the Indian Constitution. It was

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 laid down by the court that the Doctrine of Basic Structure is to be followed by the
Parliament while amending the provisions of the Constitution.

The Doctrine of Basic Structure

 According to the doctrine, the Parliament has an unlimited power to amend the
Constitution subject to the sole condition that such amendments must not change the
basic structure of the Constitution. The Parliament should not in any manner interfere
with the basic features of the Constitution without which our Constitution will be left
spiritless and lose its very essence. The basic structure of the Constitution was not
mentioned by the bench and was left to the interpretation of the courts. The Courts
need to see and interpret if a particular amendment violates the basic structure of our
Indian Constitution or not.
 The court found that as contended by the respondents actually there is a difference
between ordinary law and an amendment. Keshvananda Bharti’s case to some extent
overruled Golaknath’s case. The court, in this case, answered the question which was
left unanswered in Golaknath’s case in relation to the power of Parliament to amend
provisions of the Constitution.
 The court found that the word ‘amend’ which was included in Article 368 does not
refer to amendments that can change the basic structure of the constitution. If
Parliament wants to amend a particular provision of the Constitution then such
amendment would need to go through the test of basic structure.
 It was also decided that since the Parliament has an unlimited power to amend the
Constitution subject to the basic structure then Parliament can also amend
Fundamental Rights as far as they are not included in the basic structure of the
Constitution. 24th Amendment was upheld by the Bench whereas the 25th
Amendment’s 2nd part was struck down. The 25th Amendment’s validation was
subjected to two conditions:
• The court agreed that the word amount and compensation is not equivalent to each
other but still the amount which is provided by the Government to the landlords
should not be unreasonable. The amount need not be equal to the market value but
should be reasonable and closely related to the present market value.
• The 1st part of the 25th Amendment was upheld but it was subject to the provision
that the prohibition of judiciary’s reach will be struck down.

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  It was also decided that since the Parliament has an unlimited power to amend the
Constitution subject to the basic structure then Parliament can also amend
Fundamental Rights as far as they are not included in the basic structure of the
Constitution. 24th Amendment was upheld by the Bench whereas the 25th
Amendment’s 2nd part was struck down. The 25th Amendment’s validation was
subjected to two conditions:
• The court agreed that the word amount and compensation is not equivalent to each
other but still the amount which is provided by the Government to the landlords
should not be unreasonable. The amount need not be equal to the market value but
should be reasonable and closely related to the present market value.
• The 1st part of the 25th Amendment was upheld but it was subject to the provision
that the prohibition of judiciary’s reach will be struck down.

Justice Khanna
 I find it difficult to accept the contention that an amendment of Constitution made in
accordance with Article 368 constitutes law for the purpose of Article 13(2). The
word "law" although referred to in a large number of other articles of the Constitution
finds no mention in Article 368.According to that article, the Constitution shall stand
amended in accordance with the terms of the Bill after it has been passed in
compliance with the provisions of that article. Article 368 thus contains an indication
that what follows as a result of the compliance with Article 368 is an amendment of
the Constitution and not law in the sense of being ordinary legislation. In a generic
sense. "law" would include Constitutional laws, including amendment of the
Constitution, but that does not seem to be the connotation of the word "law" as used
in Article 13(2) of the Constitution. There is a clear distinction between statutory law
made in exercise of the legislative power and Constitutional law which is made in
exercise of the constituent power and the distinction should not be lost sight of A
Constitution is the fundamental and basic law and provides the authority under which
ordinary law is made.
 The Constitution has thus made it clear in matters in which there could be some doubt
as to what would constitute "law". If it had been the intention of the framers of the
Constitution that the "law" in Article 13 would also include Constitutional law
including laws relating to the amendment of Constitution, it is not explained as to why
they did not expressly so state in Clause (a) of Article 13(3). The Constitution itself

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 contains indications of the distinction between the Constitution and the laws framed
under the Constitution. Article 60 provides for the oath or affirmation to be made and
subscribed by the President before entering upon office. The language in which that
oath and affirmation have been couched, though not crucial, has some bearing.
 The language of Article 13(2) shows that it was not intended to cover amendments of
the Constitution made in accordance with Article 368. It is difficult to accede to the
contention that even though the framers of the Constitution put no express limitations
in Article 368 on the power to make amendment, they curtailed that power by
implication under Article 13(2). In order to find the true scope of Article 13(2) in the
context of its possible impact on the power of amendment, we should read it not in
isolation but along with Article 368.
 If Parliament by a two-thirds majority in each House and by following the procedure
laid down in Article 368 cannot amend Part III of the Constitution so as to take away
or abridge fundamental rights, it is not understood as to how the same Parliament can
by law create a body which can make the requisite amendment. If it is not within the
power of Parliament to take away or abridge fundamental rights even by a vote of
two-thirds majority in each House, would it be permissible for the same Parliament to
enact legislation under entry 97 List I of Seventh Schedule by simple majority for
creating a Constituent Assembly in order to take away or abridge fundamental rights ?
Would not such a Constituent Assembly be a creature of statute made by parliament
even though such a body has the high-sounding name of Constituent Assembly ? The
nomenclature of the said Assembly cannot conceal its real nature as being one created
under a statute made by the Parliament. A body created by the Parliament cannot have
powers greater than those vested in the Parliament. It is not possible to accept the
contention that what the Parliament itself could not legally do, it could get done
through a body created by it. If something is impermissible, it would continue to be so
even though two steps are taken instead of one for bringing about the result which is
not permitted.
 This apart, there are many articles of the Constitution, for the amendment of which
ratification by not less than half of the State Legislatures is required. The provision
regarding ratification in such an event would be set at naught. There would be also
nothing to prevent Parliament while making a law for convening a Constituent
Assembly to exclude effective representation or voice of State Legislatures in the
convening of Constituent Assembly.

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 argument has then been advanced that if power be held to be vested in Parliament
under Article 368 to take away or abridge fundamental rights, the power would be, or
in any case could be, so used as would result in repeal of all provisions containing
fundamental rights. India, it is urged, in such an event would be reduced to a police
state wherein all cherished values like freedom and liberty would be non-existent.
This argument, in my opinion, is essentially an argument of fear and distrust in the
majority of representatives of the people. It is also based upon the belief that the
power under Article 368 by two-thirds of the members present and voting in each
House of Parliament would be abused or used extravagently. I find it difficult to deny
to the Parliament the power to amend the Constitution so as to take away or abridge
fundamental rights by complying with the procedure of Article 368 because of any
such supposed fear or possibility of the abuse of power.
 The words "amendment of the Constitution" with all their wide sweep and amplitude
cannot have the effect of destroying or abrogating the basic structure or framework of
the Constitution. It would not be competent under the garb of amendment, for
instance, to change the democratic government into dictatorship or hereditary
monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha.
The secular character of the state according to which the state shall not discriminate
against any citizen on the ground of religion only cannot likewise be done away with.
Provision regarding the amendment of the Constitution does not furnish a pretence for
subverting the structure of the Constitution nor can Article 368 be so construed as to
embody the death wish of the Constitution or provide sanction for what may perhaps
be called its lawful harakiri. Such subversion or destruction cannot be described to be
amendment of the Constitution as contemplated by Article 368.
 The words "amendment of this Constitution" and "the Constitution shall stand
amended" in Article 368 show that what is amended is the existing Constitution and
what emerges as a result of amendment is not a new and different Constitution but the
existing Constitution though in an amended form. The language of Article 368 thus
lends support to the conclusion that one cannot, while acting under that article, repeal
the existing Constitution and replace it by a new Constitution.
 It has not been disputed during the course of arguments that the power of amendment
under Article 368 does not carry within itself the power to repeal the entire
Constitution and replace it by a new Constitution. If the power of amendment does
not comprehend the doing away of the entire Constitution but postulates retention or

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 continuity of the existing Constitution, though in an amended form, question arises as
to what is the minimum of the existing Constitution which should be left intact in
order to hold that the existing Constitution has been retained in an amended form and
not done away with. In my opinion, the minimum required is that which relates to the
basic structure or framework of the Constitution. If the basic structure is retained, the
old Constitution would be considered to continue even though other provisions have
undergone change. On the contrary, if the basic structure is changed, mere retention of
some articles of the existing Constitution would not warrant a conclusion that the
existing Constitution continues and survives.
 The word "amendment" in Article 368 must carry the same meaning whether the
amendment relates to taking away or abridging fundamental rights in Part III of the
Constitution or whether it pertains to some other provision outside Part III of the
Constitution. No serious objection is taken to repeal, addition or alteration of
provisions of the Constitution other than those in Part III under the power of
amendment conferred by Article 368. The same approach, in my opinion, should hold
good when we deal with amendment relating to fundamental rights contained in Part
III of the Constitution. It would be impermissible to differentiate between scope and
width of power of amendment when it deals with fundamental right and the scope and
width of chat power when it deals with provisions not concerned with fundamental
rights.
 Distinction has been made on behalf of the petitioners between a fundamental right
and the essence, also described as core, of that fundamental right. It is urged that even
though the Parliament in compliance with Article 368 has the right to amend the
fundamental right to property, it has no right to abridge or take away the essence of
that right. In my opinion, this differentiation between fundamental right and the
essence or core of that fundamental right is an over-refinement which is not
permissible and cannot stand judicial scrutiny. If there is a power to abridge or take
away a fundamental right, the said power cannot be curtailed by invoking the theory
that though a fundamental; right can be abridged or taken away, the essence or core of
that fundamental right cannot be abridged or taken away.
 The essence or core of a fundamental right must in the nature of things be its
integral part and cannot claim a status or protection different from and higher
than of the fundamental right of which it is supposed to be the essence or core.
There is also no objective standard to determine as to what is the core of a

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 fundamental right and what distinguishes it from the periphery. The absence of
such a standard is bound to introduce uncertainty in a matter of so vital an
importance as the amendment of the Constitution. I am, therefore, unable to
accept the argument, that even if a fundamental right be held to be amendable,
the core or essence of that right should be held to be immune from the
amendatory process.

Justice Mathew
 The proviso to Article 368 used the expression 'change' and that could indicate that
the term 'amend' really means 'change'. The main part of Article 368 thus gave power
to amend or to make changes in the Constitution. Normally, a change is made with the
object of making an improvement; at any rate, that is the professed object with which
an amendment is sought to be made. The fact that the object may not be achieved is
beside the point. Amendment contains in it an element of euphemism of conceit in the
proposer, an assumption that the proposal is an improvement.
 As already stated, a simple repeal or abrogation without more, would be contrary to
the terms of Article 368 because it would violate the Constitutional provision that "the
Constitution shall stand amended". 1631. Even if the word 'amendment' in Article
368 as it stood originally was wide enough to empower the amending body to amend
any of the provisions of the Constitution, it was submitted by the petitioner,
that Article 13(2) was a bar to the amendment of the Fundamental Rights by
Parliament in such a way as to take away or abridge them: 13(2) The State snail not
make any law which takes away or abridges the rights conferred by this Part and any
law made in contravention of this clause shall, to the extent of the contravention, be
void.
 If counsel for the petitioner is right in his submission that the power to amend the
amending power is limited, this cannot be done, for the Constitution would lose its
identity by making such a radical change in the Constitution of the Amending Body,
and, therefore, there would be implied limitation upon the power to amend the
amending power in such a way as to change the locus of the power to amend from the
Amending Body as constituted to any other body including the people. The result is
that ex-hypothesi, under Article 368 there was, or is, no power to amend the
Fundamental Rights and the other essential or basic features in such a way as to
destroy or damage their essence or core. Nor can the article be amended in such a way

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 as to invest the people-the legal sovereign according to counsel for the petitioner-with
power to do it. This seems to me to be an impossible position.

Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 (Justice Matthew, Justice Khanna
and Justice Chandrachud only)
 This case questioned so many integral aspects of the Constitution such as its Basic
structure, power of jurisdiction of courts, separation of three organs of the state that
are: Legislative, executive and judiciary, functions of Legislature, right to free and fair
elections, rule of law and judicial review and lastly, political justice.
Doctrine of Basic Structure
 The Doctrine of Basic structure says that Parliament's unlimited power to amend the
Constitution is subject to restriction, which means it should not violate the basic
structure of the Constitution. This doctrine was laid down in the Keshvananda
Bharti case[1]

Article 368 of the Constitution gives power to the Parliament to revise the
Constitution by expansion, variety or annulment of any provision as indicated by the
procedure set down in that.
It was expressed that Clause(4) of Article 329-A needs to be struck down as it violated
the standard of free and fair elections which is an integral part of the basic structure of
the Constitution. It is seen that the only way to resolve any dispute which arises in an
election is via judicial review and article 329-A snatches away these rights from the
court. Free and fair elections are the key features of a democracy and it is important
that if elections are won by malice, judiciary has to intervene to ensure justice is
served.

It was argued by the respondent that relying on the 1973 judgment of Kesvananda
Bharti, contended that the Parliament under Article 368 is only competent to lay down
�general principles' which governs the organs of the state. Therefore, whether the
determination is valid or not is a judicial prerogative under Article 329 and 136, the
said amendment tends to disrupt the democratic structure of the nation.

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  When the 39th Amendment was passed by the Indira Gandhi Government, most of the
members of the Parliament were absent and arrested under Preventive detention. It
was seen that this amendment destroyed separation of powers and judicial review
which also are an integral part of the basic structure of the Constitution. It destroyed
the notion of equality whereas there isn't supposed to be differences between people
holding high offices and people who are elected to the Parliament.

Since most of the opposition MP's were under preventive detention, they could not
vote in the parliamentary proceedings and give their opinions regarding the
amendment which benefited the Congress party. This was claimed by Raj Narain.
However, the court said that this matter was related between both the Houses of
Parliament was cannot be interfered upon by the judiciary.
 The court provided its judgement on 7th November, 1975 and was the first case in
which the landmark decision of Kesvananda Bharti case was applied. The apex court
upheld the contention of the respondent and declared clause (4) of Article 329-A as
unconstitutional.
 Mathew J said that Article 329-A(4) destroyed the basic structure of the constitution.
He was of the view that a healthy democracy' can only function when there is
possibility of free and fair elections and the impugned amendment destroyed that
possibility.
 Chandrachud J. found that the amendment was violative of the principle of separation
of powers' as it wilfully transferred a function into the hands of the legislative which
was purely judicial. He was also of the view that the amendment is violative of Article
14 as it creates unequal positions of specific members of the Parliament against
others.

Justice Mathew
 I think the inhibition to destroy or damage the basic structure by an amendment of the
Constitution flows from the limitation on the power of amendment under Article
368 read into it by the majority in Bharati's case (supra) because of their assumption
that there are certain fundamental features in the Constitution which its makers
intended to remain there in perpetuity. But I do not find any such inhibition so far as
the power of Parliament or State Legislatures to pass laws is concerned. Article
245 and 246 give the power and also provide the limitation upon the power of these

228
 organs to pass laws. It is only the specific provisions enacted in the Constitution
which could operate as limitation upon that power. The preamble, though a part of the
Constitution, is neither a source of power nor a limitation upon that power. The
preamble sets out the ideological aspirations of the people. The essential features of
the great concepts set out in the preamble are delineated in the various provisions of
the Constitution.
 I do not think that an ordinary law can be declared invalid for the reason that it goes
against the vague concepts of democracy; justice, political, economic an social;
liberty of thought, belief and expression; or equality of status and opportunity, or
some invisible radiation from them.”
 If "constituent power", by itself, is so transcendental and exceptional as to be above
the provisions of the Constitution itself, it should not, logically speaking, be bound
even by the procedure of amendment prescribed by Article 368(2). I have not found
any opinion expressed so far by any learned Judge of this Court to show that the
constituent power is not bound by the need to follow the procedure laid down
in Article 368(2) of the Constitution. Indeed, rather inconsistently with the theory of
an absolute and unquestionable power in some undifferentiated or raw and unfettered
form, operating from above and outside the Constitution, learned Counsel, supporting
the impugned fourth clause in Article 329A, concede that the constituent power is
bound by the appropriate procedure laid down in Article 368 for the amendment of
the Constitution. What they urge is that, subject to this procedure, which has been
followed here, the constituent power cannot be questioned because it is a "sovereign
power".
 The "constituent power" is still bound by the exclusively prescribed procedure to
"amend by way of addition, variation, or repeal" any elaborately set out in clause (2).
In fact, Article 368 contains so much of the fundamental law-making or legislative
procedure that five judges of this Court, led by Subba Rao, C.J., opined in Golaknath's
case (supra), that it was confined to procedure and did not contain at all the
substantive power to amend. Clause (1) of Article 368, introduced by the Twenty-
fourth Amendment, was, apparently, meant to remove this objection and to do no
more. It could be intended to pour some new amalgam of executive and judicial or
quasi-judicial substantive powers into it also by some implication so as to do away
with the very need for such an elaborate and carefully drawn up Constitution such as
ours. The absence of any quasi- judicial procedure, from the comprehensively framed

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 procedural provisions of Article 368, seems extremely significant. It indicates that it
was clear intentiom.

Justice Khanna
 All the seven Judges who constituted the majority were also agreed that democratic
set-up was part of the basic structure of the Constitution. 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 and are not mere
rituals calculated to generate illusion of defe ion arises whether a member of a House
of Parliament has become disqualified for membership, the decision of that House
shall be taken and shall be final.
 The vice of clause (4) of Article 329A is not merely that it makes the previous law
contained in the R. P. Act as amended by Act 58 of 1974 and 40 of 1975 inapplicable
to the challenge to the election of the appellant, it also makes no other election law
applicable for resolving that dispute. The further vice from which the said clause
suffers is that it not merely divests the previous authority, namely, the High Court of
its jurisdiction to decide the dispute relating to the election of the appellant, it confers
no jurisdiction on some other authority to decide that dispute. Without even
prescribing a law and providing a forum for adjudicating upon the grounds advanced
by the respondent to challenge the election of the appellant, the constituent authority
has declared the election of the appellant to be valid.

Justice Chandrachud
 At first flush, what remains to be decided judicially in face of the Thirty-ninth
Amendment? As an exercise of constituent power, the Thirty- ninth Amendment must
reign supreme. The political sovereign having reposed its trust in the legal sovereign,
the doings of the Constituent Assembly have an aura of sanctity that legal ingenuity
may be powerless to penetrate. But that is an uninformed approach to field strewn
with various shades of legal landmarks.

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  I consider it beyond the pale of reasonable controversy that if there be any
unamendable features of the Constitution on the score that they form a part of
the basic structure of the Constitution, they are that : (i) India is a sovereign
democratic republic; (ii) Equality of status and opportunity shall be secured to
all its citizens; (iii) The State shall have no religion of its own and all persons
shall be equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion and that (iv) the nation shall be governed by a
Government of laws, not of men. These, in my opinion, are the pillars of our
constitutional philosophy, the pillars, therefore, of the basic structure of the
Constitution.

Minerva Mills v. Union of India, AIR 1980 SC 1789

 Fundamental Rights are the essence of the Constitution and should be considered
more than a directive principle because they can be enforced by the Court. The three
organs of the Constitution include legislation, executive, and judiciary. It is important
that there should be a right balance between them. There have been instances where
the executive and legislative have committed action in order to expand power over the
other organs. To protect the rights of the individual judiciary have time and again
taken steps to protect those rights. In the case of Minerva Mills vs Union of India a
similar attempt was made to exploit the power of the Parliament.
 Minerva mills is a textile mill located near the Bengaluru city. The Central
Government considering the substantial fall in the production of Minerva mills
appointed a committee under Section 15 of the Industries Development Act,1951 this
was done in the year 1970. The committee submitted its report to the Central
Government in October 1971. The Central Government authorized the National
textile Corporation Limited which was a body formed under the Industries
Development Act,1951 to take over the management of Minerva mills. In the 39th
amendment, nationalization was included in the ninth schedule which was outside the
purview of judicial review. After a huge setback in Indira Gandhi vs Raj Narain to
have supreme power, a 42nd amendment was passed in the parliament which
amended Article 31C through Section 4 of the Constitutional amendment Act,
1976.Further Section 55 of the 42nd Constitutional Amendment Act, 1976 made
amendments in Article 368.
 Amended Article 31C read as:

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 No law giving effect to the policy of the State towards securing (all or any principles
laid down in Part (IV) shall be deemed to void on the ground that it is inconsistent or
abridges any right which is conferred under Article 14 or Article 19; no law
containing the declaration that it giving effect to such policy shall be called in the
question in the in any court on the ground that it does not give effect to such policy.
 Proviso: that where such laws are made by the legislature of a State, the provisions of
these Articles shall not apply thereto unless such law, having time being reserved for
the consideration of the president has received his assent.
 This amendment meant that no laws that gave effect to the directive principle could be
struck down by a court on the basis that it violated the right to freedom of speech or
right to equality.
 Amended Article 368 of the Indian Constitution there was an insertion of clauses (4)
and (5) read as:
 (4) No amendment of this Constitution including the provisions of part III made or
purporting have been made under this article whether before or after Section 55 of the
Constitution shall be called in question in any court on any ground.
 (5) For removal of doubts, it is hereby declared that there shall be no limitation
whatever on the constituent power of parliament to amend by addition variation or
repeal the provision of the Constitution under this article.
 The amendment made in Article 368 would nullify the effect of the Kesavananda
Bharati Judgment.
 Whether insertion made under Article 31C and Article 368 through sections 4 and 55
of the 42nd Amendment Act, 1976 does hamper the basic structure doctrine?
 Whether the Directive Principle of the State policy has primacy over Fundamental
right to the Indian Constitution?
 After almost 7 years from the passage of the order passed by the Central
Government to conduct the investigation. The decision was pronounced by a five
judge bench of the Supreme Court with the Majority of 4:1.
 Article 368 of the Indian Constitution
 The parliament has the power to amend the Constitution but should be within its basic
framework.
 The theory of unlimited power to amend the Constitution would alienate democracy
and create a totalitarian State.

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  The clause (5) is unconstitutional because it hampers the basic structure of the
Constitution.
 The clause (50 was struck down as because it restricted the court’s power of judicial
review on and amendment.
 Article 31C of the Indian Constitution
 If part IV subverts Part III of the Indian Constitution it would destroy the basic
structure.
 If part IV needs to be achieved without the abrogation of Part II of the Constitution.
 The most elementary freedoms provided under Article 19 and 14 of the Indian
Constitution therefore they should be preserved.
 Article 31 C of the Indian Constitution has removed two sides of the golden
triangles(Article 19, 14, and 21) which will cause serious harm to the people of this
country.
On 31st July 1980, the Court pronounced its Judgment:
• Sections 4 and 55 of the 42nd Amendment Act, 1976 is unconstitutional.
• The writ petition challenging the validity of Sections 5(b), 19(3) 21, 25, and 27 (read
with 2nd schedule of the nationalization act, 1974 was dismissed by the court.

The Concept of basic structure

• The rule of law.
• Separation of power between the Centre and the State.
• The balance between Fundamental Rights and the Directive principle of the State
policy.
• Right to have free and fair elections.
• The Parliamentary system of government.
• Powers of the Supreme Court under Article 32, 147, 142 and 136 of the Indian
Constitution.
• Power of the High Court under Article 226 and 227 of the Indian Constitution.
• Article 14 right to equality.
• Limited power of the parliament to amend the Constitution.
• Unity and Integrity of the nation.
• Secularism and Socialism.
• Preamble

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Case Laws

M. Nagaraj v. Union of India, AIR 2007 SC 71

• In 2006, the Court delivered its judgment in M. Nagaraj v. Union of India. In it, the
Court validated Parliament’s decision to extend reservations for SC/STs to include
promotions (reservation in promotion). However, the Court also laid down conditions
which made it difficult for the Central and State Governments to grant such
reservations.
• Specifically, the Nagaraj judgement laid down three controlling conditions that the
State must meet prior to granting a SC/ST a reservation in promotion. First, the State
must show the backwardness of the class. Second, it must show that the class is
inadequately represented in the position/service for which reservations in promotion
will be granted. Finally, it must show that the reservations are in the interest of
administrative efficiency.
• The Constitutional Bench in Nagaraj validated the following constitutional
amendments made by Parliament:
• The Constitutional Bench in Nagaraj validated the following constitutional
amendments made by Parliament:
• The Constitution (Seventy Seventh Amendment) Act, 1995 which inserted Article
16(4A);
• The Constitution (Eighty First Amendment) Act, 2000 which added Article 16(4B);
• The Constitution (Eighty Second Amendment) Act, 2000 which inserted a proviso to
Article 335;
• The Constitution (Eighty Fifth Amendment) Act, 2001 which added “consequential
seniority” for SC/STs under 16(4B).
• Parliament made these amendments to nullify the effect of the Court’s judgement
in Indra Sawhney. In Indra Sawhney, a nine-judge Bench had ruled that reservations
in appointments, granted to the State by Article 16(4), do not apply to promotions.
• Article 16(4A) enables the State to make any law regarding reservation in promotion
for SC/STs. Article16(4B) provides that reserved promotion posts for SC/STs that
remain unfilled, can be carried forward to the subsequent year. Article 16 (4B) also
ensures that the ceiling on the reservation quota — capped at 50% by Indra

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 Sawhney — for these carried forward unfilled posts does not apply to subsequent
years.
• Article 335 mandates that reservations have to be balanced with the ‘maintenance of
efficiency’. The 2001 amendment to Article 335 clarified that the Article will not
apply to the State relaxing evaluation standards ‘in matters of promotion’.
• The current issue arose from an appeal by the State of Tripura against the judgment of
the Tripura High Court. The Tripura High Court had struck down Section 4(2) of the
Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services
and Posts) Act, 1991 as being in violation of the three controlling conditions laid
down in Nagaraj.
• A Division Bench of the Supreme Court, comprising of Justices Kurian
Joseph and R. Banumathi, heard the appeal and decided to refer the case to a
Constitution Bench on 14th November 2017. Various other matters were tagged to the
appeal.
• The Division Bench called on the Constitution Bench to revisit Nagaraj. It observed
that the Bench in Nagaraj had failed to refer to the earlier EV
Chinnaiah case. Further, the Constitution Bench was tasked with evaluating
whether Nagaraj violates Indra Sawhney. The question was whether Nagaraj failed to
recognize SC/STs inherent underprivilege, by requiring the State to reassess the
backwardness of SC/STs, and thereby violated Indra Sawhney?
• On September 26th 2018, the Court delivered its verdict. It did not call for a review
of Nagaraj. Further, it struck down the demonstration of backwardness provision
from Nagaraj. However, while doing so, it introduced the creamy layer exclusion
principle, thus requiring that the State does not extend reservations in promotion to
SC/ST individuals who belong to the creamy layer of the said SC/ST.
• Since the judgment in Nagaraj, many States have found it difficult to satisfy the
conditions it laid down. Various High Courts have struck down policies providing
reservation in promotions. These decisions came on appeal to the Supreme Court. The
Court decided to hear this application along with petitions seeking clarifications
on Jarnail Singh.
• In September 2021, the Court refused to reconsider Jarnail Singh. However, it agreed
to hear arguments on whether any clarifications were necessary. The Bench hearing
these arguments consists of Justices Nageswara Rao, B.R. Gavai and Sanjiv Khanna.

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 • The Court will broadly address two questions. First, what does inadequate
representation in a class of posts mean and how can it be proved? Second, what
does maintaining efficiency in administration mean, and how can it be
guaranteed?

IS EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC

STRUCTURE OF THE CONSTITUTION?
• At the outset, it may be noted that equality, rule of law, judicial review and separation
of powers are distinct concepts. They have to be treated separately, though they are
intimately connected. There can be no rule of law if there is no equality before the
law; and rule of law and equality before the law would be empty words if their
violation was not a matter of judicial scrutiny or judicial review and judicial relief and
all these features would lose their significance if judicial, executive and legislative
functions were united in only one authority, whose dictates had the force of law. The
rule of law and equality before the law are designed to secure among other things
justice both social and economic. Secondly, a federal Constitution with its distribution
of legislative powers between Parliament and State legislatures involves a limitation
on legislative powers and this requires an authority other than Parliament and State
Legislatures to ascertain whether the limits are transgressed and to prevent such
violation and transgression.
• In the case of Minerva Mills7, Chandrachud, C.J., speaking for the majority, observed
that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are
elementary for the proper and effective functioning of democracy. They are
universally regarded by the universal Declaration of Human Rights. If Articles 14 and
19 are put out of operation, Article 32 will be rendered nugatory. In the said judgment,
the majority took the view that the principles enumerated in Part-IV are not the
proclaimed monopoly of democracies alone. They are common to all polities,
democratic or authoritarian. Every State is goal-oriented and every State claims to
strive for securing the welfare of its people. The distinction between different forms
of Government consists in the fact that a real democracy will endeavour to achieve its
objectives through the discipline of fundamental freedoms like Articles 14 and
without these freedoms, democracy is impossible. If Article 14 is withdrawn, the
political pressures exercised by numerically large groups can tear the country apart by

236
 leading it to the legislation to pick and choose favoured areas and favourite classes for
preferential treatment.
• The theory of basic structure is based on the principle that a change in a thing
does not involve its destruction and destruction of a thing is a matter of
substance and not of form. Therefore, one has to apply the test of overarching
principle to be gathered from the scheme and the placement and the structure of
an Article in the Constitution. For example, the placement of Article 14 in the
equality code; the placement of Article 19 in the freedom code; the placement
of Article 32 in the code giving access to the Supreme Court. Therefore, the
theory of basic structure is the only theory by which the validity of impugned
amendments to the Constitution is to be judged.
• A working test has been evolved by Chandrachud, J. in the Election Case14, in
which the learned Judge has rightly enunciated, with respect, that "for
determining whether a particular feature of the Constitution is a part of its basic
structure, one has per force to examine in each individual case the place of the
particular feature in the scheme of the Constitution, its object and purpose and
the consequences of its denial on the integrity of the Constitution as a
fundamental instrument of the country's governance."

I. R. Cohelo v. Union of India, (2007) 2 SCC 1

• The nine judges' Bench presided by Mr. Justice Y.K. Sabharwal, the then C.J.I.
delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. v. State of
Tamil Nadu and others, upholding the 'Basic Structure Doctrine', and the authority of
the judiciary to review any such laws , which destroy or damage the basic structure as
indicated in Art.21 read with Art.14, Art.19 and the principles underlying there under,
even if they have been put in 9th Schedule after 14th April, 1973. This case is
popularly known as The Ninth Schedule Case.

This case is famously known as the Ninth Schedule case due of the politics involved
and the exhaustive discussions on the validity of the Article 31 (b) of our Indian
Constitution.
• The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act, 1969,
in so far as it vested forest lands in the Janman estates in the State of Tamil Nadu, was
struck down by the Court in Balmadies Plantations Ltd and Anr. v. State of Tamil

237
 Nadu because this was not found to be a measure of agrarian reform protected by
Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding
Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary
and, therefore, unconstitutional and the special leave petition filed against the
judgment by the State of West Bengal was dismissed.
• Consequently, by the Constitution (Thirty-Fourth 34th Amendment) Act, and the
Constitution (Sixty – Sixth 66th Amendment) Act, the Janman Act and the West
Bengal Land Holding Revenue, Act. 1979, in its entirety was inserted in the Ninth
Schedule. These insertions were the subject matter of challenge before a Five Judges
Bench. It rests on two counts:
• (1) Judicial review is a basic feature of the Constitution and to insert 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.
• (2) To insert in the Ninth Schedule after 24.4.1973, an Act which, or part of
which, has been struck down as being violative of the fundamental rights
conferred by Part III of the Constitution is to destroy or damage its basic
structure.
• The Constitution Bench observed that, according to Waman Rao and v/s Union of
India. Amendments to the Constitution made on or after 24th April, 1973, inclusion of
various Acts, regulations therein are open to challenge on the ground that they, or any
one or more of them, are beyond the Constituent Power of Parliament since they
damage the basic or essential features of the Constitution or its basic structure. But,
subsequently in the decisions of Minerva Mills Ltd v/s Union of India.
• And Maharao Sahib Shri Bhim Singhji v. Union of India. it was observed that the
judgment in Waman Rao needs to be reconsidered by a larger Bench, and that if any
act, rules or regulations inserted in the Ninth Schedule is found to be violative of
Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only
constitutional amendment amending the Ninth Schedule which damages or destroys
the basic structure of the Constitution that can be struck down.
• 1. Is it permissible to make the 9th Schedule immunized from the Judicial
Review of the Supreme Court?
• No, it is absolutely not permissible to make the Ninth Schedule immunized from the
Judicial Review of the Constitution.

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• As it has been said that the Doctrine of Basic Structure is the very essence of the
Constitution of India and therefore, there cannot be any act, rules or regulations which
can overrule the Basic Structure doctrine. Since, the Fundamental Rights forms a part
of the Basic structure, therefore, every act inserted in the Ninth Schedule has to
undergo the Fundamental Rights test.
• The Fundamental Rights test means that the law etc. which has been inserted in the
Ninth Schedule has to be tested that whether they are transgressing their border and
violating the Part III of the Constitution. If they are seen and observed that they are
doing so then, that law, rule or regulation would be said to be inconsistent to the
Fundamental Rights and hence liable to be struck down from the Constitution.
• As Hon'ble Justice Khanna in Kesavananda Bharti v. State of Kerala had observed
that the Legislature can frame any law for any part of the country, but that law should
not violate the Fundamental Rights of the citizens of India. The power to make any
law at will that transgresses Part III in its entirety or even partially, would be
incompatible with the Basic Structure of the Constitution.
• As we all know, that all those rules, acts etc. which are not in consistence with Article
14, 19 or 31 are to be placed in the Ninth Schedule, the basic motive behind inserting
the Ninth Schedule in the Constitution, and then to insert the laws which are not in
consistent with Fundamental Rights was to make all those laws, rules and regulations
immune from the Supreme Court's power of Judicial Review.
• Since, Ninth Schedule is the part and the parcel of the Indian Constitution, no
additions or alterations can be made therein without complying with the restrictive
provisions governing the amendments of the Constitution. The Basic Feature
phenomenon cannot be altered with the wish of the Legislature under Article 368 of
the Constitution.
• The Amendment provision is there only for making the Constitution and the
provisions more effective and useful for the society. And therefore, this provision
should not in contrary provide the abrogation and destruction to the Constitution and
the citizens who are governed by it.
• The legislature and the executive are politically partisan bodies. They have certain
commitment and some programmes which they wish to implement. They therefore
cannot be trusted with the final power of the constitutional interpretation. They often
bend the constitution to suit their own ends and policies. The judiciary therefore can
be expected to expound the constitution with a sense of detachment.

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• It is not settle that power of Judicial Review is part of basic structure of the
constitution and this said power cannot be taken away even by a constitutional
amendment. It is the duties of the Supreme Court to upheld the constitutional values
and enforce constitutional limitation as the ultimate interpreter of the constitution. The
degree of invasion is for the court to decide.
• The greater the invasion into the essential freedoms, greater is the need for
justification and determination by court whether invasion was necessary and if so,
then to what extent.
• The Framers of the Constitution have built a wall around certain parts of the
Fundamental Rights, which have to remain forever, limiting ability of majority to
intrude upon by them. Therefore, every inclusion in the Ninth Schedule is subject to
the Judicial Review and hence triggers Article 32 in the field.
• Therefore, the amendment of the Constitution should be said to be ultra virus if
the amendment transgress the boundaries of the limitations which has been
imposed on the amending power on the touch stone of the Constitution.
• Whether the Basic Structure test would include Judicial Review of Ninth Schedule
laws on the touchstone of the Fundamental Rights?
• Yes, the Basic Structure test would include Judicial Review of Ninth Schedule laws
on the touchstone of the Fundamental Rights.
• Basic Structure is the very basic and also the most important organ of the
Constitution. On the contrary, the definition has not been given anywhere in the
Constitution, but the Supreme Court in the Kesavananda Bharti v. State of Kerala
[A.I.R. 1973 S.C. 1461] case sought to define the Basic Structure. The consequence
of the evolution of the principles of Basic Structure is that Ninth Schedule laws
cannot be conferred with constitutional immunity of the kind created by Article 31B.
• The court held that the Basic Structure is the fundamental aspects of the Constitution
which cannot be abridged or destroyed. Some of the phenomenon of the Basic
Structure is Judicial Review; Arts.32 and 226; Federalism; Secularism; The sovereign,
democratic, republican structure; Freedom and dignity of the individual; Unity and
integrity of the Nation.
• Looking upon Justice Khanna's opinion in the Kesavananda Bharti's case, we can
notice that the fundamental rights can be amended, abrogated or abridged so long as
the Basic Structure of the Constitution is not destroyed. Moreover, Article 32 is the

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 very part of the Fundamental Rights chapter and therefore, the inclusion of an act in
9th Schedule does not exclude the check of Part III including that of Art.32.
• Whether the Basic Structure test would include Judicial Review of Ninth Schedule
laws on the touchstone of the Fundamental Rights?
• The absence of such guidelines for exercising such power means absence of
constitutional control would result in destruction of constitutional supremacy and
creation of parliamentary hegemony. The Parliament has the power to amend the
provisions of Part III, but subject to the limitations of the Basic Structure doctrine.
Since full judicial review is also integral part of the constitutional scheme, the essence
of the principles behind Art.14, 19 and 21 are also part of Basic Structure.
• A law inserted in the Ninth Schedule or in any other part of the Constitution would
either abrogate or abridge the rights guaranteed in the Part III of the Constitution may
violate the Basic Structure doctrine or may not. If the above condition is tested to be
positive, then law would be in validated by the Judicial Review power of the court.
• The Constitutional validity of the Ninth Schedule laws on the touchstone of the Basic
Structure doctrine, which can be adjudged by applying the direct impact and effect of
the right's test. This test would see the determinative factor of the law and not the
particular law.
• In the two very famous cases of the Supreme Court i.e. Kesavananda Bharti v. State of
Kerala [A.I.R. 1973 S.C. 1461] and Smt. Indira Nehru Gandhi v. Raj Narain [A.I.R.
1975 S.C. 2299], the Supreme Court in a majority held that each new constitutional
amendment would be determined in its own merits. The actual effect and impact of
the law on the rights guaranteed under the Part III of the Constitution has to be taken
into account for determining whether or not a law is violating the Basic Structure
doctrine.
• The doctrine of basic Structure is an axiom, and therefore it is the invasion of a
person's of the society's rights which is violated then this doctrine is attracted. The
Parliament's power to amend the Constitution under Article 368 is only not important
to check out the validity of the amendment, but the laws inserted in the Ninth
schedule has to be tested on the very touchstone of the Basic Structure of the
Constitution.
• Whatever might be amended, but the Basic Structure or the mere life and soul of the
Constitution cannot be changed. The Parliament under Article 368 cannot, so amend
the Constitution as to destroy the basic features. Therefore, the Basic Structure cannot

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 be amended simply by following the procedures laid down in the Article 368. The
doctrine of basic structure provides a touchstone to test the amending power or its
exercise, there can be no doubt and it has to be so accepted that Part III of the
Constitution has a key role to play in the application of the said doctrine.
• Fundamental rights enshrined in Part III were added to the Constitution as a check on
the State power, particularly the legislative power. Through Article 13, it is provided
that the State cannot make any laws that are contrary to Part III. However, the
unchecked and rampant exercise of this power, the number having gone from 13 to
284, shows that it is no longer a mere exception. The absence of guidelines for
exercise of such power means the absence of constitutional control which results in
destruction of constitutional supremacy and creation of parliamentary hegemony and
absence of full power of judicial review to determine the constitutional validity of
such exercise. And moreover, the fundamental rights have always enjoyed a
special and privileged place in the Constitution.
• Therefore, since the Fundamental Rights are the most important part of the
Constitution along with the Basic Structure, it is essential that Ninth Schedule laws
should be tested on the touchstone of the Fundamental Rights. The result of the
aforesaid discussion can be concluded that since the Basic Structure of the
Constitution includes some of the Fundamental Rights, any law granted Ninth
Schedule protection deserves to be tested against these principles. If the law
infringes the essence of any of the fundamental rights or any other aspect of
basic structure then it will be struck down. The extent of abrogation and limit of
abridgment shall have to be examined in each case.
• The Supreme Court ultimately decided the case and the judgement were delivered on
11th January 2009. The then Chief Justice Y.K. Sabharwal said that if the validity of
any 9th Schedule law has already been upheld by the Supreme Court (in its earlier
judgements), it would not be open to challenge such law again on the principles
declared by this judgment.
• The result of the aforesaid discussion can be concluded that since the Basic Structure
of the Constitution includes some of the Fundamental Rights, any law granted Ninth
Schedule protection deserves to be tested against these principles. If the law infringes
the essence of any of the fundamental rights or any other aspect of basic structure then
it will be struck down. The extent of abrogation and limit of abridgment shall have to
be examined in each case.

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 • The Supreme Court ultimately decided the case and the judgement were delivered on
11th January 2009. The then Chief Justice Y.K. Sabharwal said that if the validity of
any 9th Schedule law has already been upheld by the Supreme Court (in its earlier
judgements), it would not be open to challenge such law again on the principles
declared by this judgment.
• However, if a law is held to be violative of any rights in Part III is subsequently
incorporated in the Ninth Schedule after 24th April 1973, such a violation/ infraction
shall be open to challenge on the ground that it destroys or damages the basic
structure as indicated in Article 21 read with Article 14, Article 19 and the principles
underlying there under.
• Supremacy of the Constitution.
• Unity and sovereignty of India.
• A democratic and republican form of government.
• Federal character of the Constitution.
• Secular character of the Constitution.
• Separation of power.
• Individual freedom.
• Rule of law.
• Judicial review.
• Parliamentary system.
• Rule of equality.
• Harmony and balance between the Fundamental Rights and DPSP.
• Free and fair elections.
• Limited power of the parliament to amend the Constitution.
• Power of the Supreme Court under Articles 32, 136, 142, and 147.
• Power of the High Court under Articles 226 and 227.

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

• Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1
• This case was based on Article 15 of Indian Constitution. This Article talks about the
prohibition of discrimination on grounds of Religion, Race, Cast, Place of birth and
Sex.
• In this case petitioner was challenged on the policy of 27% reservation for the Other
Backward Classes (OBCs) contained in the Central Educational Institutions

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 Reservation in Admission Act 2006. The Act is challenged on the grounds of the
Union of India has failed in performing the constitutional and legal duties toward the
citizen and that the Act would have wide ramifications and ultimately result in
dividing the country on a caste basis.
• Issues
1. Whether the 93rd Amendment of the constitution is against the “basic structure” of the
Constitution?
2. Whether the exclusion of minority educational institutions from Article 15(5) is
violative of Article 14 of Constitution?
3. If so, whether “Creamy Layer” is to be excluded from SEBCs?
• In this case Court held that the Constitution (Ninety-Third Amendment) Act, 2005
does not violate the “basic structure” of the Constitution.
• In this case Union of India asserted that reservation whether in employment or in
education is not violative of the basic structure or equality code of the Constitution.
• In this case the subject matter is challenge not only the policy of granting 27%
reservation as being arbitrary and ultra vires of the constitution, but also the method
of adoption to define and calculate the population of OBCs in the country.
• This case is Shifting from the OBC estimate, the another disputed area revolved
around the inclusion of the creamy-layer within the purview of reservation under the
Act. It is held by the Court that the non-exclusion of creamy-layer would have an
effect on the invalidity of the statute.
• According to the Court did not think that there has been any infringement of the rights
guaranteed by Article 14. It was appropriate that the matter should be heard by a
larger Bench.
• The Judge move to the suggestion list of issue that the larger court should considered
and validity of the 2006 Act.
• In this case, the bench consists of Justice K.G. Balakrishnan, Justice C.K. Thakker,
Justice Dalveer Bhandari, Justice Dr Arjit Pasayat, and Justice R.V Raveendran.
Justice K.G. Balakrishnan delivered the judgment. The bench observed that none of
the single unaided private education institutions filed a single petition challenging the
ninety-third amendment act violates the basic structure of the constitution. The court
does not want to enter into the question of whether the ninety-third amendment act
violates the “basic structure” of the constitution with respect to the unaided private
education institution. Court leaves this open for another appropriate case. The court

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 only deals with the question of the constitutionality of the ninety-third amendment act
with respect to the State maintained institution and aided educational institution.
• In Kesavananda Bharati case (1973), the court held that every provision in the
constitution can be amended as far as the result of the amendment does not disturb the
basic structure and must remain the same. The court also held that in this case the
principle of equality can not be defined under one definition, it is the multi-coloured
concept. The principle of equality is very essential for any human society and this
principle is stated in Article 14, 15, 46 of the constitution and considered to be the
element of “basic structure” of the constitution. It may be subject to the amendment
but it can be configured in a certain way in which this change must be limited within
the border of principle and also can not disturb the larger purpose behind the
principle. After considering the above reasoning the court held that if the
constitutional amendment is abridged or altered any provision it can consider as the
violation of the “basic structure” of the constitution, it was also held that the
constitution is able to adapt itself with the changing dimension of human society.
Therefore the plea by the petitioners, challenging the constitutionality of the ninety-
third amendment act is of no force, this amendment does not violate the basic
structure of the constitution.
• The court also answers the question about the exclusion of minority educational
institutions. The court held that this plea is not sustainable because Article 30 of the
constitution gives separate rights to minority institutions and this classification is in
accordance with the constitution. And also the exclusion of minority institutions from
Article 15(5) this Article to remain operative with complying with Article 30. Court
also noted that if there is any violation of Article 14 by the ninety-third amendment
act, there should be a petition from the side of the minority institution as there is no
petition. Therefore, the court held that there is no violation of Article 14 by Article
15(5). The court also addresses the issue of the constitutionality of the identification
of backward class based on “Caste”. It was pointed out that national commissions and
State commissions that deal with affairs of the backward class have the detailed
guidelines based on the recommendation of Mandal commission and it was also
pointed out that the commissions did not identify backward class solely on the basis
of Caste. Commissions also consider different criteria such as social, education,
economic factors, and also timely analyzing the improvement or deterioration of the
group of people, there also an elaborate questionnaire was prepared by the

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 commissions for the purpose of the inclusion or exclusion of the group of people in
the list.
• It was clear that for the purpose of the determination of socially and economically
backward class is not based solely on the basis of Caste but also includes different
criteria and it is not the violation of Article 15(1) of the constitution. There is also one
more under this issue, which is about the exclusion of the “creamy layer” from
SEBCs. It was noted that if the principle of the “creamy layer” is not applied in the
process of determining the backward class then this exercise of identification is solely
based on “Caste”.
• The court held that the creamy layer is introduced for the purpose of excluding a
section of a particular caste which is economically advanced or educationally forward.
Creamy layer is excluded so there can be proper identification of socially and
economically backward class and the court also held that without exclusion of the
creamy layer from SEBCs it may violate Article 15(1) of the Constitution. The court
also held that the creamy layer is not applicable for The Scheduled Caste (SCs) and
Scheduled Tribes (STs) because SC and ST separate categories and also the concept of
creamy layer is not applicable in the principle of equality. The concept is only applied
to identify socially and economically backward classes.
• Petitioners also raise the concern about excessive delegation of power to the union
government to determine the backward class. For this issue court held that the
“backward class” is not a new word or a new concept, it is mentioned in the
constitution multiple time and there are many national as well as state commissions in
the country and their primary objective is to deal with the affairs of backward classes,
and this commission has laid down guidelines and court also said that if any
undeserving Caste or group or person are included in the socially and economically
backward class, that it is totally open anyone to challenge this inclusion through
judicial review, So it is not carried to say it is excessive delegation to the union of
India or it has been given wide power and the challenge of the central education
institution is fail on the ground grounds of excessive delegation of power.

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Union of India Vs. R. Gandhi [2010] INSC 393 (Applicability of Basic Structure
Doctrine on ordinary laws)
• "The Constitution has a basic structure comprising the three organs of the Republic:
the Executive, the Legislature and the Judiciary. It is through each of these organs that
the sovereign will of the people has to operate and manifest itself and not through
only one of them. None of these three separate organs of the Republic can take over
the functions assigned to the other. This is the basic structure or scheme of the system
of Government of Republic............
MBA contended that constitution of a Tribunal to transfer the entire company law
jurisdiction of the High Court was violative of the doctrine of separation of power and
independence of judiciary which are parts of basic structure of the Constitution. The
Union of India countered it by contending that a Legislation cannot be challenged on
the ground it violates the basic structure of the Constitution. It is now well settled that
only constitutional amendments can be subjected to the test of basic features doctrine.
• Legislative measures are not subjected to basic features or basic structure or basic
framework. The Legislation can be declared unconstitutional or invalid only on two
grounds namely (i) lack of legislative competence and (ii) violation of any
fundamental rights or any provision of the Constitution [See : Indira Gandhi vs. Raj
Narain - 1975 Supp SCC 1; Kuldip Nayar vs. Union of India - 2006 (7) SCC 1;
and State of Andhra Pradesh vs. McDowell & Co. - 1996 (3) SCC 709]. The reason
for this was given by Chandrachud J., in Indira Gandhi, thus:
• ""Basic structure", by the majority judgment [in Keshavanda Bharati vs. State of
Kerala - 1973 (4) SCC 225], is not a part of the fundamental rights nor indeed a
provision of the Constitution. The theory of basic structure is woven out of the
conspectus of the Constitution and the amending power is subjected to it because it is
a constituent power. "The power to amend the fundamental instrument cannot carry
with it the power to destroy its essential features' - this, in brief, is the arch of the
theory of basic structure. It is wholly out of place in matters relating to the validity of
ordinary laws made under the Constitution.......
• "The one principle, however, which is deducible in all the applications of the basic
structure doctrine, which has been used by this Court to limit even the power of
Constitutional amendment, is that whatever is put forward as a basic limitation upon
legislative power must be correlated to one or more of the express provisions of the

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 Constitution from which the limitation should naturally and necessarily spring forth.
The doctrine of basic structure, as explained above, requires that any limitation on
legislative power must be so definitely discernible from the provisions of the
Constitution itself that there could be no doubt or mistake that the prohibition is a part
of the basic structure imposing a limit on even the power of Constitutional
amendment. And, whenever we construe any document, by reading its provisions as a
whole, trying to eliminate or resolve its disharmonies, do we not attempt to interpret it
in accordance with what we find in its "basic structure" or purposes ? The doctrine is
neither unique nor new.No doubt, as a set of inferences from a document (i.e. the
Constitution), the doctrine of "the basic structure" arose out of and relates to the
Constitution only and does not, in that sense, appertain to the sphere of ordinary
statutes or arise for application to them in the same way.
• But, if, as a result of the doctrine, certain imperatives are inherent in or logically
and necessarily flow from the Constitution's 'basic structure", just as though
they are its express mandates, they can be and have to be used to test the validity
of ordinary laws just as other parts of the Constitution are so used.

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Module V- Union & State Judiciary
Introduction
 Chapter IV under Part V of the constitution of India deals with the provisions relating
to the Indian judiciary. The Articles dealing with constitution and jurisdiction of the
Supreme Court of India are stated in detail from Articles 124-147. Unlike the other
two branches, executive and legislature, in India, judiciary is integrated. This means
that even though there may be High Courts in states, the law declared by the Supreme
Court shall be binding on all the lower courts within the territory of India (Article
141) as per the doctrine of precedents.

Article 124 – Establishment and Constitution of Supreme Court

 (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and,
until Parliament by law prescribes a larger number, of not more than seven other
Judges.
 (2) Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary for
the purpose and shall hold office until he attains the age of sixty- five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India shall always be consulted:
 Provided further that —
 (a) a Judge may, by writing under his hand addressed to the President, resign
his office;
 (b) a Judge may be removed from his office in the manner provided in clause
(4).
 (2A) The age of a Judge of the Supreme Court shall be determined by such authority
and in such manner as Parliament may by law provide.
 Introduction
 (3) A person shall not be qualified for appointment as a Judge of the Supreme Court
unless he is a citizen of India and —
 (a) has been for at least five years a Judge of a High Court or of two or more
such Courts in succession; or

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  (b) has been for at least ten years an advocate of a High Court or of two or
more such Courts in succession; or
 (c) is, in the opinion of the President, a distinguished jurist.
 Explanation I.—In this clause "High Court'' means a High Court which exercises, or
which at any time before the commencement of this Constitution exercised,
jurisdiction in any part of the territory of India.
 Explanation II.—In computing for the purpose of this clause the period during which
a person has been an advocate, any period during which a person has held judicial
office not inferior to that of a district judge after he became an advocate shall be
included.
 (4) A Judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament supported
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 has been presented to
the President in the same session for such removal on the ground of proved
misbehaviour or incapacity.
 (5) Parliament may by law regulate the procedure for the presentation of an address
and for the investigation and proof of the mis behaviour or incapacity of a Judge
under clause (4).
 (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters
upon his office, make and subscribe before the President, or some person appointed in
that behalf by him, an oath or affirmation according to the form set out for the
purpose in the Third Schedule.
 (7) No person who has held office as a Judge of the Supreme Court shall plead or act
in any court or before any authority within the territory of India
 Clause (1) of Art. 124 states that there shall be a Supreme Court of India. In Supreme
Court, there is one chief judge known as ‘The Chief Justice of India ’and other
Judges. The number of other judges should be commensurate to the amount of work.
The Supreme Court is the apex court and the final court of appeal under the
constitution of India.
 Clause (2) of Art.124 of the constitution of India prescribes the procedure for
appointment of Judges to the Supreme Court. As per this provision, every judge of the
Supreme Court is appointed by the president of India by warrant under his hand and
seal. However, before making the appointment, the president is obliged to consult

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 such of the judges of the Supreme Court and of the High Courts as he deems
necessary.
 Further, in the case of appointment of a Judge other than the Chief Justice of India, it
shall be done by the president of India after consultation with the chief justice of
India. Although Art.124 (2) states that appointment of a judge is made by the
president, but in fact, it is the union executive that exercises the power. It means,
the president makes such the appointment on the advice of the council of
ministers.
 The constitution has provided only for consultation which means the executive
do not enjoy absolute power in making the said appointments as such a power to
the executive may devastate and destroy the prospect of an independent,
impartial Judiciary. This can be one of the best examples of the doctrine of
separation of powers along with checks and balance system.

Qualifications
 The qualifications for a person to be appointed as a judge of the Supreme Court are
provided under Clause (3) of Art.124. They are as follows:
 1) He must be an Indian citizen.
 2) He must have been a judge of a High Court for at least five years, or
 3) He must have been an advocate of a High Court of at least ten years; or
 4) In the opinion of the president, he should be a distinguished jurist.
 Apart from the above mentioned qualifications expressly prescribed by the
Constitution, the implied qualifications required are: unimpeachable character and
integrity; impartiality, independence; equanimity; incorruptibility.
 As stated under Art.124 (2), a judge of the Supreme court shall hold an office until he
attains the age of sixty-five years. He may resign before the age of retirement by
addressing his letter of resignation to the president.

Removal by Impeachment
 As provided under Clause (4) of Art.124, a judge of the Supreme Court can be
removed from office before he attains the age of sixty five years on grounds of proved
misbehavior or incapacity. What amounts to ‘Misbehavior’ or ‘Incapacity’ is not
explained under Art.124 (4).
 A judge can be removed on either of the grounds and there is no need to establish
both “Misbehavior” and “Incapacity” due to the connotation of the term ‘or’.

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  Further, a sitting Judge can be removed only when his misbehavior or incapacity is
proved and not otherwise. So, mere apprehension, allegation, or suspicion is not
useful. Also the principle of natural Justice should also be followed so delinquent
judge has to be apprised of the charge and be heard. A judge of Supreme Court can be
removed from his office by an order of the president. Such an order can be passed
only after an address by each house of parliament for the removal of the judge on the
ground of proved misbehavior or incapacity is presented to the president. Such
address must be supported by a majority of the total membership of the house and by
a majority of not less than two-thirds of the members present and voting.
 Clause (5) of Art.124 provides that parliament may by law regulate the procedure for
the presentation of an address and for the investigation and proof of the misbehavior
or incapacity of a judge. In pursuance to the above provision, parliament has
enacted the Judges (Inquiry) Act, 1968 which provides an elaborate procedure
for investigating and establishing ‘misbehaviour’ or ‘incapacity’ of the judge by a
committee of inquiry to be constituted by the speaker of Lok Sabha or Chairman
of Rajya Sabha. The committee has to frame definite charges and the judge
concerned should be given a reasonable opportunity to present his defense. If the
committee holds the judge guilty, then the house takes up the motion for
consideration. After the motion is adopted as stipulated under clause (4) of Art.124
then address shall be presented to the president for the removal of the judge.

Jurisdiction, Powers and Functions of the Supreme Court

 The jurisdiction of the Supreme Court under the Constitution is vast. It is the apex
court of appeal in respect of all the matters. The apex court is conferred with the
following powers
 Power to Enforce Fundamental Rights (Art.32):

Article 32 - Remedies for enforcement of rights conferred by this Part

 (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
 (2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

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  (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
 (4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

Article 32
 Fundamental rights are enumerated in Part III of our constitution. There are different
kinds of fundamental rights like ‘Right to Equality’, religion, caste ‘Right not to be
discriminated on the grounds of race, sex or place of birth, ‘ Freedom of Speech and
Expression,’ Equality of opportunity in matters of public employment ‘Freedom of
Assembly,’ Freedom of Association.’ In case of any violation of these rights they can
look up to some authority for their enforcement. At this juncture, Art.32 comes into
play and acquires significance. Dr. Ambedkar has remarked that “Art.32 is the soul of
the constitution and the very heart of it and without this article our constitution would
be a nullity.”
 Art. 32 provide remedy for the violation of fundamental rights enshrined in Part. III.
Unlike other rights, it is remedial in nature and not substantive. Art.32 (1) provides
the right to move to the Supreme Court through appropriate proceedings for the
enforcement of the rights conferred by this part. Moreover it is important to note that
the right to move the Supreme Court for the enforcement of the fundamental rights
itself is a fundamental right. Thus, the Supreme Court is the ultimate protector and
guarantor of the fundamental rights and a sole duty is casted upon this court for the
protection of the citizens’ fundamental rights. Art.32 (2) empowers the Supreme Court
to issue writs like the writs of Habeas corpus, Mandamus, Quo warranto, Certiorari
and Prohibition for the enforcement of the fundamental rights. The Court’s power is
not only confined to the issuance of writs but also issuance of directions or orders
which appear to the court to be proper for the enforcement of the fundamental rights.
The court’s power is preventive, in the sense, preventing violations of
fundamental rights, as well as remedial. In addition, the court can award
compensation and exemplary costs when it is found that the State has violated
the fundamental right to life and personal liberty as guaranteed under Art.21.

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Supreme Court’s Power to Commit a Person for Contempt

Article 129 – Supreme Court to be a Court of record

Supreme Court to be a court of record The Supreme Court shall be a court of record and shall
have all the powers of such a court including the power to punish for contempt of itself. A
court of record has-
 1) Power to determine its own jurisdiction and 2) It has power to punish for its
contempt.
 A Court is called as ‘Court of Record’ where its acts and judicial proceedings are
enrolled for a perpetual memorial and testimony and has got the power to fine
and imprison for contempt of itself. In other words, a Court of Record is a court
of which the records are of evidentiary value and cannot be questioned when
produced before any court. Power to punish for contempt is conferred in order to
uphold the majesty and dignity of the court and to prevent scandal of the judiciary.
Further to ensure that the stream of justice remains unsullied, to bar interference in the
administration of justice, the Supreme Court’s power to punish for its contempt
extends to all courts and tribunals subordinate to it. For the exercise of this power, no
one has to appraise the court.
 In Delhi Judicial Service Assn. v. State of Gujarat – the Supreme Court has held that
its power to punish for contempt in Article 129 is not confined to its own contempt. It
extends to all courts and tribunals subordinate to it in the country. The words
“including the power to punish for contempt of itself” are not the words of restriction
and do not exhaust or exclude its jurisdiction as a court of record to punish for the
contempt of all subordinate courts.
 This constitutional power of the court cannot be curtailed or taken away by any
legislation, such as the Contempt of Courts Act, 1971. However it cannot be extended
beyond its well defined limits to deal with matters already covered by legislation.
Accordingly in Supreme Court Bar Association v. Union of India held that though
contempt of court was a serious misconduct on the part of a lawyer for which he could
be deprived o f his license to practice before the courts, he could be so deprived only
by the Bar Council in view of clear provisions to that effect in Advocates Act, 1961
and the rules made under it. Thus the Court overruled its own decision in Vinay
Chandra Mishra, re, in which along with other punishment for contempt to a senior
lawyer, it also suspended his license for a number of years.

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Article 131 - Original jurisdiction of the Supreme Court
 Subject to the provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute
 (a) between the Government of India and one or more States; or
 (b) between the Government of India and any State or States on one side and one
or more other States on the other; or
 (c) between two or more States, if and in so far as the dispute involves any
question (whether of law or fact) on which the existence or extent of a legal right
depends:
 Provided that the said jurisdiction shall not extend to a dispute arising out of any
treaty, agreement, covenant, engagements, and or other similar instrument which,
having been entered into or executed before the commencement of this Constitution,
continues in operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.

Original Jurisdiction
 The Supreme Court has got original and exclusive jurisdiction in any dispute i)
between one or more States and the government of India or ii) between one or more
states on one side and the government of India and any State on the other side; or iii)
between two or more states, if the dispute relates with a question of law or fact on
which the existence or extent of a legal right depends. A court is considered to have
original jurisdiction when it has authority to hear and determine a case at the first
instance. The court has got exclusive jurisdiction when no other court has the
authority to hear and decide the case. What is necessary to consider under Art.131 is
that the existence or extent of a legal right must be in issue in the dispute between the
parties, that is, between the government of India and one or more states, etc. The
theory underlying Art.131 is that if there be a dispute between two or more states and
it is not proper that the dispute be agitated before the court of one of the disputants i.e.
disputing parties.
 The article imposes two limitations on the exercise of the original jurisdiction :
 1) To the party – There must be an inter-State dispute, i.e. the dispute must be
between the units of Union or between the Union and any one or more of the States,
or between the Union and any State or States on one side and one or more States or
the other. The Supreme Court in its original jurisdiction shall not entertain suits

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 brought by private individuals against the Government of India. In State of Bihar v.
Union of India, the Court held that a dispute between the State of Bihar and the
Hindustan Steel Ltd., a registered company under the Companies Act, 1956, did not
fall within its original jurisdiction because it was not a State for the purpose of Article
131.
 2) To the subject matter – The dispute must involve any question on which the
existence or extent of a legal right depends. A legal right is an interest recognised and
protected by a rule of legal justice. The legal right may be of the Plaintiff or of the
Defendant. But where the claim made by a party is dependant not on law but on non-
legal considerations, the court has no jurisdiction under Article 131.
 Under Article 131, the Supreme Court is not required to adjudicate upon the disputes
in the same way as ordinary courts of law adjudicate. A suit need not be filed in the
Supreme Court for complete adjudication of the dispute envisaged therein, or the
passing of a decree capable of execution in the ordinary way as decrees of other
courts are.
 The proviso to Article 131 declares that the jurisdiction of Supreme Court does not
extend to a dispute arising out of any treaty, agreement, covenant, engagement. A
dispute involving interpretation of these documents is brought under the purview of
the discretion of the executive. Further Parliament may by law exclude the
jurisdiction of the Supreme Court in disputes between States with respect to the use,
distribution or control of waters of any inter-State rivers. The Constitution also
excludes the jurisdiction of the Supreme Court in matters referred to the Finance
Commission and matters relating to adjustment of certain expenses between the
Union and State.

Appellate Jurisdiction of the Supreme Court

 Article 132 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases
 ( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under Article 134A that the case involves a
substantial question of law as t the interpretation of this Constitution
 (2) Omitted

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 (3) Where such a certificate is given, any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly decided.
 Explanation - For the purposes of this article, the expression final order includes an
order declaring an issue which, if decided in favour of the appellant, would be
sufficient for the final disposal of the case
 The Supreme Court is the final authority on questions involving the interpretation of
the constitution. Different opinions by different High Courts on constitutional
questions create confusion among the lawyers and citizens. Therefore Art.132
provides that an appeal shall lie to the Supreme Court from any judgment, decree or
final order of a High Court, whether in civil or criminal or other proceeding, if the
High Court certifies that the case involves a substantial question of law as to the
interpretation of the constitution.
 Further the explanation added to the article defines the expression “final order”. It
indicates an order deciding an issue which, if decided in favour of the appellant,
would be sufficient for the final disposal of the case. Also the Article provides that in
order to give a person locus standi to appeal on a certificate it is necessary that he be a
party in the case before the High Court.
 Supreme Court’s appellate jurisdiction in civil matters –
 Article 133 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
regard to civil matters
 (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order
in a civil proceeding of a High Court in the territory of India if the High Court
certifies under Article 134A.
 (a) that the case involves a substantial question of law of general importance; and
 (b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court
 (2) Notwithstanding anything in Article 132, any party appealing to the Supreme
Court under clause ( 1 ) may urge as one of the grounds in such appeal that a
substantial question of law as to the interpretation of this Constitution has been
wrongly decided
 (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order
of one Judge of a High Court

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Appeals in Civil Cases
 The Supreme Court has got power to entertain appeals from the judgment, decree or
final order of a High Court in civil proceedings. If a person seeks relief in a civil court
when his civil rights are infringed by another person or by the state then proceedings
are considered to be civil in nature.
 The civil court may declare that the plaintiff’s claim is justified and he is entitled to
relief at the time of the conclusion of the proceedings. In order to invoke the Supreme
Court’s appellate Jurisdiction, the following conditions are important to be fulfilled:
 i) Appeal must be against a judgment, decree or final order of High Court in a
civil proceeding.
 ii) The High Court must have certified that the case involves a substantial
question of law of general importance and should be of the opinion that the
substantial question of law needs to be decided by the Apex Court.
 It can be said that the judgment, decree or final order all seem to convey the
same meaning i.e. the civil court’s pronouncement that finally or conclusively
determines the rights of the parties in a controversy or suit. Under Art.133, no
appeal can be made against the judgment, decree or final order of a single
judge of High Court unless parliament enacts a law to remove this restriction.

Appeals to Supreme Court in Criminal matters

Article 134 - Appellate jurisdiction of Supreme Court in regard to criminal matters
 (1) An appeal shall lie to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court in the territory of India if the High
Court
 ( a) has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or
 (b) has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and sentenced
him to death; or
 (c) certifies under Article 134A that the case is a fit one for appeal to the
Supreme Court: Provided that an appeal under sub clause (c) shall lie subject
to such provisions as may be made in that behalf under clause (1) of Article
145 and to such conditions as the High Court may establish or require

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 (2) Parliament may by law confer on the Supreme Court any further powers to
entertain and hear appeals from any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India subject to such conditions and
limitations as may be specified in such law
 The Supreme Court has got the criminal appellate Jurisdiction. It can be invoked
against the judgment, final order or sentence of High Court in a criminal proceeding
when the High Court has certified that the case should be referred for appeal to the
Supreme Court. The High Court grants certificate when difficult questions of law or
principles are involved in the case. Ordinarily, the High Court’s certificate would
show that the case involves a substantial question of law or principle. The High Court
has got discretion to grant or not grant the certificate under Art.134(1) (c) but the
discretion should be judicial one which has to be judicially exercised in the light of
well-established principles. The Supreme Court invokes it’s criminal appellate
jurisdiction in the following circumstances: a) When the High Court reversed the
decision of acquittal of the accused by the Sessions Court and sentenced him to death;
or b) When the High Court withdraws for trial before itself any case from any court
subordinate to it and has convicted the accused person and sentenced him to death.
Parliament may by enacting any law enlarge the appellate criminal Jurisdiction of the
Supreme Court. In 1970, parliament has enacted a law which enables an accused to
appeal to the Supreme Court when the High Court “has not sentenced him to death
under Art.134(2)(6)(1) but has sentenced him to imprisonment for life or for a period
of not less than ten years. The Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act,1970 substituted the words underlined above for the words “to
death” g) Special Leave to appeal to the Supreme Court under (Art.136): Under
Art.136, the Supreme Court may, with its discretion, grant special leave to appeal
from any judgment, decree, determination sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India. Under Articles 132 to
135, the Supreme Court’s appellate Jurisdiction can be ignited by fulfilling the
conditions mentioned there-under. But as per Article 136, the Supreme Court’s
permission or leave is necessary. Such permission or leave is granted by the Court
only with its discretion. Further, appeal may be allowed against determination,
sentence or any order either final or interim order of a court, which need not be a High
Court or tribunal (Industrial Tribunal, Income Tax Tribunal) .

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  Supreme Court may be inclined to grant special leave in situations where a party
suffered gross injustice on account of violation of the principle of natural justice or
where the tribunal’s order or determination is wrong or absurd as to shock the court’s
conscience. Since Art.136 mentions about decrees, judgments, orders, sentence,
determinations of courts or tribunals, purely executive or administrative order or
direction cannot be the subject-matter of appeal and the court would be disinclined to
accord leave. The court is to be convinced that there are special situations which
warrant its intervention. For example, when the tribunal has been improperly
constituted; where the procedure followed is unfair, unjust, and unreasonable; when
the tribunal has assumed a jurisdiction which in law it does not enjoy. The Supreme
Court has no power or Jurisdiction to grant special leave against the judgment,
sentence, decree, order, determination, passed or made by any court or tribunal
functioning under any law relating to the armed forces.

Power of Supreme Court’s to review its own judgments, orders

 Article 137 - Review of judgments or orders by the Supreme Court
 Subject to the provisions of any law made by Parliament or any rules made under
Article 145, the Supreme Court shall have power to review any judgment pronounced
or order made by it.
 The general proposition in respect of judicial decision-making is that there should be
finality attached to court’s judgments and that there should be an end to law suits.
Such a rigid adherence to this proposition may result in gross and manifest injustice.
A court should not be allowed to be a court of injustice. If, in a case, the court finds
that a particular provision of the Act ignored notice or evidence which would have
tilted the scales of justice and was not available at the time of its pronouncement,
then, it may prefer to review its earlier judgment at the instance of the aggrieved.
Art.137 confers the Supreme Court to review its judgments.
 Court’s review is permissible on the following grounds;
 i) Discovery of important and new matters of evidence;
 ii) Error or mistake of law apparent on the face of the record;
 iii) If there be any other justifiable, sufficient reason.
 Supreme Court’s Power to make an order necessary for doing complete Justice in any
case-

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  Article 142 - Enforcement of decrees and orders of Supreme Court and unless as to
discovery, etc
 (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or orders so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any
law made by Parliament and, until provision in that behalf is so made, in such manner
as the President may by order prescribe
 (2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and every
power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself
 This is a very important power to deal democratic polity. The Supreme Court’s power
under Article 142 is a residuary power, supplementary and complementary to the
powers specifically conferred on the court which it may exercise whenever it is just
and equitable to do so and in particular to ensure the observance of due process of
law, to do complete justice according to law. The power conferred on the Supreme
Court under Article 142 is exercised by the court to order for the payment of
compensation to a person who had been illegally detained, to order payment of
interim compensation to the victim of rape etc.

Advisory Jurisdiction
 Article 143 - Power of President to consult Supreme Court
 (1) If at any time it appears to the President that a question of law or fact has arisen, or
is likely to arise, which is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it, he may refer the
question to that Court for consideration and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon
 (2) The President may, notwithstanding anything in the proviso to Article 131, refer a
dispute of the kind mentioned in the said proviso to the Supreme Court for opinion
and the Supreme Court shall, after such hearing as it thinks fit, report to the President
its opinion thereon

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  Normally, function of the court is to decide the controversy presented to it and render
its justice. Again, courts do not take suo moto notice of such prevalent controversy
and offer the opinions. The court’s jurisdiction is to be invoked by the aggrieved party
by appropriate means, But, Art.143 empowers the Supreme Court to render advisory
opinion in certain contingencies. Such advisory opinion of the Supreme Court may
be rendered at the instance of the president of India which may enable
parliament to pass appropriate legislation or to introspect and effect suitable
amendments to the existing law. Art.143 empowers the president to refer to the
Supreme court a question of law or fact which in the opinion of the president is
of such nature and such public importance that it is expedient to seek the opinion
of the court on it. It is to be noted that a question of law which the Supreme
Court has already decided in a dispute presented to it cannot be the matter of a
reference by the president for advisory opinion because the implication would be
that the president would be inviting the apex court to at act as an appellate or
reviewing authority over its earlier decision while seeking its advisory opinion
under Art.143. On a presidential reference for advisory opinion, notice would be to
the attorney- general and all concerned may also be served notices to appear as parties
or as interveners. After hearing, the court reports to the president. The advisory
opinion tendered does not bind the president. Conversely, the Supreme Court may
also decline to express its opinion, specially, where the reference is vague.

Case Laws:
 The First Judges Appointments Case, (1981) Supp. SCC 87 (selected excerpts from
the opinion of Justice Bhagwati only)
 The Second Judges Appointments Case, (1993) 4 SCC 441 (selected excerpts from
the majority opinion)
 The Third Judges Appointments Case, (1998) 7 SCC 739 (selected excerpts)
 The Fourth Judges Appointments Case, (2016) 5 SCC 1 (selected excerpts from the
four concurring opinions)
 Supreme Court of India: Composition, Power and Functions
 The Indian constitution under Article 124(1) states that there shall be a Supreme Court
of India consisting of a Chief justice of India (CJI) and 31 judges including the CJI.
The Jurisdiction of the Supreme Court of India can broadly be categorised into

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 original jurisdiction, appellate jurisdiction and advisory jurisdiction. However, there
are other multiple powers of the Supreme Court.
 Supreme Court at the apex of Indian Judiciary is the highest authority to uphold the
constitution of India, to protect rights and liberties of citizens and to uphold the values
of rule of law. Hence it is known as the guardian of our Constitution.
The Indian constitution provides for a provision of Supreme Court under Part 5 (The
Union) and Chapter 6 titled The Union Judiciary. Indian Constitution has provided an
independent judiciary with a hierarchical setup containing High Courts and
Subordinate Courts under it.

Composition of the Supreme Court

 Article 124(1) and Amendment act of 2008 states that there shall be a Supreme Court
of India consisting of a Chief justice of India (CJI) and 31 judges including the CJI.
Article 124(2) states that every judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation with such of the
judges of Supreme Court and of the High Courts in the states.
 Here the collegium system(appointment of judges to the courts) was followed also
known as the three judges cases, which comprises of the Chief Justice of India and
four senior most judges of the SC, one chief justice of a high court and two of its
senior most judges. This system demanded a consensus decision of all the senior most
judges in conformity with the Chief Justice of India.
 However due to lack of transparency and delay in appointment, a new article 124 A
was incorporated in the constitution, under which the National Judiciary
Appointments Commission (NJAC) replaced the collegium system for the
appointment of judges as mandated in the existing pre-amended constitution by a new
system.

Appointment of the Judges

 The procedure of appointment of the Chief Justice and other judges has created a lot
of controversy because it is the key aspect of the independence of the judiciary. Art
124 specifies that the Chief Justice is appointed by the president after consulting with
the judges of the Supreme Court and the high courts. Further, that while appointing
other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent

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 the executive from having complete discretionary powers in the appointment of the
judges.
 Until 1973, the senior most judge of the Supreme Court was appointed as the Chief
Justice. However, this convention was broken when Justice AN Ray was appointed as
the CJ by passing 3 more senior judges. This was seen as a blatant assault on the
independence of the judiciary. The govt. pleaded that the word “consult” does not
mean that the president is bound by the advice. He is free to make his own decision.
 In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the
transfer of a Judge from one high court to another under art 222, SC held that the
President has the right to differ from the advice provided by the consultants.

Case Laws: Brief Overview

 Judges Transfer Case 1
 In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the
meaning of the word ‘consultation’ as determined in the Sankalchand’s case. It further
held that the only ground on which the decision of the govt. can be challenged is that
it is based on mala fide and irrelevant consideration. In doing so, it substantially
reduced its own power in appointing the judges and gave control to the executive.
 Judges Transfer Case 2
 This matter was raised again in the case of SC Advocates on Record Association vs
Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta
case and held that in the matter of appointment of judges of high courts and supreme
court, the CJ should have the primacy and the appointment of the CJ should be based
on seniority. It further held that the CJ must consult his two senior most judges and
the recommendation must be made only if there is a consensus among them.
 Judges Transfer Case 3
 A controversy arose again when the CJ recommended the names for appointment
without consulting with other judges in 1999. The president sought advice from the
SC (re Presidential Reference 1999) and a 9 member bench held that an advice given
by the CJ without proper consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the
judges in SC and High Courts are fairly free from executive control. This is an
important factor that ensure the independence of the judiciary and the appointment
shall be made through the collegium system.

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What is the Collegium System?

The Collegium System is a system under which appointments/elevation of

judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex
Court are decided by a forum of the Chief Justice of India and the four senior-most
judges of the Supreme Court.' There is no mention of the Collegium either in the
original Constitution of India or in successive amendments.
The Collegiums System of appointment of judges was born through “three judges
case” which interpreted constitutional articles on October 28, 1998.
The recommendations of the Collegium are binding on the Central Government; if the
Collegium sends the names of the judges/lawyers to the government for the second
time.
 The NJAC consists of the following persons:
1. Chief Justice of India (chair person)
2. Two senior most Supreme Court judges
3. The Union Minister of Law and Justice
4. Two eminent persons nominated by committee consisting of CJI, Prime minister of
India and leader of opposition.

Functions of the Commission are as follows:

 Recommending persons for CJI, judges of supreme court, Chief Justice of High court,
Judges of High court,
 Transfer of Chief justices and judges from one court to other
 Ensure persons recommended are of ability and integrity

How Collegium System Works?

• The Collegium sends the recommendations of the names of lawyers or judges to the
Central Government. Similarly, the Central Government also sends some of its
proposed names to the Collegium. The Central Government does the fact checking
and investigate the names and resends the file to the Collegium.
• Collegium considers the names or suggestions made by the Central Government and
resends the file to the government for final approval. If the Collegium resends the
same name again then the government has to give its assent to the names. But time

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 limit is not fixed to reply. This is the reason that appointment of judges takes a long
time.
• Here i would like to give the example of Chief Justice of the Uttrakhand High Court.
In this case the Collegium is recommending the name of the Chief Justice K.M.
Joseph for the judge of the Supreme Court but the central government is not giving its
assent due to political reasons.

Points against the Collegium System

1. Inspite of being a democracy, the judges appoint judges in India.
2. Collegium System could not appoint judges as per the vacancies in the courts
due to
3. various reasons.
4. If the constitution makers had liked this way of appointment of judges, they
would have
5. envisaged it in the original constitution itself.
6. In the year 2009, Law Commission of India said that nepotism and personal
patronage is
7. prevalent in the functioning of the Collegium System.
8. Collegium System is recommending the appointment of the judges without
considering the
9. talent available in the market.
 Based on the complete information given above, it became clear that the current
Collegium System of the country is trying to make "wrestler's son wrestler" and
"judge's son judge" without giving chance to talent available in the market. So
Collegium System is not a healthy practice for a democratic country like India. The
Collegium System is not the constitutional system so the central government should
make appropriate laws to pull out the Indian Judicial System from the monopoly of
some families.

Impeachment of Judges
 A judge may be removed from office through a motion adopted by Parliament on
grounds of ‘proven misbehaviour or incapacity’. While the Constitution does not use
the word ‘impeachment’, it is colloquially used to refer to the proceedings under
Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the
removal of a High Court judge). The Constitution provides that a judge can be

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 removed only by an order of the President, based on a motion passed by both Houses
of Parliament. The procedure for removal of judges is elaborated in the Judges Inquiry
Act, 1968. The Act sets out the following steps for removal from office:
1. Under the Act, an impeachment motion may originate in either House of
Parliament. To initiate proceedings:
 (i) at least 100 members of Lok Sabha may give a signed notice to the
Speaker, or
 (ii) at least 50 members of Rajya Sabha may give a signed notice to
the Chairman. The Speaker or Chairman may consult individuals and
examine relevant material related to the notice. Based on this, he or she
may decide to either admit the motion or refuse to admit it.
2. If the motion is admitted, the Speaker or Chairman (who receives it) will
constitute a three-member committee to investigate the complaint. It will
comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court; and
(iii) a distinguished jurist. The committee will frame charges based on which
the investigation will be conducted. A copy of the charges will be forwarded to
the judge who can present a written defence.
• After concluding its investigation, the Committee will submit its report to the Speaker
or Chairman, who will then lay the report before the relevant House of Parliament. If
the report records a finding of misbehaviour or incapacity, the motion for removal will
be taken up for consideration and debated.
• The motion for removal is required to be adopted by each House of Parliament by:
• (i) a majority of the total membership of that House; and
• (ii) a majority of at least two- thirds of the members of that House present and
voting. If the motion is adopted by this majority, the motion will be sent to the
other House for adoption.
• Once the motion is adopted in both Houses, it is sent to the President, who will issue
an order for the removal of the judge.

Past instances of attempted removal

 Given the procedure involved, it is not surprising that no judge has been removed till
date in independent India. So far, six judges (excluding Justice Misra) have faced
attempts to have them removed from office.

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  Justice V Ramaswami, then Chief Justice of the Punjab and Haryana High Court, has
the dubious honour of being the first judge to have impeachment proceedings initiated
against him in 1991. Although the Inquiry Committee had found Justice Ramaswami
guilty on 11 out of 14 charges, the impeachment motion failed on account of
insufficient votes at the penultimate stage.
 Proceedings initiated against Sikkim High Court Judge, PD Dinakaran in 2011, for
alleged judicial misconduct met with success up to the point of the constitution of an
Inquiry Committee. However, the removal was halted following Justice Dinakaran’s
resignation, on grounds of lack of faith and confidence in the impartiality of the
Inquiry Committee.
 The furthest impeachment proceedings have been taken forward was against Justice
Soumitra Sen of the Calcutta High Court, for cited misappropriation of public funds.
Following the Inquiry Committee’s finding that Justice Sen was guilty, the
impeachment motion found overwhelming support in the Rajya Sabha. However, in
September 2011, Justice Sen resigned before the motion could be voted on in the Lok
Sabha.
 In 2015, Justice JB Pardiwala of the Gujarat High Court ran into trouble after he made
certain ‘casteist’ remarks against reservation in a judgment. However, the motion for
impeachment lost steam after the judge removed the controversial remarks from the
judgment.
The same year, impeachment proceedings were initiated against Justice SK Gangele
of the Madhya Pradesh High Court on allegations of sexual misconduct. However, the
Inquiry Committee set up by the Rajya Sabha ended up giving a clean chit to the
judge, after finding that the allegations were unfounded.
 Two attempts to remove Justice CV Nagarjuna Reddy as a judge of the Andhra
Pradesh and Telangana High Court in 2016 and 2017 also failed to materialise. The
impeachment motion initiated on alleged grounds of casteist acts, saw loss of support
before an Inquiry Committee could be constituted.

Independence of Judiciary
 An independent judiciary is the sine qua non of a vibrant democratic system. Only an
impartial and independent judiciary can stand as a bulwark for the protection of the
rights of the individuals and mete out even handed justice without fear or favour. The
judiciary is the protector of the constitution and, as such, it may have to strike down

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 executive, administrative and legislative acts of the centre and the states. For Rule of
law to prevail, judicial independence is of prime necessity. The independence of the
judiciary is normally assures through the Constitution but it may also be assured
through legislations, conventions and other suitable norms and practices. The
constitutions or the foundational laws on judiciary are however, only the starting point
in the process of securing judicial independence.
 Ultimately the independence of the judiciary depends on the totality of a favorable
environment created and backed by all state organs including the judiciary and the
public opinion. The independence of judiciary also needs to be constantly guarded
against the unexpected events and the changing social, political, economic conditions;
it is too fragile to be left unguarded. In India, the question of independence of the
judiciary has been a subject of heated national debate over the last many years. It has
exercised the minds of legislators, jurists, politicians and the laymen. Both the
supporters and the opponents have cogent arguments in support of their views. This
question assumes great importance whenever the Supreme Court holds a particular
Act or particular Clause of an Act passed by Parliament ultravirus of the Constitution.

Meaning of Independence of Judiciary

 The independence of the judiciary is not a new concept but its meaning is still
imprecise. The starting and the central point of the concept is apparently the doctrine
of the separation of powers.
 Therefore, primarily it means the independence of the judiciary from the executive
and the legislature. But that amounts to only the independence of the judiciary as an
institution from the other two institutions of the state without regard to the
independence of judges in the exercise of their functions as judges. In that case it does
not achieve much.
 The independence of the judiciary does not mean just the creation of an autonomous
institution free from the control and influence of the executive and the legislature. The
underlying purpose of the independence of the judiciary is that judges must be able to
decide a dispute before them according to law, uninfluenced by any other factor.
 For that reason the independence of the judiciary is the independence of each
and every judge. But whether such independence will be ensured to the judge
only as a member of an institution or irrespective of it is one of the important

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 considerations in determining and understanding the meaning of the
Independence of the judiciary.

Constitutional Provision
 The Constitution of India is the fundamental law of the land from which all other laws
derive their authority and with which they must conform. All powers of the state and
its different organs have their source in it and must be exercised subject to the
conditions and limitation laid down in it. The constitution provides for the
parliamentary form of government which lacks strict separation between the executive
and the legislature but maintains clear separation between them and the judiciary. The
Indian Constitution specifically directs the state "to separate the judiciary from the
executive in the public services of the State. The Supreme Court has used this
provision in support of separation between the judiciary and the other two branches of
the state at all levels, from the lowest court to the Supreme Court. Although the nature
of the Indian Constitution- whether it is federal or unitary-is doubtful, basically it
provides for a federal structure of government consisting of the Union and the States.
The Union and the States have their distinct powers and organs of governance given
in the constitution. While the Union and States have separate legislatures and
executives, they do not have a separate judiciary." The judiciary has a single
pyramidal structure with the lower or subordinate courts at the bottom, the High
Courts in the middle, and the Supreme Court at the top. For funding and some
administrative purposes, the subordinate courts are subject to regulation by the
respective States, but they are basically under the supervision of the High Courts.
 The High Courts are basically under the regulative powers of the Union, subject to
some involvement of the States in the appointment of judges and other staff and in the
finances. The Supreme Court is exclusively under the regulative powers of the Union.
Subject to territorial limitations, all courts are competent to entertain and decide
disputes both under the Union and the State laws.
 The unitary character of the judiciary is not an accident but rather a conscious and
deliberate act of the constitution makers for whom a single integrated judiciary and
uniformity of law were essential for the maintenance of the unity of the country and
of uniform standards of judicial behavior and independence. The member of the
constituent assembly were very much concerned with the question of independence of
judiciary and accordingly made several provision to ensure this end.the supreme court

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 has itself laid emphasis on the independence of judiciary from time to time.as the
court has observed
 in A.C. Thalwal Vs High Court Of Himachal Pradesh - The constitutional scheme
aims at securing an independent judiciary which is the bulwark of democracy.

The First Judges Appointments Case, (1981) Supp. SCC 87 (selected excerpts
from the opinion of Justice Bhagwati only)
 The Indian Supreme Court rejected the central government’s claim for protection
against disclosure and directed the Union of India to disclose the requested
documents. The petitioners sought the disclosure of correspondence between the Law
Minister, the Chief Justice of Delhi, and the Chief Justice of India on the appointment
and transfer of judges. The Court reasoned that a particular document regarding the
affairs of the state is only immune from disclosure when disclosure is clearly contrary
to public interest and in this case the appointment and transfer of judges is of
immense public interest.
 The foregoing case dealt with a number of petitions involving important constitutional
questions regarding the appointment and transfer of judges and the independence of
judiciary. One of the issues raised was regarding the validity of Central Government
orders on the non-appointment of two judges. To establish this claim, the petitioners
sought the disclosure of correspondence between the Law Minister, the Chief Justice
of Delhi, and the Chief Justice of India.
 However, the state claimed privilege against disclosure of these documents under
article 74(2) of the Indian Constitution, which provides that the advice tendered by the
Council of Ministers to the President cannot be inquired into in any court, and section
123 of the Indian Evidence Act, which provides that evidence derived from
unpublished official records on state affairs cannot be given without the permission of
the head of the concerned department. Section 162 of the Evidence Act provides that a
witness summoned to produce a document before a court must do so, and the court
will decide upon any objection to this.
 In a case decided by Justice Bhagwati, the Supreme Court of India rejected the
government’s claim for protection against disclosure and directed the Union of India
to disclose the documents containing the correspondence. An open and effective
participatory democracy requires accountability and access to information by the

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 public about the functioning of the government. Exposure to the public gaze in an
open government will ensure a clean and healthy administration and is a powerful
check against oppression, corruption, and misuse or abuse of authority. The concept of
an open government is the direct emanation from the right to know, which is implicit
in the right to freedom of speech and expression guaranteed under Article 19(1)(a) of
the Indian Constitution. Therefore, the disclosure of information in regard to
government functioning must be the rule and secrecy the exception, justified only
where the strictest requirement of public interest demands it.
 With respect to the contention involving Article 74(2), the Court held that while the
advice by the Council of Ministers to the President would be protected against judicial
scrutiny, the correspondence in this case between the Law Minister, the Chief Justice
of Delhi, and the Chief Justice of India was not protected merely because it was
referred to in the advice.
 There are only two grounds on the basis of which the Central Government’s decision
regarding appointment and transfer can be challenged: (1) there was no full and
effective consultation between the Central Government and the appropriate
authorities, and (2) the decision was based on irrelevant grounds. The correspondence
in question would be relevant qua both these grounds, which necessitates its
disclosure. Public interest lies at the foundation of the claim for protection under the
Evidence Act. Under these considerations, the Court must decide whether disclosure
of a particular document will be contrary to public interest. It must balance the public
interest in fair administration of justice through disclosure with the public interest
sought to be protected by nondisclosure, and then decide if the document should be
protected.
 The correspondence in the present case was found not to be protected. It dealt with
appointment and transfer of judges, a matter of great public interest, and its disclosure
would not have been detrimental to public interest. The apprehension of an ill-
informed or captious public or of political criticism were not enough to justify the
protection of the correspondence. After examining the correspondence, the Court
decided that the Central Government order regarding non-appointment was justified.
 The Hon’ble Supreme Court in the present case, while denying the argument of the
respondents on the disclosure of correspondence, held that the disclosure would not
be made only if such disclosure would affect the public interest and is contrary to
public policy. But if the disclosure is necessary for the public to know, it must be done

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 without any delay. The Court talked about open and responsible government, where
the government is accountable to the people for its work. This concept of open
government directly indicates the right to know given under the ambit of freedom of
speech and expression under Article 19(1)(a) of the Constitution. The very spirit of
democracy demands an accountable and transparent government. There must be a
check on their functioning and role. This can only be done if people are given the
right to know. The only exception to the right to know is when any information relates
to the security of the country or is of such a nature that its disclosure will harm the
public interest.
 With respect to the advantage of advice taken by the respondents under Article 74(2),
the Court said that the correspondence does not fall into the category of advice
mentioned in the Article. Just because the correspondence was rendered as advice by
the Chief Justice of India and the Chief Justice of the Delhi High Court, it will not be
protected under the said Article. Moreover, it included their opinions, which does not
amount to advice.
 While deciding on the third claim of the respondents, in which they sought the
protection of unpublished documents from being treated as evidence under Section
123 of the Indian Evidence Act, 1872, the Court relied on the case of State of UP v.
Raj Narain (1975), where the Court upheld the decision of the High Court on treating
any unpublished document as evidence in the court. It gave the reason that the court
has the authority to determine the kind of effect it will have on the public interest if it
is disclosed to them.
 In the present case, there was no proper consultation between the government and the
authorities to be consulted for the appointment of judges and their transfer, nor was it
based on relevant grounds. The aim of the court is to create a balance between
fairness and justice and serve the public interest. The appointment of judges and their
transfer, in this case, comes in the public interest and so the correspondence was not
contrary to it and had to be disclosed.
 In order to achieve independence of the judiciary and keep the executive away from
interfering in the procedure of appointment of judges, the idea and concept of the
collegium system were introduced in this case. Justice Bhagwati suggested that there
must be a collegium to recommend the names of the judges to the President, on the
issue of appointment of judges in the Supreme Court and the High Courts. It must
consist of such persons that have no bias against anyone and must give the names of

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 such people that can contribute to the significance of the judiciary and serve its
purpose.
 The present case is seen as a milestone in the history of precedents which introduced
the concept of the collegium system in India for the appointment of judges in the
Supreme Court and the High Courts. It is because of this case that this system was
followed after the judgement in the ‘Second Judges case.’ The case also laid emphasis
on the independence of the judiciary and that the executive must not interfere with it.
There was apprehension that if the executive had the power to appoint the judges in
the Supreme Court and High Courts, they would also interfere in the working of the
judiciary and the powers of judges to adjudicate cases, thereby hampering the
independence of the judiciary. But because of the establishment of the collegium
system and various other case laws, this did not happen and the independence of the
judiciary has been secured till date.

The Second Judges Appointments Case, (1993) 4 SCC 441 (selected excerpts
from the majority opinion)
In Second Judges case2 (1993), a Bench of nine Judges of the Supreme Court overruling First
Judges case1 held that the process of appointment of Judges to the Supreme Court and the
High Courts is an integrated “participatory consultative process” for selecting the best and
most suitable persons available for appointment. For appointment of Judges of the Supreme
Court, a Collegium comprising of the Chief Justice of India and two seniormost Judges of the
Supreme Court will take the final decision.
“In case of conflicting opinions by the constitutional functionaries, the opinion of the
judiciary “symbolised by the view of the Chief Justice of India” and formed in the manner
indicated, has primacy.” Through this process, the individual opinion of the Chief Justice of
India was substituted by the collective opinion of the Collegium of Judges and a Collegium
system came in place by a process of judicial interpretation; rather by judicial incorporation
of certain provisions in the Constitution.

The Third Judges Appointments Case, (1998) 7 SCC 739 (selected excerpts)
 In Third Judges case (1998), the view taken in Second Judges case was reiterated by
another nine-Judge Bench. It was held that the expression “consultation with the
Chief Justice of India” requires consultation with a plurality of Judges and the
individual opinion of the Chief Justice of India does not constitute “consultation”.

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 However, the composition of the Collegium, for appointment of Judges in the
Supreme Court, was expanded to consist of the Chief Justice of India and four
seniormost Judges rather than the two seniormost Judges. Here again, the Supreme
Court interpreted the expression “Chief Justice of India” differently for the purpose of
appointment for Judges of the Supreme Court and to the High Court.
 While in the case of appointment of Judges of the Supreme Court, the Chief Justice of
India would mean the Collegium comprising of the CJI and four seniormost Judges;
in the case of appointment of the Judges of the High Court, the Chief Justice of India
would mean the Collegium comprising of the CJI and two senior most Judges.

NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC)

 Parliament on four occasions proposed to amend the Constitution and set up a
National Judicial Appointment Commission. The Constitution (67th Amendment)
Bill, 1990 provided for setting up a National Judicial Commission (NJC) consisting of
the Chief Justice of India and two seniormost Judges of the Supreme Court; and for
the appointment of a Judge of the High Court, NJC was to consist of the Chief Justice
of India, the Governor/Chief Minister of the State concerned, the seniormost Judge of
the Supreme Court, the Chief Justice of the High Court and the seniormost Judge of
the High Court. The Bill was not taken up for consideration due to the dissolution of
the Lok Sabha in May 1991.
 The National Commission to Review the Working of the Constitution (Ncrwc) headed
by the former Chief Justice of India, Justice M.N. Venkatachaliah in his Report (2002)
recommended establishment of a National Judicial Commission comprising five
members, namely, the Chief Justice of India, two seniormost Judges of the Supreme
Court, the Union Minister for Law and Justice and one eminent person nominated by
the President after consulting the Chief Justice of India.
 The Constitution (98th Amendment) Bill, 2003 was introduced to set up an NJC for
appointment of Judges in terms of the recommendations of the Ncrwc. However, the
Bill modified the recommendation in respect of appointment of an eminent citizen, to
be nominated by the President of India in consultation with the Prime Minister of
India (instead of the Chief Justice of India) for a period of three years. This Bill was
also not passed in Parliament, due to the dissolution of the Lok Sabha in March 2004.
 The Constitution (120th Amendment) Bill, 2013 was introduced for establishment of
NJAC for appointment of the High Court and Supreme Court Judges. Parliament was

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 authorised to make law providing for composition of the Commission. This Bill was
passed by the Rajya Sabha on 5-9-2013, but before the Bill could be sent to the Lok
Sabha, it was dissolved in May 2014. Finally, the Constitution (121st Amendment)
Bill, 2014 was passed by both the Houses of Parliament and was ratified by most of
the State Legislative Assemblies. The Bill, on receipt of the assent of the President,
became the Constitution (99th Amendment) Act, 2014 and came into force on 13-4-
2015. Simultaneous with the passage of the Constitutional Amendment, Parliament
passed the National Judicial Appointment Commission Act, 2014.
 The Constitution 99th Amendment Act amended Article 124 and provided that
appointments and transfers would be on the recommendation of the National Judicial
Appointment Commission (NJAC). Article 124-A was inserted providing for the
constitution of NJAC comprising the Chief Justice of India, two seniormost Judges of
the Supreme Court, the Union Law Minister and “two eminent persons” to be
nominated by a committee comprising the Prime Minister, the Chief Justice of India
and the Leader of the Opposition. One of the two nominated members must belong to
the Scheduled Castes, the Scheduled Tribes, OBC, minorities or women....

NJAC STRUCK DOWN BY THE SUPREME COURT

 Fourth Judges case4 (2016), by majority (J.S. Khehar, Madan B. Lokur and Adarsh
Kumar Goel, JJ.), struck down the Constitution 99th Amendment Act and the NJAC
Act on the ground that the amendment impedes the independence of the judiciary
which is a basic structure of the Constitution. It was held that Article 124-A does not
provide an “adequate representation” to the judicial component in NJAC, and NJAC
is “insufficient to preserve the primacy of the judiciary” in the matter of selection and
appointment of Judges. The inclusion of the Union Law Minister as an ex officio
Member of NJAC impinges upon the principles of “independence of the judiciary”, as
well as, “separation of powers”. On the same analogy, inclusion of two “eminent
persons” as Members of NJAC is ultra vires the Constitution.
 Jasti Chelameshwar, J. delivered his dissenting opinion with the preface: (Supreme
Court Advocates-on-Record case4, SCC p. 740, para 1113) 1113. We the members of
the judiciary exult and frolic in our emancipation from the other two organs of the
State. But have we developed an alternate constitutional morality to emancipate us
from the theory of checks and balances, robust enough to keep us in control from
abusing such independence? Have we acquired independence greater than our

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 intelligence, maturity and nature could digest? Have we really outgrown the malady
of dependence or merely transferred it from the political to judicial hierarchy? Kurian
Joseph, J. agreed with the majority opinion in view of binding ratio in Second2 and
Third3Judges case. He, however, said: (Supreme Court Advocates-on-Record case4,
SCC p. 689, para 990)
 990. All told, all was and is not well. … the present Collegium System lacks
transparency, accountability and objectivity. … the dictatorial attitude of the
Collegium seriously affecting the self-respect and dignity, if not, independence of
Judges, … ...

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