1. Evolution of the Constitution of India.

2. Constitutionalism
3. Aims and Objectives of the Constitution.
4. Salient Features of the Constitution.
5. Separation of Power.
6. Rule of Law.
7. Doctrine of territorial nexus.
8. Harmonious construction.
9. Pith and substance
10. Colorable Legislation
11. Panchayat Raj
12. President - Power and Functions
13. PM & Council of members
14. Lok Sabha - Rajya Sabha
15. Privileges of the legislature / MP
16. The Anti Defection Law (Schedule VII)
17. Independence of Judiciary
18. Emergency Provisions.
19. Amendment.

ANTI - DEFECTION LAW

The 10th Schedule of the Indian Constitution (which talks about the anti-defection law) is designed to
prevent political defections prompted by the lure of office or material benefits or other like
considerations. The Anti-defection law was passed by Parliament in 1985 and reinforced in 2002.

● The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’
was inserted by the 52nd Amendment (1985) to the Constitution.
● ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing
group”.
● The anti-defection law was enacted to ensure that a party member does not violate the mandate of
the party and in case he does so, he will lose his membership of the House. The law applies to
both Parliament and state assemblies.
● The Anti-Defection Law aims to prevent MPs from switching political parties for any personal
motive.

10th Schedule – Provisions under Anti-Defection Law

The Tenth Schedule includes the following provisions with regard to the disqualification of MPs and
MLAs on the grounds of defection:

Grounds for disqualification:

● If an elected member gives up his membership of a political party voluntarily.

● If he votes or abstains from voting in the House, contrary to any direction issued by his political
party.
● If any member who is independently elected joins any party.
● If any nominated member joins any political party after the end of 6 months.
● The decision on disqualification questions on the ground of defection is referred to the Speaker or
the Chairman of the House, and his/her decision is final.
 ● All proceedings in relation to disqualification under this Schedule are considered to be
proceedings in Parliament or the Legislature of a state as is the case.

Exceptions under the Anti Defection Law

● In the situation where two-thirds of the legislators of a political party decide to merge into another
party, neither the members who decide to join nor the ones who stay with the original party will
face disqualification.
● Any person elected as chairman or speaker can resign from his party, and rejoin the party if he
demits that post.
● Earlier, the law allowed parties to be split, but at present, this has been outlawed.

Deciding Authority

● Any question regarding disqualification arising out of defection is to be decided by the presiding
officer of the House.

Is the decision of the Presiding Officer subject to judicial review?

● Originally, the Act provided that the presiding officer’s decision was final and could not be
questioned in any court of law. But, in the Kihoto Hollohan case (1992), the Supreme Court
declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction
of the SC and the high courts.
● The court held that while deciding a question under the 10th Schedule, the presiding officer
should function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject
to judicial review on the grounds of mala fides, perversity, etc. But, the court rejected the
argument that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the
ground of political bias.
● However, it held that there might not be any judicial intervention until the Presiding Officer gives
his order. A good example to quote in this respect was from 2015 when the Hyderabad High
Court declined to intervene after hearing a petition which alleged that there had been a delay by
the Telangana Assembly Speaker in taking action against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer should decide?

● There is no time limit as per the law within which the Presiding Officers should decide on a plea
for disqualification. The courts also can intervene only after the officer has made a decision, and
so the only option for the petitioner is to wait until the decision is made.
● There have been several cases where the Courts have expressed concern about the unnecessary
delay in deciding such petitions.
● In a few cases, there have been situations where members who had defected from their political
parties continued to be House members, because of the delay in decision-making by the Speaker
or Chairman.
● There have also been instances where opposition members have been appointed ministers in the
government while still being members of their original political parties in the state legislature.
How have the Courts interpreted the law while deciding on related matters?

● The SC has interpreted different provisions of the law.

● The phrase ‘Voluntarily gives up his membership’ has a wider suggestion than resignation.
● The law says that a member can be disqualified if he ‘voluntarily gives up his membership’.
However, the SC has interpreted that without 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 considered as having resigned. Recently, the Chairman of the Upper House of
Parliament disqualified two Janata Dal leaders from the house based on the allegation that was
indulging in anti-party politics, and they had “voluntarily” given up their membership of the party
(which is not synonymous to resignation as per the SC orders).

Does the anti-defection law affect legislators’ ability to make decisions?

● The anti-defection law aims to maintain a stable government by ensuring that the legislators do
not switch sides. However, this law also limits a legislator from voting according to his
conscience, judgement and electorate’s interests.
● This kind of a situation hinders the oversight functions of the legislature over the government, by
making sure that members vote based on the decisions taken by the party leadership, and not
based on what their constituents would like them to vote for.
● Political parties issue directions to MPs on how to vote on most issues, irrespective of the nature
of the issue.
● Anti-defection does not provide sufficient incentive to an MP or MLA to examine an issue
in-depth and ponder over it to participate in the debate.
● The Law breaks the link between the elected legislator and his elector.
● Importantly, 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).

What are some of the judicial observations regarding defection in India?

Some of the important cases related to anti-defection in India include

Kihoto Hollohan vs. Zachillhu and Others (1992): In this case, the Supreme Court of India upheld the
constitutionality of the law and ruled that the provisions were necessary to prevent the destabilization of
governments and to ensure the integrity of the electoral process.

G. Viswanathan vs. Hon'ble Speaker, Tamil Nadu Legislative Assembly (1995): In this case, the
Supreme Court ruled that the Speaker of a legislative assembly has the power to decide on cases of
defection and that the decision of the Speaker is final and cannot be challenged in a court of law.

Ravi S. Naik vs. Union of India (1994): In this case, the Speaker or Chairman of the relevant legislative
body can disqualify an elected representative for defection.
 What is the Doctrine of Harmonious Construction?
Parliament creates different laws and rules, along with constitutional provisions, using their specific
powers. While making these laws, it’s essential to be very careful, but sometimes conflicts arise because
these rules can overlap in their application. This happens because when making these rules, lawmakers
may not have foreseen every possible situation. To resolve these conflicts, courts have developed certain
principles and rules for interpreting laws. One such rule is the Doctrine of Harmonious Construction.

When there’s a conflict between two or more laws or different parts of the same law, we need to use the
Rule of Harmonious Construction. Every law has a purpose and a legal intent and it should be understood
as a whole. When using the Harmonious Construction rule in the interpretation of statutes, the
interpretation should be consistent with all parts of the law. In cases where it’s impossible to reconcile
both provisions, the court’s decision on the matter prevails.

The underlying idea behind the Principle of Harmonious Construction is that the legislature probably
didn’t intend to create contradictions in its laws. The legislature’s intention is for every provision to have
an effect. However, when two provisions conflict, it may be impossible to follow both of them and as a
result, one provision becomes ineffective, which goes against the fundamental principle of “ut res magis
valeat quam pereat” (that a thing is better understood so that it may have an effect than that it should be
made void). Therefore, the court should interpret the laws in a way that removes the inconsistency and
allows both provisions to remain in force, working together harmoniously.

Meaning of the Doctrine of Harmonious Construction

The Doctrine of Harmonious Construction is an essential rule for interpreting statutes. This doctrine states
that when there’s a conflict between two or more statutes or between different parts or provisions of a
statute, we should interpret them in a way that harmonises them. This means that when there are
inconsistencies, we should try to reconcile the conflicting parts so that one part doesn’t negate the purpose
of another.

The Doctrine of Harmonious Construction is rooted in a fundamental legal principle that every statute is
created with a specific purpose and intent. Therefore, it should be understood as a whole. We usually
assume that what Parliament gives with one hand, it doesn’t intend to take away with the other. The goal
is to give effect to all the provisions. To avoid conflicts, the interpretation of the statute should be
consistent with all its parts.

If it’s impossible to harmoniously interpret or reconcile the different parts or provisions, then it’s the
responsibility of the judiciary to make the final decision and give its judgment. Courts aim to interpret the
law in a way that resolves conflicts between the provisions, making the statute consistent as a whole and
ensuring it’s understood accordingly.

Origin of Doctrine of Harmonious Construction

The Doctrine of Harmonious Construction has its origins in court interpretations of various cases. Its
creation can be traced back to the first amendment to the Constitution of India, particularly the landmark
case of Sri Shankari Prasad Singh Deo vs. Union of India (AIR 1951 SC 458). This case revolved
around a conflict between Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy)
of the Indian Constitution.

In this case, the court applied the Harmonious Construction Rule to resolve the disagreement. It
concluded that Fundamental Rights, which are rights granted against the State, could be limited under
certain circumstances and modified by Parliament to align with constitutional provisions. Both sets of
rights were given importance and it was established that Fundamental Rights and Directive Principles of
State Policy are complementary aspects that must work together for the greater good.

Historically, this theory of harmonious construction in interpretation of statutes evolved through legal
precedents, notably in the case of C.P and Berar General Clauses Act, 1914. In this case, the court used
the Rule of Interpretation to avoid any overlap or confusion between entries 24 and 25 of the State List
and to interpret them in a logical sequence by determining the scope of the subjects in question.

Principles that Govern the Doctrine of Harmonious Construction

In the landmark case of Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000), the
Supreme Court established five fundamental principles governing the rule of harmonious construction:

1. Courts should make every effort to avoid conflicts between seemingly conflicting provisions and
should attempt to interpret these provisions in a way that harmonises them.

2. A provision in one section of the law should not be used to nullify a provision found in another section
unless the court is unable to find a way to reconcile their differences despite diligent effort.

3. In cases where it’s impossible to completely reconcile inconsistencies between provisions, the courts
must interpret them in a manner that gives effect to both provisions to the greatest extent possible.

4. Courts must consider that an interpretation rendering one provision redundant or useless goes against
the essence of harmonious construction and should be avoided.

5. Harmonising two contradictory provisions means preserving and not destroying any statutory provision
or rendering it ineffective.

Application of the Doctrine of Harmonious Construction in in Interpretation of Statutes

Courts have outlined specific procedures for the proper application of the Doctrine of Harmonious
Construction in the interpretation of statutes based on extensive review of various case laws. These
procedures are as follows:

● Equal Importance: Both conflicting provisions should be given equal importance to minimise
their inconsistency.
● Comprehensive Reading: Provisions that are fundamentally inconsistent or conflicting should be
read in their entirety and the entire enactment should be taken into account.
● Broader Provision Consideration: When dealing with contradictory provisions, the court should
consider the provision with a broader scope or applicability.
● Analysing the Broader Law: In the comparison between broad and narrow provisions, the court
should analyse the broader law to check for any additional considerations. If harmonising both
clauses can be achieved by giving them separate and full weight, no further analysis is needed.
This is because the legislature was well-aware of the situation they intended to address when
enacting the provisions and all provisions should be given full effect.
● Non-Obstante Clause Usage: When one provision of the law appears to override the powers
conferred by another provision, a non-obstante clause should be applied if available.
● Establishing Legislative Intent: It’s crucial for the court to determine the extent to which the
legislature intended to grant one provision overriding authority over another.
Doctrine of Harmonious Construction Case Laws
● Sri Jagannath Temple Managing Committee v. Siddha Math and Others (2015)
In the case of Sri Jagannath Temple Managing Committee v. Siddha Math and Others (2015), a conflict
arose between the Sri Jagannath Temple Act, 1955 and the Orissa Estate Abolition Act, 1951. The
Supreme Court found that Section 2(oo) of the Orissa Estates Abolition Act conflicted with Sections 5
and 30 of the Shri Jagannath Temple Act, making it impossible for both provisions to coexist. The Court
applied the rule of harmonious construction but noted that when statutes are irreconcilable, one must take
precedence.
The Court identified that it was only the first part of the proviso in Section 2(oo) of the OEA Act that
contradicted the Jagannath Temple Act. If this part were given effect, it would render Sections 5 and 30 of
the Jagannath Temple Act meaningless. The Court emphasised that in cases involving the application of
specific and general laws, the court must scrutinise the nature of the case. When two laws are in absolute
conflict, the limitations and exceptions imposed by the Legislature must be examined.
The Supreme Court held that the special provisions of the Jagannath Temple Act should prevail, applying
the principle of “generalia specialibus non derogant.”

● Venkataramana Devaru v. State of Mysore (1957)

In Venkataramana Devaru v. State of Mysore (1957), trustees of Sri Venkataramana temple filed a suit
under Section 92 of the Code of Civil Procedure, 1908, challenging the exclusion of Harijans from Hindu
temples after the Madras Temple Entry Authorisation Act (Madras V of 1947). They claimed the temple
was private and exclusively for Gowda Saraswath Brahmins, exempt from the Act. The Government
disagreed.
Trustees argued the temple wasn’t defined in the Act and Section 3 violated Article 26(b) of the Indian
Constitution. The Trial Court ruled against them, but the High Court granted a limited decree, allowing
the exclusion of the general public during certain ceremonies.
The Supreme Court clarified the interpretation of the Madras Temple Entry Authorisation Act, Article
25(2)(b) and Article 26(b) of the Constitution. It held that Article 25(2) broadly governed both Articles
and Article 26(b) should be read in light of Article 25(2)(b).
The Apex Court dismissed the appeal and the application for special leave to appeal.

● State of Rajasthan v. Gopi Kishan Sen (1992)

In this case, the respondent was appointed as an untrained teacher in Rajasthan in 1972 and the State of
Rajasthan refused his salary claim based on the pay scale of Rs. 160-360/- per month, which was granted
only to trained teachers. Instead, the respondent was initially appointed at a fixed salary of Rs. 130/- per
month until he became trained, in accordance with the Rajasthan Civil Services (New Pay Scales) Rules,
1969 and the Rajasthan Education Subordinate Service Rules, 1971.

The High Court partially struck down the provision fixing the salary at Rs. 130/- per month as
discriminatory, ordering the appellant to pay the respondent at a higher rate from 1972 to 1982. This
decision was challenged by the appellant.

The Supreme Court emphasised the principle of harmonious construction to uphold and give effect to all
provisions without rendering any of them powerless. Rule 29 of the Rajasthan Services Rules, 1951,
regarding pay scale increments, was general, while the Rajasthan Civil Services (New Pay Scales) Rules,
1969, had a special provision for untrained teachers. This case invoked the maxim ‘generalibus specialia
derogant,’ where a special provision prevails over a general one on the same subject.
 ● Unni Krishnan, J.P., etc. v. State of Andhra Pradesh and Others (1993)
The Unni Krishnan case was significant for the Right to Education in India, as it addressed the question of
the ‘Right to life’ under Article 21 of the Indian Constitution. Article 21 guarantees every citizen the right
to education, raising issues regarding whether citizens have a Fundamental Right to education for
professional degrees like medicine and engineering and whether the Constitution guarantees education to
all citizens.

A writ petition was filed to determine if the ‘Right to life’ under Article 21 includes the right to education,
including professional degrees, for all Indian citizens.

The Supreme Court ruled that the right to basic education is implied by the ‘Right to life’ under Article 21
when read with Article 41 of the directive principles on education. However, the Court clarified that there
is no fundamental right to education for professional degrees derived from Article 21. On the matter of
Fundamental Rights versus Directive Principles of State Policy (DPSP), the Court emphasised that these
provisions in Part Three and Part Four of the Constitution are complementary and should be interpreted
harmoniously, as they collectively represent the social conscience of the Indian Constitution.

● Sirsilk v. Government of Andhra Pradesh (1963)

In the Sirsilk Company case, a dispute arose between the company, the Government of Andhra Pradesh
and their employees. The matter was taken to an Industrial Tribunal, which issued its award in September
1957. The award was to be published in the Official Gazette of the Government of Andhra Pradesh.
However, both the corporation and the employees jointly requested that the award not be published
because they had already resolved their dispute amicably. The government declined this request, leading
the parties to file a writ application with the High Court to stop the publication of the award.

The High Court rejected the application, citing the mandatory nature of Section 17 in the Industrial
Disputes Act, 1947, which required the government to publish the award. The Sirsilk Company and the
employees then appealed to the Supreme Court.

They argued that since they had reached a binding resolution under Section 18(1) of the Industrial Dispute
Act, the government’s award under Section 17(1) should not be published. They emphasised that the
resolution should be honored to maintain industrial peace. The government, however, pointed out the
mandatory requirement of Section 17(1) to issue the award within 30 days of receipt, questioning the need
for publication when the dispute was resolved.

The Supreme Court recognised the conflict between Section 17 and Section 18 of the Act and aimed to
preserve the Act’s primary purpose. It concluded that the government should withdraw the publication of
the award, allowing the parties to proceed with their resolution. The Court held that, despite the
mandatory nature of Sections 17 and 18, since the parties had amicably settled their dispute, there was no
dispute left to be resolved through the publication of the award. Therefore, the Supreme Court directed
the government not to publish the award in compliance with Section 17(1) and the appeal was upheld.

● K.M. Nanavati v. The State of Maharashtra (1961)

In the case of K.M. Nanavati v. The State of Maharashtra (1961), a Navy Commander, KM Nanavati, was
accused of murdering his wife’s secret lover, Prem Ahuja. He was charged under Section 302 and Section
304 of the Indian Penal Code (IPC). The trial took place before a Sessions Judge in Bombay and a special
jury found him not guilty under both sections.
However, the Sessions Judge disagreed with the jury’s decision, believing it was not supported by the
evidence. He referred the case to the High Court of Bombay under Section 307 of the Code of Criminal
Procedure, 1973, providing reasons for his view. The High Court agreed with the Sessions Judge, stating
that considering the circumstances, the offense could not be reduced from murder to culpable homicide
not amounting to murder. The High Court convicted Nanavati of murder and this decision was further
appealed in the Supreme Court.

During this time, the Governor of Bombay, using the power granted under Article 161 of the Indian
Constitution, ordered Nanavati’s suspension. This decision was challenged because it occurred while the
case was pending before the Supreme Court. To resolve the conflict between the executive and the
judiciary, the Supreme Court applied the principle of harmonious construction. It held that Article 161 and
the Governor’s suspension order were not applicable when a case was sub-judice or pending before the
court.

This case is notable not only for its impact on the abolition of jury trials in India but also for its
clarification of the relationship between executive and judicial powers in matters of suspension during
ongoing legal proceedings.

Conclusion
The Doctrine of Harmonious Construction is a legal principle used to interpret conflicting or seemingly
contradictory provisions within laws or statutes in a way that reconciles them and gives effect to all
provisions, without rendering any of them meaningless. It aims to achieve a harmonious balance between
different legal provisions while upholding the overall intent and purpose of the law.

Under this doctrine of Harmonious Construction in interpretation of statutes, courts strive to avoid
conflicts between provisions and when conflicts arise, they seek to interpret them in a manner that
preserves their coexistence and effectiveness. It is a fundamental principle of statutory interpretation that
helps maintain the coherence and integrity of a legal framework.

In essence, the Doctrine of Harmonious Construction ensures that legal provisions are interpreted in a
way that minimises inconsistency and promotes a comprehensive and coherent understanding of the law’s
intent, allowing different provisions to work together harmoniously.
 Introduction
Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they
can perform their duties or can function properly without any hindrances. Such privileges are granted as
they are needed for democratic functioning. These powers, privileges and immunities should be defined
by the law from time-to-time. These privileges are considered as special provisions and have an
overriding effect in conflict.

Privileges mentioned in the constitution

● Freedom of speech and publication under parliamentary authority
This is defined under Article 105(1) and clause (2). It gives the members of parliament freedom of speech
under clause (1) and provides under Article 105(2) that no member of parliament will be liable in any
proceedings before any Court for anything said or any vote given by him in the Parliament or any
committee thereof. Also, no person will be held liable for any publication of any report, paper, votes or
proceedings if the publication is made by the parliament or any authority under it. The same provisions
are stated under Article 194, in that members of the legislature of a state are referred to instead of
members of parliament. Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about
freedom of speech. Article 105 applies to the members of parliament not subjected to any reasonable
restriction. Article19(1)(a) applies to citizens but are subject to reasonable restrictions. Article 105 is an
absolute privilege given to the members of the parliament but this privilege can be used in the premises of
the parliament and not outside the parliament. If any statement or anything is published outside the
parliament by any member and if that is reasonably restricted under freedom of speech then that published
article or statement will be considered as defamatory

CASE LAW
Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613
The appellant is an elected member of the West Bengal Legislative Assembly. The appellant had an
intention to ask certain questions in the assembly and therefore he gave the notice for the same. The
questions to be asked in the assembly were refused in compliance with the rules of procedure for the
conduct of the business in the assembly. But the appellant published those questions he was not allowed
to ask in the assembly in a local newspaper called JANAMAT.
The first respondent, who was then functioning as a Sub-Divisional Magistrate and because of whose
conduct the matter of questions arose, filed a complaint against the appellant and two others, the editor
and the printer and publisher of those questions.
The petition contained the fact that the appellant had made slanderous accusations against him with an
intention to be read by the members of the public. These accusations were false and the appellant
published them, having an intention of harming the reputation of the complainant. He also alleged that
publishing such false questions in the journal first requires prior permission by the government in
instituting the legal proceeding against the public servant.
In this case, it was held that the provisions of Article 194 even though disallowed by the speaker were a
part of the proceedings of the house and publication for the same will not attract any sections of the Indian
Penal Code.
He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but also give the right
to ask questions and publish them in the press.

P.V Narasimha Rao vs State (1998)

The facts of the case are – some of the MP’s received bribes to vote against the motion of no-confidence
against the Prime Minister P.V. Narsimha Rao. He was charged under IPC and Prevention of Corruption
Act on the grounds that he bribed some MPs to vote against the no-confidence motion when he was
serving as the Prime Minister. In this case, the question arose that under Article 105(2) does any member
of parliament have any immunity to protect himself in criminal proceedings against him?
It was held by the majority of the Court that under Article 105(2) the members of the parliament will get
immunity and thus, the activity of taking bribes by the MP’s will get immunity despite anything said by
them or any vote given by them in the Parliament. The Court further explained that the word “anything”
here will be interpreted as a wider term. The Court interpreted the term “anything” in a wider sense and
did not prosecute P.V. Narsimha Rao

● Power to make rules

The Parliament has the power, which is given by the Constitution of India, to make its own rules but this
power is subjected to the provisions of the Constitution. Though it can make its own rules, the rules
should not be made for its own benefit. If they make any rule which infringes any provision of the
Constitution then it would be held as void.

● Internal independence/autonomy
For the effective working of both the houses of parliament and their members, internal independence
should exist without the interference of any outside party or person. The houses can deal with their
respective issues internally without any interference of the statutory authority. The Indian Judiciary might
not interfere with the proceedings or issues dealt in the parliament or by the members in the course of
their business. Nevertheless, it may interfere in the proceedings if it is found to be illegal or
unconstitutional.

● Freedom from being arrested

The member of parliament cannot be arrested 40 days before and 40 days after the session of the house. If
in any case a member of Parliament is arrested within this period, the concerned person should be
released in order to attend the session freely.

● Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening any of the
members. The strangers may attempt to interrupt the sessions.

● Right to prohibit the publication of its reporters and proceedings

The right has been granted to remove or delete any part of the proceedings that took place in the house.

● Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right to call for the
session of the Legislative assembly. But it does not have any authority in interrupting the proceedings by
directing the speaker of the assembly.

● Right to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or maybe non-members
commit contempt or breach any of the privileges given to him/her, the houses may punish the person. The
houses have the right to punish any person for any contempt made against the houses in the present or in
the past.
Privileges and fundamental rights
Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants freedom of speech
to the citizens. It is subjected to reasonable restrictions. These restrictions are:-
● Sovereignty and integrity of India should be maintained,
● Security of the states should be maintained,
● Public order should not be disturbed,
● Decency and morality should be maintained,
● Defamation should be avoided,
● Incitement to an offence should be avoided,
● Contempt of court should be avoided,
● Friendly relations with foreign states should be maintained.
Where on the other hand the members of parliament have been granted powers, privileges etc. their
powers or privileges are absolute unlike fundamental rights for the citizens.
The Parliament enjoys mostly all the supreme powers while making laws and exercising its power to the
best possible extent because of the absolute nature of its powers and privileges. The powers of the
legislators are too wide as they decide their own privileges, include points which can breach the laid down
privileges, and also decide the punishment for that breach.
Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or
pass the laws on the powers, privileges and immunities of the members of the parliament and members of
the legislative assembly.

CASE LAW
Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952
The facts of the case:- The U.P. The Legislative Assembly issued a warrant against the Home Minister
who was arrested from his residence in Bombay on the grounds of contempt of the house. The Home
Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article
22(2) violates his fundamental right.
The Supreme Court accepted the arguments and ordered his release according to Article 22(2). He was
not presented before the magistrate within 24hrs of his arrest or detention. Not presenting him before the
magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was opined
that Article 105 and Article 194 cannot supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna. He published a
report on the proceedings of the Bihar Legislative Assembly and the reports were said to be removed by
the speaker.
The editor was presented before the Legislative Assembly to give reasons for the breach of privilege
committed by him. At first, he was held guilty for his conduct. Then, in an appeal, the editor under Article
19 (1)(a) argued that he has a right to freedom of speech. But the Court denied all the arguments based on
Article 19(1) (a) as it is a general provision and Article 194 is a special provision. If at any time both of
these articles come under any conflict the latter will prevail over the former. As the general provision
cannot overrule the effect of the special provision.
It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of
Harmonious Construction (every statute should be read as a whole and interpretations consistent of all the
provisions of the statute should be adopted when in conflict of any statute or any part of the statute)
should be applied.
 SEPARATION OF POWER

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of separation of powers is not adhered to strictly. However, a system of checks and balances
have been put in place in such a manner that the judiciary has the power to strike down any
unconstitutional laws passed by the legislature.

Today, most constitutional systems do not have a strict separation of powers between the various organs
in the classical sense because it is impractical. In the following sections, we will see the prevailing system
in India, what the relationship between each organ is, and the constitutional provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each organ of the
government are.

What is the Legislature?

The chief function of the legislature is to enact laws.

● It is the basis for the functioning of the other two organs, the executive and the judiciary.

● It is also sometimes accorded the first place among the three organs because until and unless laws
are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the
state.

● It is the administrative head of the government.

● Ministers including the Prime/Chief Ministers and President/Governors form part of the
executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and administers
justice to all citizens.

● The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

● It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

For more on the Indian Judiciary, click on the linked article.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept

● This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he
described the three agencies of the government as General Assembly, Public Officials and
Judiciary.
 ● In the Ancient Roman Republic too, a similar concept was followed.
● In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a
highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).
● His work is based on an understanding of the English system which was showing a propensity
towards a greater distinction between the three organs of government.
● The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or a group of
individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state,
safeguard freedom for all and allocate each function to the suitable organs of the state for effective
discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive
and the Judiciary. Although different authors give different definitions, in general, we can frame three
features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one organ
should not be a part of another organ.

2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate
only).

Thus, these broad spheres are determined, but in a complex country like India there often arises conflict
and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State? Whenever there is a
concentration of power in one centre/authority, there is bound to be greater chances of maladministration,
corruption, nepotism and abuse of power. This principle ensures that autocracy does not creep into a
democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of
Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty

3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not
specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the
three organs are specifically mentioned in the Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of powers.
Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But,
since this falls under the Directive Principles of State Policy, it is not enforceable.

Article 123: The President, being the executive head of the country, is empowered to exercise legislative
powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the
Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on one another by
certain provisions.

● The judiciary has the power of judicial review over the actions of the executive and the
legislature.

● The judiciary has the power to strike down any law passed by the legislature if it is
unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
● It can also declare unconstitutional executive actions as void.
● The legislature also reviews the functioning of the executive.
● Although the judiciary is independent, the judges are appointed by the executive.
● The legislature can also alter the basis of the judgment while adhering to the constitutional
limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that
the discretionary power bestowed on any one organ is within the democratic principle.

Judicial Pronouncements Upholding Separation of Powers Doctrine

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament
is subject to the basic features of the Constitution. So, any amendment violating the basic features will be
declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor’s pardon of a convict
unconstitutional.

Other SC Judgements

● The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian
Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity
but the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our Constitution does not
contemplate assumption by one organ or part of the state of functions that essentially belong to
another.

● In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution there is a
separation of powers in a broad sense only. A rigid separation of powers as under the American
Constitution or under the Australian Constitution does not apply to India. The Court further held
that adjudication of a specific dispute is a judicial function that Parliament even acting under a
constitutional amending power cannot exercise. Apart from difficulties inherent in the
enforcement of the strict doctrine of separation of powers in the functioning of the modern
 government, there is also an inherent difficulty in defining, in workable terms, the division of
powers into executive, legislative and judicial.
● In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has invested the
Constitutional Courts with the power to invalidate laws made by Parliament and the state
legislatures transgressing Constitutional limitations. Where an Act made by the legislature is
invalidated by the Courts on the basis of legislative incompetence, the legislature cannot enact a
law declaring that the judgement of the Court shall not operate; it cannot overrule or annul the
decision of the Court. But this does not mean that the legislature which is competent to enact the
law cannot re-enact the law. Similarly, it is open to the legislature to alter the basis of the
judgement. The new law or the amended law can be challenged on other grounds but not on the
ground that it seeks to ineffectuate or circumvent the decision of the court. This is what is meant
by “checks and balances” inherent in a system of government incorporating separation of powers.

Constituent Assembly and Separation of Powers

There are chiefly two reasons why the Constituent Assembly did not insert the separation of powers
doctrine explicitly in the Constitution.

1. The founding fathers thought that it was too late to insert this principle as the Constitution was
already drafted.

2. Also, India adopted the British parliamentary form of government. So, they thought it was better
to avoid adopting a complete separation of powers doctrine like the American model.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the
system of checks and balances ensures that each one can impose checks on the other.

● The judiciary can strike down laws that it considers unconstitutional or arbitrary.

● The legislature, on its part, has protested against judicial activism and tried to frame laws to
circumvent certain judgements.
● Judicial activism is said to be against the principle of separation of powers.
● There have been instances where the courts have issued laws and policies through judgements.
For example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.
● In 2010, the SC directed the government to undertake the distribution of food grains.
● If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the
executive, it is called judicial overreach.

Judicial Supremacy and Parliamentary Sovereignty

To strike a balance between the judiciary and the legislature, the Indian constitution uses the following
principles:

● The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.

● The doctrine of Judicial Supremacy has been adapted from the American Constitution.
● The power of judicial review of the Supreme Court of India is narrower in scope than the
Supreme Court of the USA.
● The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the
‘due process of law’ provided in the American Constitution.
 ● The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary
sovereignty and the judicial supremacy of the USA.
● The Supreme Court, on the one hand, can declare the parliamentary enactments as
unconstitutional using the power of judicial review.
● The Parliament, on the other hand, can amend a large chunk of the Constitution using its
constituent power.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively
responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of
the government and hold it accountable for its actions.

● In a parliamentary form of government, the executive is not separated from the legislature in that
the members of the council of ministers are members of the legislature.

● The executive loses power when it loses the confidence of the legislature. The executive/council
of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the
legislature controls the executive through a vote of no-confidence.
● The head of government and head of state are different. The head of the government is the Prime
Minister while the head of state is the President.
● The parliament makes laws in general broad terms and delegates the powers to the executive to
formulate detailed policies and implement them.
● In a presidential form of government, the executive is not accountable to the legislature. One
person is the head of both the State as well as the government. A minister need not be from the
legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent. This is because, it is
believed that for a democracy to remain efficient and effective, the judiciary must be independent. The
judiciary is said to be the guardian of the Constitution. If the executive also assumes judicial powers, that
sort of government tends to become oppressive.

However, there are some judicial functions which are performed by the executive as well. They are:

1. The appointments of the judges are made by the executive.

2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct
judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the power to hear
and decide cases involving particular fields of administrative activity.

Read more about the Supreme Court of India.

The judiciary also performs some executive functions. It can review the actions of the executive and
declare them void if found unconstitutional.

Checks and Balances

The strict separation of powers that was envisaged in the classical sense is not practicable anymore, but
the logic behind this doctrine is still valid. The logic behind this doctrine is of polarity rather than strict
classification meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence,
the doctrine can be better appreciated as a doctrine of checks and balances.

● In Indira Nehru Gandhi’s case, Chandrachud J. observed – No Constitution can survive without a
conscious adherence to its fine checks and balances. Just as courts ought not to enter into
problems intertwined in the political thicket, Parliament must also respect the preserve of the
courts. The principle of separation of powers is a principle of restraint which “has in it the
precept, inmate in the prudence of self-preservation; that discretion is the better part of valour”.

● The doctrine of separation of powers in today’s context of liberalization, privatization and

globalization cannot be interpreted to mean either “separation of powers” or “checks and balance”
or “principles of restraint”, but “community of powers” exercised in the spirit of cooperation by
various organs of the state in the best interest of the people.

Judicial Overreach

The Supreme Court has been accused time and again of pronouncing judgements that are often termed as
judicial legislation. This happens when in the guise of giving guidelines and creating principles, they
assume the powers of the legislature, for instance, by laying down the basic structure doctrine, the
Supreme Court has put limitations on the legislature’s power to make and amend laws. The judiciary
through the collegium system has also been accused of infringing on powers of other branches. The
essential function of the judiciary is to interpret the law rather than to be keen in the appointment of
judges. After all, ours is a parliamentary form of democracy wherein parliamentarians are elected by the
people and they have to face the people, they are filling the slogan of “We the People”; as compared to
this, judges are enjoying fixed tenure. They are accountable to none as such and they should concentrate
on justice delivery rather than the appointments.

Evolution of Constitution.

The evolution of the Constitution of India is a fascinating journey that reflects the country's transition
from a colonial regime to a sovereign democratic republic. Below is a detailed exploration of its
evolution, with relevant laws and milestones explained:

Pre-Independence Era: Colonial Foundations

The evolution of India’s Constitution began under British colonial rule with laws aimed at controlling the
colony.

1. Regulating Act of 1773

First legislative intervention by the British Parliament in Indian affairs.

Established a central administration in Bengal.

Introduced a Governor-General in Bengal (Warren Hastings was the first).

Set up the Supreme Court of Calcutta in 1774.

2. Pitt’s India Act, 1784

Distinguished between the commercial and administrative roles of the East India Company.

Established dual control by the British Government and the Company.

3. Charter Acts (1793, 1813, 1833, 1853)

Allowed British Parliament to renew the East India Company’s charter.

Charter Act of 1833: Centralized administration, created the post of Governor-General of India (Lord
William Bentinck), and ended the monopoly of the East India Company.

Charter Act of 1853: First to introduce a legislative council and allow Indians to compete for
administrative services.

4. Government of India Act, 1858

After the Revolt of 1857, British Crown took direct control of India.

Created the post of Secretary of State for India.

Ended the East India Company’s rule.

5. Indian Councils Acts (1861, 1892, 1909)

Indian Councils Act, 1861: Introduced a legislative council in provinces.

Indian Councils Act, 1892: Expanded the powers of the legislative councils.

Indian Councils Act, 1909 (Morley-Minto Reforms): Introduced separate electorates for Muslims,
marking the beginning of communal representation.

6. Government of India Act, 1919 (Montagu-Chelmsford Reforms)

Introduced dyarchy in provinces (division of subjects into reserved and transferred categories).

Established bicameralism at the central level (Council of State and Legislative Assembly).

7. Government of India Act, 1935

A major milestone in constitutional development.

Proposed an all-India federation (though never implemented).

Introduced provincial autonomy.

Provided for a Federal Court.

Extended the principle of communal electorates.

Constituent Assembly and Formation of the Indian Constitution

Cripps Mission (1942) and Cabinet Mission (1946)

Proposed frameworks for India’s self-rule.

Cabinet Mission Plan of 1946 led to the formation of the Constituent Assembly.

Indian Independence Act, 1947

Passed by the British Parliament to grant independence to India and Pakistan.

Partitioned British India into two dominions.

Ended British rule in India.

Provided the framework for India's transition until a permanent Constitution was adopted.

Making of the Indian Constitution

1. Constituent Assembly (1946–1950)

Drafted the Constitution of India.

Led by Dr. B.R. Ambedkar as the Chairman of the Drafting Committee.

Key influences: Government of India Act, 1935, principles of democracy, socialism, federalism, and
justice.

2. Adoption of the Constitution

The Constitution was adopted on 26 November 1949 and came into force on 26 January 1950.

Declared India a sovereign, socialist, secular, democratic republic.

Post-Independence Constitutional Evolution

1. Amendments

The Constitution has been amended over 100 times to reflect changing socio-political needs.

Significant amendments include:

1st Amendment (1951): Added the Ninth Schedule to protect land reforms.

42nd Amendment (1976): Introduced the terms “socialist” and “secular,” and expanded the scope of
fundamental duties.

44th Amendment (1978): Restored civil liberties curtailed during the Emergency (1975–77).

2. Landmark Judgments

Kesavananda Bharati Case (1973): Established the Basic Structure Doctrine, limiting Parliament's power
to amend the Constitution.

Minerva Mills Case (1980): Reinforced the Basic Structure Doctrine.

Key Features of the Indian Constitution

1. Borrowed Provisions:

Parliamentary system: From the British.

Fundamental Rights: From the U.S. Constitution.

Directive Principles: From Ireland.

Emergency provisions: From Germany.

2. Unique Features:

Single citizenship.

Blend of rigidity and flexibility.

Federal structure with a unitary bias.

Relevance of the Indian Constitution Today

The Indian Constitution remains a living document, constantly evolving through amendments, judicial
interpretations, and changing political dynamics.

It ensures justice, equality, and liberty while promoting unity and integrity among India’s diverse
population.

By combining principles from ancient Indian traditions, modern global practices, and colonial legislative
frameworks, the Constitution of India reflects a rich tapestry of legal, historical, and cultural influences.