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Constitution of India
The Constitution relates to the governance of the country & this governance is carried out through institutions.
The institutions are recognized & their places are defined under the rules of the Constitution.
Governance involves 3 functions Making of laws. Execution of laws. Interpretation of laws & settlement of disputes.
It is not practically feasible to include everything related to the governance of the country in the Constitution, but those that are included in the Constitution acquire supremacy.
It is not enough just simply to know the Constitution.
India is the only country the Constitution of which bothers to mention civil servants.
Ordinary laws like strict laws can be amended but the constitutional law requires amendment with a large majority.
The institutions are constituted according to & their powers & functions are contained in the Constitution.
Judges Inquiry Act contains the rules to look into the conduct of judges.
There might be problems of interpretation of the Constitution.
It is possible that the language of the Constitution can’t be applied exactly to situations which could not have been anticipated by the Constitution-makers at the time of drafting the Constitution.
The rules laid down by the Constitution are flexible & require interpretation. However, there are certain rules which it is inadvisable to lay down.
Ideas can be inferred by taking into account detailed provisions of the Constitution. It is not necessary that every idea should be written.
2 Certain ideas just form the structure of the Constitution & can be gathered when one reads the Constitution.
JUDICIAL REVIEW
The question that arises is whether the rules of the Constitution can be enforced by the judiciary.
In the US, in the case of Marlbury v Madison, it was held that the State shall agree to be judged by the judiciary. This means that political rulers should agree to submit their laws to judicial examination.
The idea of judicial review is based on the belief that the rules of the Constitution are, by & large, rules of law.
The limitations on the power of judicial review are The judiciary has to judge the validity of a law on pre-existing norms & can’t formulate a norm merely in order to invalidate the particular law whose constitutional validity has been challenged. The judges can decide only matters of law & not matters of policy.
CONSTITUTIONALISM
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Constitutionalism means the defining and restraining of the government’s power.
Limitation on Power1
Denial of Power (Part III of the Constitution)
Direction of Power (Part IV of the Constitution)
Distribution of powers
Accountability
Phrase like ‘Subject to the provisions of this Constitution’ in Article 245 and ‘in accordance with this Constitution’ in Article 53 shows limitation on the power.
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This is done through both internal as well as external limitations.
The internal limitations are those within the mode of governance & are procedural limitations,
The external limitations are those that are outside the governmental hierarchy.
Nowadays, the term constitutionalism is confined only to external limitations.
Note: Julius Stone has also discussed some aspects of Power and mentioned that ‘Law is Power’. He has further mentioned the development of power structure i.e. Personalized power structure, de-personalized power structure and trans-personalized power structure.
BASIC FEATURES OF THE CONSTITUTION
The basic features of the Constitution are 1. Parliamentary form of government. 2. Federal nature of the Constitution. 3. Flexibility of the Constitution. 4. Aspirational character of the Constitution.
RULE OF LAW The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere. 'Rule of law' is an expression to giver reality to something which is not readily expressible. That is why Sir Ivor Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual and has as its object, the harmonizing of the opposing notions of individual liberty and public order. The notion of justice maintains the balance between the two; and justice has a variable content.
Dicey's Formulation of the Rule of Law
4 1. Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the courts. 2. The second meaning grew out of Dicey's unsound dislike of the French Droit Administratif which he regarded "as a misfortune inflicted upon the benighted folk across the Channel". Indeed, so great was his influence on the thought of the day that as recently as in 1935 Lord Hewart, the Lord Chief Justice of England, dismissed the term "administrative law" as "continental jargon". 3. The third meaning is hardly apposite in the context of our written Constitution for, in India, the Constitution is the source of all rights and obligations. We may not therefore rely wholly on Dicey's exposition of the rule of law but ever since the second world war, the rule has come to acquire a positive content in all democratic countries. The International Commission of Jurists, which has a consultative status under the United Nations, held its Congress in Delhi in 1959 where lawyers, judges and law teachers representing fifty-three countries affirmed that the rule of law is a dynamic concept which should be employed to safeguard and advance the political and civil rights of the individual in a free society. One of the committees of that Congress emphasised that no law should subject any individual to discriminatory treatment. These principles must vary from country to country depending upon the provisions of its Constitution and indeed upon whether there exists a written Constitution. As it has been said in a lighter vein, to show the supremacy of the Parliament, the charm of the English Constitution is that "it docs not exist".
As Culp Davis said,
where the law ends, discretion begins and the exercise of discretion may mean beneficence or tyranny, justice or injustice, either reasonableness or arbitrariness. There has been no government or legal system in world history which did not involve both rules and discretion. It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of laws and of men. Jerome Frank has said: This much we can surely say: For Aristotle, from whom Harrington derived the notion of a government of laws and not of men, that notion was not expressive of hostility to what today we call administrative discretion. Nor did it have such a meaning for Harrington". Another definition of rule of law has been given by Friedrich A. Hayek in his books: "Road of Serfdom" and "Constitution of Liberty". It is much the same as that propounded by the
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Franks Committee in England: The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will know where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law"
Note: this is why all the retrospective law is bad.
When judiciary is laying down some principle it must apply it from the next case. Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law. This Court said in Jaisinghani v. Union of India MANU/SC/0361/1967 that the rule of law from one point of view means that decisions should be made by the application of known principles and rules, and, in general, such decisions should be predictable and the citizen should know where he is. This exposition of the rule of law is only the aspiration for an ideal and it is not based on any down-to-earth analysis of practical problems with which a modern Government is confronted. In the world of action, this ideal cannot be worked out and that is the reason why this exposition has been rejected by all practical men. If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then there is no rule of law in any modern State. A judge who passes a sentence has no other guidance except a statute which says that the person may be sentenced to imprisonment for a term which may extend to, say, a period of ten years. He must exercise considerable discretion. The High Courts and the Supreme Court overrule their precedents. What previously announced rules guide them in laying down the new precedents? A court of law decides a case of first impression; no statute governs, no precedent is applicable. It is precisely because a judge cannot find a previously announced rule that he becomes a legislator to a limited extent. All these would show that it is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the decision. Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star
6 up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty.
Note: The judgment of the Supreme Court in Chiranjit Lal Chaudhri v. Union of India that “a single individual may be treated as a class” is the violation of Constitution. Our Constitution exists and must continue to exist. It guarantees equality before law and the equal protection of laws to everyone. The denial of such equality, as modified by the judicially evolved theory of classification, is the very negation of rule of law. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the equal protection clause of the Fourteenth Amendment to the American Federal Constitution Bashshar Nath v, C.T.T., MANU/SC/0064/1958.. In State of Bengal v. Anwar Ali Sarkar MANU/SC/0033/1952., Patanjali Sastri, C.J. observed that the first part of the article which has been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American judges regard as the "basic principle of republicanism" cf. Ward. Flood, 17 Am Rep 405. and that the second part which is a corollary of the first is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution. So, the concept of equality which is basic to rule of law and that which is regarded as the most fundamental postulate of republicanism are both embodied in Article 14. If, according to the majority in Bharati's case (supra), Article 14 does not pertain to basic structure of the Constitution, which is the other principle of equality incorporated in the Constitution which can be a basic structure of the Constitution or an essential feature of democracy or rule of law?
Clauses {4} and (5) of Article 329A were arbitrary and was calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the .definition of 'law* itself. And the Constitutional Law of 1975 has undergone many changes since A. V. Dicey, the great expounder of the rule of law, delivered his lectures as Vinerian Professor of English Law at Oxford, which were published in 1885 under the title) "Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be said with reasonable certainty that the rule of law means that the exercise of powers of government shall be conditioned by law and that subject to the exceptions to the doctrine of equality, no one shall be exposed to the arbitrary will of the Government. ON THE RULE OF LAW: HISTORY, POLITICS, and THEORY: Brian Z. Tamanaha.
7 This is a valuable work that fills the need for a clearly articulated introduction to this now widely praised, but often poorly understood, political ideal. Remarkably comprehensive for such a short work, the contributions of such figures as Plato, Cicero, Locke, Montesquieu, Madison and Hamilton to the development of the concept of the rule of law, as well as the refinements made by recent and current thinkers like Joseph Raz and Ronald Dworkin, are explicated within a well-constructed framework of the historical, economic, and political forces that have shaped the concept. Tamanaha’s own evaluation and conclusions about the rule of law are balanced, yet he does not hesitate to expand our understanding of the value and shortcomings of the rule of law, especially when applied to non-western cultures and to the international arena. Viewing it as a product of western political and legal thought, Tamanaha offers a concise examination first of how the rule of law emerged from Greek and Roman roots and survived as an inchoate concept during the medieval period. He then examines the core set of meanings that became associated with it as a component of liberalism during the Enlightenment, as well as the various critiques that have more recently been applied against it, ranging from nineteenth century conservatives (Dicey, Hayek) to twentieth century American realists and critical legal scholars. From this historical review, the author derives three main themes that inform our understanding of the rule of law. The first (and broadest) theme is government limited by law. This focuses not on individual liberty, but on restraint of government tyranny, and was the dominant version (preceding the idea of individual liberty) until the advent of liberalism, when the focus shifted to [*498] formal legality. It means first that government officials must abide by the currently valid positive law, and second there are restraints on their law-making power (how they can change the law); imposed by natural law, divine law, customary law, or more recently human/civil rights. This restraint in the first sense came in premodern times from affirmation by the monarch that the law was binding (though not always voluntarily), such as the oath upon taking office, the Magna Carta, a common understanding (such as from German customary law), and the routine conduct of officials. Church leaders, merchants, aristocrats, and others usually cited breaches of law to justify their resistance to arbitrary government actions, which usually took political (or theological) form, since there were few legal remedies for violations of law by the sovereign. But it is possible to apply legal sanctions against the sovereign for violations of the positive law; this usually requires an independent judiciary capable of holding the other parts of government accountable on legal grounds, and whose decisions are respected. Restraint of government tyranny in the second sense is more ambitious. In Islam the Shari’a may serve this purpose, but in modern times there are tensions even in the Muslim world that result from modernity and pluralism. Ultimately the success of this theme of the rule of law depends on a pervasive belief in it by the people and by government officials. While the role of written constitutions is considered at various points in the book, here the author might have usefully discussed the concept of constitutionalism and its close relationship to the rule of law.
8 The second theme is formal legality: public, prospective, stable, general laws equally applicable with a fair hearing within a judicial process. This is the dominant theme within liberalism and capitalism, and there is a positive correlation between formal legality and economic development. It emphasizes predictability, deemphasizes the content of the law, is not incompatible with authoritarian regimes, and foregoes requirements of distributive equality and justice in individual cases (though it is not incompatible with these). It may also be inappropriate is some cases, where compromises or political solutions are preferred, or in communitarian societies where social values may clash with aspects of formal legality. Finally, there can be rules that are so numerous and complex that they defeat the purposes of formal legality. The third theme is rule of law, not man. This avoids the unpredictable predilections of individual actors. But since laws are not self-interpreting or applying, individuals cannot be excluded from consideration. The rule of law response has been to identify the judiciary (legal experts) as the special guardians of the law, and reduce the significance of the individual as judge – at its most extreme in formalism, which values the objective, mechanical judge. This theme has been supported by the growth of law and lawyers and their extensive social penetration in liberal societies, and by the separation of powers and subsequent independence of judges, which was made possible by the professionalization of law. To prevent the rule of law in this theme from [*499] becoming rule by judges is important, especially following the decline of legal formalism. It requires careful selection of judges committed to fidelity to the law, deference to proper authority to make the law, diverse social background of judges, and qualities of judicial honesty and integrity, among other factors. On the international level, an infrastructure of global law (public and private international law) has been and continues to be laid through rules, acceptance by states, and the creation of international tribunals, especially in the commercial arena which has been driven by the global economy. But here an analogy to the rule of law within nation-states is difficult. International law is characterized by consent-based tribunals, lack of a legislature and executive agencies, and voluntary rather than compelled acceptance of (and compliance with) various legal regimes, all of which create rule of law difficulties. Self-interest and power, and the overall voluntary nature of international adjudication, counterweigh fidelity to the law. However, this situation is roughly similar to the early (medieval) period of the state-centered rule of law tradition; there is then potential for further development of an international rule of law. Regarding formal legality on the international level, the piecemeal creation of rules and tribunals, which often overlap, along with varying national interpretations and applications of rules, all tend to reduce consistency, certainty, and equality in the application of the law. The creation of international law rules is not always transparent, and compromise and politics, rather than rule application, more often prevails. Underlying support for the rule of law in nation-states has been supportive beliefs that the law is just, made by the people, and/or for the good of the community. This is lacking in the wide variety of states on the international level, and may be seen as designed to
9 support western power and values. To be successful, an international rule of law must be perceived to reflect the interests of the entire international community. Tamanaha concludes his book by asking whether the rule of law is a universal human good. The first cluster of meaning of the rule of law, that government officials operate within a legal framework in the two senses of abiding by the law as written and accepting limits on law-making power, is indeed a universal human good. The state system and modern government is a recent (seven centuries old) invention of the West, and in pluralistic societies is not just an extension of the community. Experience shows that government is capable of abusing power as much as benefiting the communities under it. But the situation is more complicated when parts of the positive law or limits on the law (like bills of rights) are transplanted from western (individualistic) societies to nonwestern (communitarian) ones. Tamanaha believes that a helpful approach would be to start not with identifying zones of individual autonomy to identify limits on government (a liberal approach), but with the idea of preventing government tyranny, and to decide what limits are appropriate consistent with prevailing social-cultural views. The second cluster, formal legality (rule by rules), is a valuable good but not necessarily a universal human good. It can be alienating when set in different cultural contexts, such as those with greater emphasis on communitarian values and the importance of social justice (for example, those within the Islamic tradition). The third cluster – the rule of law, not man – follows whenever the first or second is adopted. Self-restraint to avoid descending into rule by judges is necessary. Finally, Tamanaha notes that all of these clusters are open with regard to content. In his view, justice and the good of the community should be considered in any evaluation of the value of the rule of law. He notes in this regard that “pervasive societal attitudes about fidelity to the rule of law – in each of the three meanings – is the mysterious quality that makes the rule of law work.”
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SEPARATION OF POWERS AND THEORY OF CHECK AND BALANCES The idea that government powers showed be divided among separate and distinct authorities has a long history in western constitutionalism. John Lock observed on the need for separation of powers in as early as 1960. He satisfied to the human refuse to grasp power and danger of such power vesting absolutely in one person or institution.
The notion behind this was “Centralization of power is dangerous.” There must be check on power. In history we find very few “Golden periods. In spite of this period there was no liberty for peoples. First attempt towards this was “Philadelphia Convention”. The doctrine of separation of powers can be traced as far back as the Aristotelian times. In later centuries, John Locke and James Harrington had advocated this principle. The credit for a meaningful and concrete concept of separation of powers, however, goes to the eighteenth century French philosopher Baron de Montesquieu, who wrote in his Spirit of Laws thus: When the legislative and executive powers are united in the same person or in the same Magistrates or body, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive powers. Were it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers. Montesquieu’s writings considerably influenced the views and thoughts of the framers of the Constitution of the United States when they gathered to draft the American Constitution. Thomas Jefferson, one of their founding fathers and the third President of the US, was an ardent proponent of the doctrine of separation of powers in the context of Governmental functioning. About 60 years before the American Constitution was drafted, the British had, introduced in 1688 the Bill of Rights, one of the characteristic features of which was the separation of powers between the King and the Parliament and the King and the common Law courts. The makers of the American Constitution adopted the concept and fitted it into their written Constitution. Separation of powers means –“non involvement of branches that do not possess a special power.
11 Rationale behind doctrine of SOP Prevention of tyranny. Efficiency of administration. 1. Water – tight Model In this model only power is divided. But all branches are free to exercise as more by own willing. 2. Alternate Model : Powers are divided and mode of exercising of this power and limitations on power, also provided in the Constitution as – India, USA There are two views about Doctrine of separation of powers – (In USA)
Formalistic View:
It demands adherence by each branch meaning thereby – as a command of the Constitutional text. Thus this view expresses strict separation of powers.
Functionalism: Commands fidelity to the purposes of distribution of powers. The Constitution’s distribution of powers is violated only if one branch of federal government aggrandizes its power at the expense of another branch. In short functionalist views such SOP as a component of fulfilling the constitutional goals. Doctrine of Checks and Balances: It signifies division and dispersion of a specific power between the branches i.e. constitutional effort to ensure that the system will be able to guard against usurpation of authority by any one branch. Therefore the principle of SOP suggests three autonomous entities, working independently. While doctrine of CAB suggests overlapping functions in which each branch is able to introduce on and thereby to check the power of others. The Constitutional framework is best understood as a scheme that embodies a partial, rather than the complete separation of powers and that supplements the separation by crating devices by which one branch. Purpose To check the exercise To maintain the balance
12 To restore back the excess
Indian Constitutional Setup In the Indian context, the concept of separation of powers and checks and balances is inherent in the constitutional arrangements. In fact, ‘Separation of Powers’ has now been acknowledged as among the ‘basic features’ of our Constitution. All the three organs of the State, the Executive, Legislature and the Judiciary are bound by and subject to the Constitution. None of them has powers beyond the Constitution. Dr. Ambedkar also pointed out during the debates in the Constituent Assembly that a Constitution is based on certain tacit assumptions concerning the fundamentals; for example, no Constitution lays down that the Executive is bound to carry out the laws made by the Legislature. It is assumed that they will perform that duty. Likewise no Constitution lays down that none of the organs, including the Judiciary, must exceed its powers. The Constitution does not contemplate a Super-organ nor confers over-riding authority on any organ. No organ has any authority to superintend over the exercise of powers and functions of another, unless the Constitution strictly so permits, otherwise the Constitutional balance will be greatly disturbed. The basic foundation of our Constitution is the accountability of the State to the people who are the real masters. The accountability of the Executive to the people at large is enforced through their representatives in the House of People. The Legislatures also have the obligation not to exceed the jurisdictional limits provided in our organic law. The Constitution and its preamble are the guiding lights so far as the Judiciary is concerned but there is no scope of enforcing its accountability to the Constitution, except judicial conscience and rectitude. If any organ of the State arrogates to itself any power, having a sanction only in terrorem, which under the Constitutional scheme belongs to any other organ, it will cause a serious imbalance in our Constitutional set-up. Hence three very important questions can be raised in Indian Constitution Perspective. 1. What are the specific powers and Functions vested in the three branches of Government? 2. Identify limitation imposed on such powers and functions? 3. What the limitation that can be imposed on such powers and functions by other two branches i.e. check and balances.
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Provisions relating Executive Powers
to Provisions relating Legislative Powers
Art. 53(1)/ Art 154 (1) Art 123/213. 72/161, 140, 76/165, 263, 260, 352, 356, 360, 365, 124(2), 143, 144, 192, 207. Art 111/200, 292, 293, 316, 310, 331, 333, 339, 340, 341, 342, 344, 350B
Art 245, 246, Art 61, Art -114, 117 Art- 124(A) Art – 360 Art -122/212 265, 266, 267, 302, 304, 307, 309, 312A, 320-A, 320-B, 323, 320, 345, 360, 370, 372, 241, 244-1 VII the Schedule
to Provisions relating Judicial Powers
to
Art 124(1) Art 214(1) Art 32/226 Art- 127, 120, 129, 131, 141 303, Art – 222, 223 321, 327, 371,
Express Limitations:Check on Legislative power: Specific Art – 13(2) – Internal check Art -111 – Assent of the President – Extreme Art – 32, 226 – Judicial Review External check – Assent to money Bill Check on the Executive
Art 324(2), (5) – “Subject” to the law made by the parliament Art 356 – within 30 days put before the parliament otherwise its validity ceases Art 61 – Implement of president Specific limitation ex. – Art - 329 - Art - 122
Art 262(1) & (2) Parliament may be law provide for the adjudication of any dispute or complaint with respect to use, dist In Indian system besides from broad separation, there is a functional overlapping i.e. checks and balances the Supreme Court has the power to declare void the laws passed by
14 the legislative and the action taken by the executive if they violate the provisional of constitution or law passed by the legislative in case of executive actions. Similarly, it is open to a legislative to act the basis of the judgment. The president of India in whom the executive authority of India is vested exercises law, law-making power in the name of ordinance.
A check of executive is that “Council of Minister” is responsible for the house of people. (Art. 75(3) President may be impeached by president. Art 61/56 Judges can also be impeached as parliament, Art-124(4) President power to assent the bill Art. (1)
Check on Judiciary
The appointment and removal of the High Court and Supreme Court judges is by the head of the executive but now in practice this power has been taken over by the Supreme Court. (Supreme Court Advocates on Record Association v. Union of India).
The Judges of superior courts may be removed through impeachment by Parliament on the grounds of incapacity and proved misbehavior.
Article 262 is also a check on the Judiciary.
If we compare our legal system with an American system: in America also these is no separate chapter in the constitution dealing with the separation of powers. Article -1, 2 & 3 describes broad framework of the powers and functions of the government. It is on the basis of this theory of SOP that the Supreme Court of U.S. has not has given power to decide the political question and also not has power to judicial review. But now at the case Backer v. Car and Marburry v. Madison these both power has been usurped by the Court. This is because in the complexity of modern govt., strict structure a classification of the powers of the Govt. is not possible. Besides this the president of U.S. interferes with the exercise of the powers by Congress through the exercise of his veto power. The president also interferes with judiciary by appointing judges. In the same manner congress interferes with the power of president through vote on budget, approval of agreements by the senate and the rectification of treaty. Congress also interferes with the exercise of powers by Courts by passing procedural law creating special courts: In its turn, the judiciary interfaces with the power of judicial review. It is correct to say that the Supreme Court of the U.S. has made more amendments to the American Court then the congress itself.
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After analyzing both constitutional provisions we can see that there are almost same conditions in SOP:
Supreme Court on Separation of Power 1. In Ram Jawaya Kapoor v. State of Punjab This was the first case where Apex Court of India declared that we have adopted the British Westminster Model of government and therefore our Constitution does not contemplate a rigid separation of work. 2. A.K. Roy v. Union of India Validity of National Security, Ordinance, 1980 and certain provisions of N.S.Act 1980 was challenged. Supreme Court declared that our Constitution does not follow the American pattern of Strict of SOP 3. In Re Delhi Laws Act Seven judges bench decided that we accepted the British Model. Hence, there is fusion of legislative powers. 4. In Chandra Mohan’s Case in 1987 Supreme Court declares that though Indian constitution does not provide strict SOP but it provides independent Judiciary. 5. E .T. Sunnup v.C.A.S.S.S Employees Association (2004) SCC 683 It is role of judiciary to act as watch dog and keep check on Executive and Legislature (who gave this power to judiciary?) 6. Nine Judges bench in Supreme Court Advocates on Record Association Case Article 50 of the Constitution confines only to lower Judiciary. 7. P. Kannadasan v. St. of Tamilnadu 5 judges (1966) SCC Doctrine of SOP is not only recognized but incorporated in the constitution. (How can five judges bench overrule the nine judges’ bench decision). Mockery of Doctrine of Separation of Power The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, point to the deviations from the
16 generally understood constitutional scheme of separation of powers. Many perceived the concept of ‘composite floor-test’ introduced by the Supreme Court in the 1998 and 2005 cases, as an avoidable interference with the powers and privileges of the Legislature by the Judiciary. I respectfully reiterate that in the Jharkhand Assembly case the Supreme Court gave an unfortunate non-speaking order which, to my mind, violates Article 212 in several respects. I pointed out then and I would like to repeat here that if the Assembly had ignored or flouted the order, the Supreme Court would have been confronted with a most embarrassing situation in which it would have been unable to secure the enforcement of its order, thus undermining the authority and prestige of the Court. It may be noticed that the Order of the Supreme Court could not actually resolve the problem which was possible only by Executive intervention. For the Presiding Officers of the Legislatures to be directed by the Court of law to discharge their functions in a given manner would create a wholly unworkable and unacceptable situation. How could the Executive authorities like the Chief Secretary of the State Government or Police officials be able to maintain the order, arrange for the presence of the legislators and for their coming inside the House? If this was allowed, they would have been substituting the Presiding Officers in the matter of maintenance of discipline. The Interim Order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the Judiciary and the Legislature. I feel that these were instances of unfortunate and serious encroachment by the Supreme Court on welldemarcated areas of powers of the Legislatures. It, in effect, blurred the contours of areas of supremacy of different constitutional institutions. Articles 122 and 212 of the Constitution explicitly symbolize the supremacy of the Legislatures within their own spheres, and these provisions are equally binding on the Speakers as well as on all Courts.
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Form of the Government EXECUTIVE
At both the Centre & State level, the President & the Governor respectively are vested with executive powers. The President is elected by the Electoral College, consisting of o Elected Members of Parliament (MPs). o Elected Members of Legislative Assemblies (MLAs). Every vote doesn’t have the same value. o There is equal weightage of between the Centre & the State. o The weightage of votes is proportional to the population of the constituency. If the manner of election of the President is to be changed, it requires o 2/3 majority in both houses of Parliament. o Ratification by the State Legislatures. The requirement for amending the Constitution is less than the requirement for impeaching the President. The President has to act in consensus with the recommendations of certain committees. The President is given the power to preserve, protect & defend the country. The difference between a Parliamentary Executive & a Presidential Executive is as follows. o Parliamentary Executive is dependent on the legislature. o Presidential Executive is not dependent on the legislature. Both the President & the Governor exercise their directory powers thorugh subordinate officers which include ministers. Everything is not necessarily done by the President & the Governor but merely in their name. There has to be a Council of Ministers (COM) & both the President & the Governor don’t have the option of deciding whether the want to have one or not. There was a debate on whether the President should act in accordance with the advice of the COM. o Those in favour were The Supreme Court. Jawaharlal Nehru. o Those who opposed it were
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Dr. Rajendra Prasad K. N. Munshi Justice P. B. Mukherjee of Calcutta High Court Chief Justice of India K. Subba Rao o Finally, it was decided that the President has to act in accordance with the advice of the COM. (63rd Amendment, 1976) However, the Governor has no such restriction & can exercise his discretion. There was a debate over whether the village should be the unit of governance. o Those in favour were Gandhi o Those opposed to it were Ambedkar o Finally, the village was not adopted as the unit of governance but the individual was. There was a debate over whether a Parliamentary system should be adopted or a Presidential system. o In a Presidential system, there is concentration of power in the hands of one individual. o In the Parliamentary system, nothing proposed by the COM becomes legal until the President agrees. There is a distinction between the formal executive (President) & the actual executive (COM). o Finally, a Parliamentary system was adopted. The question that arose was whether the British system could be transported to India. o It was necessary to create a formal head equivalent to the Queen of England. o The Constituent Assembly wanted to do this in the President. o The controversy is not about the intention of the Constituent Assembly but about whether their intention was reflected adequately in the language of the Constitution. o Therefore, the President is vested with quite a lot of strength & does not have his functions dictated by the Prime Minister (PM). o However, the President can’t challenge the PM as that would be too much power. This is why the Electoral College members are not elected simply for election of the President but have other functions. This provides political protection to the President. However, since the President can’t project himself politically, he doesn’t have so much power. The dissenters to this view raise the following arguments. o Since the Queen is not elected but the President is, the President can’t be equated with the Queen.
19 o The President is less powerful because he has a limited term of office, unlike the Queen. o The President has the command of the army. o The president can be impeached. POWERS OF THE PRESIDENT
Presidential powers are of 2 types. o Power relating to the governance of the country, which is similar to that of the Queen, for the performance of which he can’t be impeached. Right to be consulted. Right to encourage. Right to warn. o Power relating to the governing institutions for the performance of which he can be impeached. Right to appoint PM. Right to dissolve Parliament. Right to dismiss government. The President is the equivalent of a backseat passenger in a car - he can’t drive himself but he can change the driver. Once the President signs a Bill, it doesn’t require a counter-signature (it is required in Britain). o Earlier the President needed to be personally satisfied. o However, this has been overruled by Samsher Singh v State of Punjab & the President need not be personally satisfied but those acting in his name need to be. The President is to be advised by agencies other than the COM. o However, there are exceptions like the one conferred under Article 217 (3) of the Constitution. o In the case of Samsher Singh v State of Punjab, K. Iyer said that it is correct if decisions regarding Article 217 (3) of the Constitution are passed through the COM before reaching the President. o The government is responsible even if the decision is made keeping it aloof. Since India has a Parliamentary form of government, power is vested in the hands of the COM. However, the President has 3 discretionary powers. o Right to appoint PM. o Right to dissolve Parliament. o Right to dismiss ministry. The Indian President is more powerful than the Queen because the Indian Parliament is constrained by the Constitution whereas in Britain, the Parliament is supreme.
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The President should not only be non-partisan, he should also appear to be nonpartisan. The President must be alert to ensure that his office or name is not abused to violate the Constitution. Since the powers of the Parliament are constrained by the Constitution, it can’t advise the President to act illegally or unconstitutionally. The President can’t veto a legislation but can raise constitutional objections. o For example, the objections raised by Dr. Rajendra Prasad to the Hindu Code Bill. o In such a case, the Supreme Court resolves the issue. o However, the Governor can’t approach the High Court & has to refer such a dispute to the President. The office of the President should not be used for circumventing the Constitution. o For example, ordinances promulgated for temporary effect & with no intention of being passed when the Parliament comes into session. (Wadhwa v State of Bihar) There are certain powers of the President upon which the SC is encroaching. o For example, whether tainted ministers should be allowed to hold their portfolios. This can be more effectively decided by the President.
DISCRETIONARY POWERS OF THE PRESIDENT:
Power of appointment of PM o The President can exercise discretion in this regard. o Some are of the opinion that the outgoing PM should advise the President on who should be appointed his successor (because the Queen can’t be responsible for her actions). However, this is only plausible if the successor is from the same party as the outgoing PM. Furthermore, since the President can be impeached (unlike the Queen), it is only fair that he be allowed to exercise his discretion. In Britain, since the PM is appointed by the Queen & not the House of Commons (HOC), therefore he need not resign if despite losing the majority in the HOC, his party is the single largest party. This is not the case in India. Also, in Britain, the PM can recommend the dissolution of the HOC without resigning, & only needs to resign if his party loses the subsequent polls (if his party wins he need not be reappointed). The PM has to resign if the Lok Sabha (LS) is dissolved (he continues only as caretaker PM) & if his party wins the subsequent polls, he has to be reappointed.
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Thus, in India, even though the PM is appointed by the President, his appointment is limited to the duration of the LS. Power to prematurely dissolve the LS o This power consists of 3 issues. Whether the power to advise premature dissolution is PM’s or the COM’s. In Britain, there is a convention that the power is the PM’s alone even though he may consult his colleagues. In India, there is no such convention & no PM has ever exercised such power alone. Therefore, in India, the power lies with the COM. Whether the President has to accept the advice of the COM. Such advice may be tendered in 2 situations. o When the government loses its majority in LS. There are 2 competing considerations. If the government has been disowned by the LS, then the COM can say that the LS doesn’t represent the public opinion (prevalent in Britain). If an alternative government is possible, then the country should not be forced to go to polls. The first argument can only be made when a party was elected on a particular policy & has subsequently lost majority due to breakup of a pre-poll alliance as it gives them a moral right. However, if this is not so, then the second argument carries more weight. o When the government still has majority in the LS but is being opportunistic. The President is bound to accept the advice because if he doesn’t, then the COM will resign & no alternative COM will be able to have majority in LS. For example, the NDA government in 2004. Whether the President can dissolve the LS without any advice. It is a purely theoretical distinction whether it is the President’s own idea or the COM’s because the President has to always have a COM. The President can only try & convince the COM to advise dissolution.
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However, if the president can find an alternative COM, he can do so. There have been two occasions in Britain when this has happened. o The first occasion arose when Asquith was the PM & there was a very radical budget change, which the House of Lords (HOL) was refusing to pass. King George V convinced him to dissolve the HOC. Asquith was re-elected & the budget was passed. o The second occasion arose when the same government wanted to pass the First Parliament Act to curb the powers of the HOL. Again King George convinced Asquith to dissolve the HOC. Asquith was re-elected yet again & the First Parliament Act was passed. However, in India, such occasion has never arisen at the Centre but only at the State level. Power to dismiss the COM o There are 2 constitutional provisions. All ministers hold their offices at the pleasure of the President. Actually it is at the pleasure of the PM. However, if the President dismisses the PM, then the entire COM is considered dismissed. When the ministry loses majority, it is acceptable for the President to dismiss the COM. However, when the COM still has majority, it is only in extraordinary circumstances that the COM can be dismissed. o Such an occasion arose in Britain when Asquith introduced the Irish Home Rule Bill. Several were of the opinion that if the COM did not agree to a dissolution, the King should dismiss the COM. However, World War I started & the matter was deferred. When the government is guilty of subverting the Constitution, the President may dismiss the COM on his initiative, but he must have an alternative COM. Ministers may not be a member of either LS or RS for a period of 6 months.
POWERS OF THE GOVERNOR
The powers & functions of the Governor are quite similar to those of the President. However, there are certain differences.
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Since the President is elected by an Electoral College which gives equal weightage to both State & Centre, he is as much the executive head of the State as of the Centre. The Governor has a dual role. o He is the executive head of the State. o He is the link between the State & the Centre. The Governor may be required to be the agent of the Centre but definitely not the agent of the political party in power at the Centre against the political party in power in the State. There are some express provisions in the Constitution that give the Governor discretionary powers. o For example, Article 163. There are also some implied provisions. o In case of any adverse report against the State government. For example, reports recommending the imposition of President’s rule in the State. o Reservation of certain Bills for the consideration of the President (though sometimes, this is in the interest of the State government because that is the only way that a State law which is in direct conflict with a Central law can be allowed to exist). However, the Governor is not really that independent because he can be removed by the Central government.
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Centre-State Relationship
R. C. Poudyal v Union of India o Facts After the incorporation of the State of Sikkim into the Union of India, the Lepchas & Bhutias of Sikkim were given more representation in the Legislative Assembly than should have been according to the demography of the State. Furthermore, 1 seat was reserved for a member of the Buddhist Sangha, which was to be filled by the decision of all the Buddhist monasteries in the State. The amendment was challenged by the petitioners. o It was unanimously held that the basic feature doctrine was applicable in this case. It was held (by a majority judgment of 4-1) that the first part of the amendment providing for disproportionate representation of Lepchas & Bhutias was valid. It was held (by a majority judgment of 3-2) that the second part of the amendment providing for separate electorate on religious grounds for the seat reserved for a member of the Buddhist Sangha was valid. Federalism is part of the basic structure of the Constitution. State of West Bengal v Union of India o Facts A law was passed by Parliament, on a subject in the concurrent list, by which all the coal mines in West Bengal, both privately owned
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as well as those owned by the State government, were acquired by the Central government. The law was challenged by the State government. o It was held (by a majority judgment of 4-1) that the law was invalid. State of Karnataka v Union of India o Facts There was a Congress government in the State. The Janata government at the Centre appointed the Grover Commission to inquire into allegations of corruption by the State ministers as well as the CM. The appointment of the commission was challenged by the State government. o It was held (by a majority judgment of 6-1) that the appointment of the commission was valid as it fell under the residuary powers of the Parliament. Rajasthan Automobile Transport Co. v State of Rajasthan o Facts The issue was regarding the interpretation of Article 304. Article 304 expressly states that any law passed by a State which has the effect of restricting the flow of commerce to other States should be reasonable & should have the President’s assent. o It was held that the interpretation which does not cripple the commerce of the State should be adopted.
FEDERALISM
Concept of Federalism o The word ‘federal’ is derived from the Latin word foedus meaning both ‘league’ & ‘covenant’. o Since the first federal Constitution was that of the US, futures Constitutions were judged in comparison with it to ascertain whether they are federal or not. o However, since every Constitution has essential as well as subsidiary features, even if a Constitution differs from the US Constitution in subsidiary features, it can still be considered to be federal in nature if its nature is essentially similar to that of the US Constitution. o There are 2 conflicting notions about the idea of federalism. K. C. Wheare provided a strict meaning of the idea of federalism. However, according to this strict notion, he was unable to classify even 4 Constitutions as federal. He therefore drew a distinction between a federal Constitution & a federal government. Birch & Elzar provided a more broad meaning of the idea of federalism.
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They emphasized that federalism did not imply a stress on autonomy but on mutual cooperation. Birch coined the term ‘cooperative federalism. Elzar said that federalism means a relationship of cooperation & partnership between the Centre & the State. In India, there is a 3-tier system of government consisting of the Central government, State government & Panchayats. o Therefore, there are 2 sets of relationships. That between the Panchayats & the State government. This relationship cannot be classified as a federal one because it is one that is unilaterally regulated by the State government through the passage of laws. That between the State government & the Central government. This relationship can be classified as a federal one because it can only be regulated by a Constitutional amendment which requires ratification by at least half the States. o Therefore, a federal government is different from a decentralized one. Decentralization was first brought about by the Government of India Act, 1919. Federalism was only brought about by the Government of India Act, 1935. Essential Features of Federalism o Dual Polity There should be 2 layers of government & both should have complete administrative paraphernalia. o Distribution of Powers This should not necessarily be equitable. In fact, it is observed that the Centre is always dominant. o The Distribution of Powers should be authentic It should be written in the Constitution. It should be written rigidly, i.e. it should be difficult to amend the Constitution. The Constitution should be supreme. Judicial review should be present. There should be a Federal Court for resolution of disputes. o Equality among States. In the US, all States have the same powers & States that are newly admitted must necessarily have the same powers. In India, there is a variety in Centre-State relations. When is a Federal System Necessary? o It is necessary when there is a federal society, meaning It is a plural society, not based on ideology, but on stable diversity, such as ethnicity, religion, geography, etc. The pluralism is, by & large, territorially entrenched.
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In India, pre-independence Partition was done on the basis of religion. However, post-independence organization of States was done on the basis of language. Advantages & Disadvantages of Federalism o Advantages It brings about some kind of unity. The smaller the level of government, the closer it is to the people, i.e. the people have more opportunities to participate in the political process. It leaves room for experimentation with policies on a smaller scale, hence minimizing losses. It assists the growth & enrichment of different cultures. o Disadvantages (Dicey) Weak government. Rigid government (Difficult to change the distribution of powers). Legalistic (Intervention of Federal Court in case of disputes). Federal Nature of the Indian Constitution o All the features of a federal Constitution are present on paper. o However, it has certain distinguishing features of its own. It is a ‘constructed federation’, i.e. it is not a bringing together of previously independent entities because the States were created by the Centre. The States, having been used to a Central government, are unaware of the limits of their power, leading to inter-State disputes (for example, water disputes) as well as intra-State disputes (Telengana, Vidarbha, etc.) It is still an evolving federation. The representatives from a State generally vote on the basis of their political affiliations rather than on the basis of the State to which they belong. o It is not the first Constitution based on cooperative federalism. However, the others are all so by practice whereas, in India, it is embodied in the text of the Constitution. o The Centre’s administrative & judicial powers depend on the State machinery for enforcement. o It tries to do away with the disadvantages of a federal system. It overcomes the problem of weak government through provisions for declaration of both general as well as financial emergencies. Most important economic powers are in the hands of the Centre. It has learnt from the experiences of the US.
28 It overcomes the problem of rigid government through provisions that allow for redistribution of powers (Article 252) without the need for constitutional amendment. Courts do not have any interpretive powers in this regard. Parliament may legislate on any subject in the State list in order to implement any international treaty. It overcomes the problem of legalism through allowing for the settling of disputes between the States & the Centre through nonjudicial means. The Constitution leaves the financial distribution to the Finance Commission, which is a non-judicial entity It allows for flexibility as the Centre may allow a State law to operate despite it being contrary to a Central law. Centre has enough say in the State machinery through IAS & IPS officers. Centre can supercede the State government if it fails to comply with its directions. Centre has the responsibility of bringing the States into existence (Article 3A). All resources belong to the Centre. o Gains form British rule. A unified common Indian legal system & law.
INTRODUCTION
Article 1 defines India as a Union of States. Parliament may, by law, admit or establish new States (Article 2). o Admit means to allow territory that is not part of India to become a State after joining the Union. o Establish means to use existing territory to form a new State. o Parliament may have variety in Centre-State relations. o In the US, the Courts have taken the view that if a new State is admitted on special terms & conditions, they will not be recognized because all States must have the same terms & conditions. o However, the Courts in Australia & Canada have recognized special terms & conditions. Parliament may form new States & alter the areas, boundaries or names of any existing State (Article 3) o The recommendation of the affected State(s) is not necessary. o In Australia, a referendum is required. Babulal v State of Bombay o Facts
29 During the reorganization of States, there was talk of splitting the Bombay Presidency into the States of Gujarat & Maharastra & keeping Bombay as a Union Territory. A Bill to this effect was sent by the Parliament to the State Legislature, which gave its recommendation. Later, the Bill was modified & a bi-lingual State was created with Bombay as its capital. The Act was challenged on the grounds that the Bill sent to the State legislature was not the same as had been passed. o It was held that the Constitution does not require that a Bill be referred for a second time to the State legislature if it is modified because the State’s consent for such a Bill is not necessary in the first place. Laws enacted under Article 2 & Article 3 will be treated as constitutional amendments but shall not come under Article 368 (Article 4).
TERRITORY
Parliament may make laws for any part of India & the State legislature may make laws for any part of that State (Article 248). o Law made by Parliament shall not be deemed to be invalid on the ground that it would have extra-territorial operations. o However, the State legislatures do not have the power to pass laws that are extra-territorial & the SC has followed the doctrine of territorial nexus. The law may be operating prima facie outside the territory of the State but if there is a nexus between the State & the person, event or property involved, it is not extra-territorial.
DOCTRINE OF TERRITORIAL NEXUS
Governor General v Raleigh Investment (1945) o Facts The Income Tax Act was passed by the Central Legislature of India. Under the Act, the respondents were subject to tax. The respondents were an English company based in London & held shares in 9 other companies also based in London. Those 9 companies did business in India, from the profits of which they paid dividends to the respondents. Income tax was levied on these dividends on the basis of territorial nexus. o It was held that the tax was permissible & the law was not extra-territorial. Wallace Brothers v Commissioner of Income Tax (1948) o Facts
30 The appellant firm was an English firm which had a partnership with a company which operated in India. Income tax was imposed on them not only on the income from India but on their whole income. o It was held by the Privy Council that the law was valid because there was a territorial nexus. o The Privy Council also justified the income tax on the whole income saying that the bulk of the income was from India. o Comments This left the scope open for double taxation because England had the right to impose its own income tax. Later. Indian Courts have laid down that the law must restrict itself to the connection & must be pertinent to the connection. State of Bombay v United Motors o Facts The State of Bombay imposed sales tax on firms that were neither based in Bombay nor had dealings in Bombay, but were sending goods into Bombay. The respondents challenged the law. o It was held that there was enough territorial nexus to uphold the law. o Comments This decision has been overruled by the Central Sales Tax Act & now only the state where the goods are manufactured is entitled to impose tax. Tata Iron & Steel Co. v State of Bihar (1958) o Facts The appellants were located in Bihar & goods were manufactured there. The Head Office & Sales Office of the appellants was in Calcutta. Bihar passed a law imposing tax. o It was held that the law was valid. State of Bombay v RMDC o Facts RMDC office was in Bangalore. They published a magazine. Large numbers of the magazine were sold in Bombay. Bombay taxed the income derived from the sales in the state. o It was held that the tax was legitimate. Khyerbari Tea Co. v State of Assam (1963) o Facts Tea packets originated in West Bengal & the destination was also in West Bengal. However, during transit, it had to pass through a small territory of Assam.
31 Assam imposed a tax for transit at a flat rate, irrespective of the distance. o It was held that the tax was legitimate. State of Bihar v Smt. Charu Shilla Dassi o Facts There was a trust registered in the state. But part of the trust was located outside the state. Bihar had a law that regulated the running of trusts. It was contended by the respondent that this law shouldn’t apply & that the law of the state in which the property was should apply. o It was held that since the law sought to regulate the conduct of the trust, the Bihar law was applicable. o However, the SC also said that in case of conflict of laws regulating property, the law of the other state would apply.
SUBJECT MATTER
This covered under Article 246. There are 2 issues. o Whether the Parliament has the jurisdiction to pass a law or not. o Whether, in case of overlap of entries, an entry should be in List I, II or III of Schedule VII.
RULE OF COLOURABLE LEGISLATION
It basically says that what a legislature cannot do directly, it cannot do indirectly as well. This doesn’t necessarily mean that the motive of the legislature is bad. It is a question of power & not of motive. Gajpati Narayan Dev v State of Orissa o Facts Orissa was going to pass the Zamindari Abolition Act under which it was to pay compensation. There was already a law on agricultural income tax, which was amended to increase the tax. The Act was challenged on the allegation that the motive was to reduce the compensation as the income tax would be adjusted against the compensation. o It was held that since Orissa had the power to amend the Agricultural Income Tax, the Zamindari Abolition Act was valid because the motive was irrelevant. (B. K. Mukherjee, J.) Kameshwar v State of Bihar o Facts
32 One of the clauses of the Bihar Zamindari Abolition Act was that if there are any arrears by tenants to landlords, then the arrears are vested in the government & the landlord receives half the arrears from the government. This was challenged by the petitioners. o It was held that the law was invalid because this was not a case of inadequate compensation but of ‘colourable exercise of power’. Mukul Nair v State of Kerala o Facts The Kerala government imposed tax on land at a flat rate, irrespective of the fertility of the land. The petitioner owned forest land but he could not fell more than a certain number of trees determined by the DM of the district. Therefore, he was paying a lot more tax than he was earning. o It was held that the law was a colourable legislation as it sought to drive the petitioner to bankruptcy & thereby allow the government to take possession of the land.
RULE OF PITH & SUBSTANCE
The rule does not deny any encroachment but merely decides whether the encroachment is inconsequential or not. The rule presupposes that the policies of the State & the Centre are not at variance with each other. Prafulla Kumar Mukherjee v Bank of Commerce (AIR 1947 PC 60) o Facts State passed a law whereby the debt liability of agriculturists had been reduced. Agriculture was a State subject, as was money lending. However, the law also affected promissory notes, which was a Union subject. The law was challenged on this ground. o It was held that the law was valid because the encroachment on the subject of promissory notes was only incidental. A. S. Krishna v State of Madras o Facts Criminal law & criminal procedure is an entry in the Concurrent List. State passed a law under Entry 8 of the State List that imposed criminal liability for the violation of the provisions of the law. The law also laid down special rules of trial & investigation that were different from the Criminal Procedure Code & detrimental to the accused.
33 The law had not been reserved for the consideration of the President. o It was held, applying the rule of pith & substance, that the law was valid because it was a State law of the State List in conflict with a Central law in the Concurrent List incidentally. o The Court also said that Article 254 applies only when there is a conflict of laws between the Centre & the State in the Concurrent List. Balsara v State of Bombay o Facts The issue involved was that the prohibition law of the state also affected imported liquor & import-export was a Union subject. o It was held, applying the rule of pith & substance, that the law was valid.
INTERPRETATION OF LISTS
Powers are to be interpreted broadly. o Ancillary powers should be tagged along with Entries. Interpretation should also be progressive. R. S. Joshi v Ajit Mills (1977) & Mafatlal Industries v Union of India o Facts Article 265 says that no tax may be collected except with the authority of law. However, if a tax is wrongly imposed, the government said that it could claim the tax from the dealers because the dealers should not be allowed to retain undue benefits. This was challenged saying that it was an instance of colourable legislation. o It was held that, due to lack of a better alternative, this was valid.
PRINCIPLE OF HARMONIOUS CONSTRUCTION
As far as possible, legitimate space should be given for both Entries to have effective scope of functioning. A specific Entry takes precedence over a general Entry. Thika Ramji v State of U.P. o Facts Sugar industry is a State subject under Entry 24 of the State List. Centre passed a law regulating the sugar industry under Entry 52 of the Union List. The question raised was whether the State had any remaining power to legislate on the sugar industry. o It was held that the sugar industry consisted of 3 stages – pre-manufacture (raw materials), manufacture & post-manufacture (marketing). Of these, only manufacture was within the scope of Entry 52 of the Union List &
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the State still had the power to legislate on the pre-manufacture & postmanufacture stages. Calcutta Gas Co. v State of West Bengal o It was held that even though when a law is passed by the Centre under Entry 52 of the Union List, the State becomes devoid of power, the specific Entry 25 of the State List prevails over the general Entry 24 of the State List.
REPUGNANCY
Clause 2 of Article 254 is an exception to Clause 1 of the same Article & is limited to cases relating to conflicting laws on the same matter in the Concurrent List. There is a difference between competence & repugnancy. o Competency deals with whether a law is within the power of a legislature or not. o Repugnancy deals with whether a law passed by an inferior legislature is in conflict with a law passed by a superior legislature. Therefore, repugnancy can only arise when there are conflicting laws, i.e. on matters in the Concurrent List. However, this should not be taken to mean that a State law on a State subject can exist even though it is in conflict with a Central law on a Central subject on the pretext that it falls outside the scope of Article 254. Repugnancy can be of 2 kinds. o When both the laws cannot coexist, i.e. literal incompatibility as in the case of A. S. Krishna v State of Madras. o When both the laws can be complied with literally but not practically as in the case of Hoechst Pharmaceuticals v State of Bihar. Hoechst Pharmaceuticals v State of Bihar o Facts The Parliament passed the Essential Commodities Act under Entry 33 of the Concurrent List. Under the Act, they issued an order fixing the prices but allowing for local taxes. The State passed a law imposing Sales Tax under Entry 54 of the State List. The law imposed a surcharge of 10% on dealers having a turnover in excess of 5 lakhs that could not be passed on to the consumers. o It was held that the State law was valid because it had received the President’s assent. Vijaykumar Sharma v State of Karnataka o Facts The President allowed a State law to operate despite being in conflict with a Central law.
35 Later, a new law was passed by the Parliament that was again in conflict with the State law. The petitioners asked that the State law be declared inoperable. o It was held (1 dissenting) that there was no conflict of laws. o The Court also said that, for repugnancy, the 2 laws must be on the same matter in the Concurrent List.
DOCTRINE OF OCCUPIED FIELDS
If the Centre has stated its intention to legislate on a field, the State loses its power to legislate on the same field. This doctrine cannot be applied to the Concurrent List in India. However, it can be applied when there has been so much legislation in a field that there is no room for any other law. The mere possibility of a conflict is not enough; the conflict must already exist. (Thika Ramji v State of U.P.) Repugnancy cannot have retrospective effect. Deep Chand v State of U.P. o Facts The State enacted a law by which it nationalized bus routes. The President’s assent was obtained because it was in conflict with the Central law. The Parliament then amended the Central law to overrule such laws by other States. o It was held that the State law was now invalid because it was inconsistent with the Central law. Zaverbhai v State of Bombay
EFFECT OF REPUGNANCY
The law is null & void. (Karunanidhi case) However, this creates problems in situations where President’s assent is given to a conflicting State law because it implies that the Central law becomes null & void.
CONFLICT BETWEEN ENTRY 25 OF THE CONCURRENT LIST & ENTRY 66 OF THE UNION LIST
Osmania University Teachers’ Association v State of A.P. o Facts The State sought to create a body to function as a subsidiary of the UGC at the State level. This was challenged by the petitioners. o It was held that the function of coordination of institutions of higher education was the exclusive domain of the Centre under Entry 66 of the
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Union List & excluded from the domain of the State under Entry 25 of the Concurrent List. State of Tamil Nadu v Adhiyaman Educational & Research Institute (1995) o Facts Self-financing colleges were being set up in Tamil Nadu. They were to be affiliated to the universities of Tamil Nadu. Colleges were subject to the conditions laid down by AICTE. The State government sought to impose additional conditions. This was challenged by the petitioners. o It was held that the State government could not impose any additional conditions because this was the exclusive domain of the Centre under Entry 66 of the Union List. Gujarat University v Krishna (1963) o Facts The State made it compulsory for all institutions to adopt either Hindi or Gujarati as the medium of instruction. This was challenged by the petitioners. o It was held that such a move by the State government lowered the standards of education & was therefore in the exclusive domain of the Centre under Entry 66 of the Union List. Chitralekha v State of Mysore (Late 1960s) o Facts State government gave some weightage to extra-curricular activities for admission purposes. This was challenged on the ground that it lowered the standards of education. o It was held that this move by the State government did not amount to the lowering of standards & was therefore valid. State of M.P. v Nivedita Jain (1980s or 1990s) (& Ajay Kumar Singh v State of Bihar) o Facts The minimum marks required for admission of reserved category students were lowered to 0 because the seats could not be filled. This was challenged by the petitioner. o It was held that what matters is not admission standards but even standards & therefore this was within the domain of the State under Entry 25 of the Concurrent List. Dr. Preeti Srivastava v State of M.P. o Facts The minimum marks for admission at the PG level was 45 for the general students & 20 for the reserved students. The rule at the MBBS level was that there would not be a variation of more than 5% between the 2 categories of students. However, there was no such rule for the PG level.
37 The petitioner challenged the variation at the PG level saying that the same standards as the MBBS level should apply under Entry 66 of the Union List. o It was held that the variation was not correct as it amounted to a lowering of standards which was in the exclusive domain of the Centre under Entry 66 of the Union List. (Sujata Majumdar, J.) Dr. Ambesh v Principal, Meerut Medical College o Facts There was prescription of minimum requirement of 50% by Indian Medical Council (IMC). The State government raised it to 55%. This was challenged by the petitioner. o It was held that the IMC only prescribed the minimum requirement & the State could raise the requirement under Entry 25 of the Concurrent List.
CONFLICT BETWEEN ENTRY 54 OF THE UNION LIST & ENTRY 23 OF THE STATE LIST
Hingir Rampur Coal Company v State of Orissa (1960s). o Facts In 1952, the Orissa government passed a law under Entry 23 of the State List imposing a fee at the rate of 5% on minerals for welfare of labour, etc. This was challenged because, in 1948, this particular power had been appropriated by the Centre under Entry 54 of the Union List. o It was held that the State law was valid because the power had been appropriated before the Constitution came into force. o However, the Court said that when the Centre appropriates a power in this manner after the Constitution has come into force then such law by the State would not be valid. o The Court also said that it is not necessary for the Centre to actually legislate; mere statement of intention to legislate is enough to appropriate the power. (Gajendragadkar, J.) State of Orissa v Tulloch & Co. o Facts The same law was challenged on the basis of a declaration similar to that of 1948 made by the Centre in 1957. o It was held that the State law was not valid because Entry 23 of the State List was subject to Entry 54 of the Union List.
CONFLICT BETWEEN ENTRY 52 OF THE UNION LIST & ENTRY 24 OF THE STATE LIST
Tika Ramji v State of U.P. o Facts
38 Sugar industry is a State subject under Entry 24 of the State List. Centre passed a law regulating the sugar industry under Entry 52 of the Union List. The question raised was whether the State had any remaining power to legislate on the sugar industry. o It was held that the sugar industry consisted of 3 stages – pre-manufacture (raw materials), manufacture & post-manufacture (marketing). Of these, only manufacture was within the scope of Entry 52 of the Union List & the State still had the power to legislate on the pre-manufacture & postmanufacture stages. o Comments Despite this, the marketing of sugar can still be legislated upon by the Centre under Entry 33 of the Concurrent List. Khaitan Sugar Mills v State of U.P. Harakchand v Union of India o Facts The issue was whether gold ornaments were an industry. It was argued on behalf of the petitioners that gold ornaments could not be considered an industry under Entry 52 & Entry 7 of the Union List because it involved works of art. o It was held that it was an industry.
RESIDUARY POWERS OF LEGISLATION
All residuary powers except taxing powers should be in the Concurrent List. (Sarkaria Commission) R. K. Bhargava v Union of India (1966) o Facts Under the Finance Act, the Centre imposed a law requiring people to deposit a certain amount in the Annuity Deposit Scheme. This was challenged by the petitioners. o It was held that this valid because it fell under the exercise of residuary powers of the Centre. o The concurrent judgment said that the law was valid because it was a mere variation of income tax, which was a Union subject. (Hidayatullah, J.) Attorney General v Amritlal Parjivan Das o Facts A law against black marketers & stock exchange racketeers was passed by the Centre. This was challenged by the respondents. o It was held that the Centre had the power to legislate about preventive detention on any subject under its residuary powers. Union of India v H. S. Dhillon o Facts
39 Agricultural land was included in wealth tax. This was challenged on the ground that it violated Entry 86 of the Union List. The Punjab & Haryana HC held that the law was invalid. The Centre appealed against this decision. It was held, by a judgment of 4-3, that the law was valid. The majority judgment said that in every governing system, the governing body must have the power to tax, either at the Centre or at the State, & since this was not so in this case, the Centre could pass a law under its residuary powers, i.e. the wealth tax fell partly under Entry 86 of the Union List & partly under the residuary powers of the Centre. (Sikri, J.) The concurring judgment said that the meaning of wealth tax has been misinterpreted & that, in calculating capital assets, liabilities on the assets needs to be subtracted. Since this is not covered under Entry 86 of the Union List, therefore it is totally under the residuary powers of the Centre. (Mittal, J.) Comments The reason for such a gap in the Constitution is because the Constituent Assembly envisaged drastic land reforms to take place after which it would be difficult for anyone to own so much land so as to be subject to wealth tax. (Seervai)
o o
o
o
LEGISLATION ON MATTERS IN THE STATE LIST BY THE CENTRE
Article 252. Article 253. RMDC v State of Bombay o Facts Bombay passed a law regulating prize competitions under Entry 34 of the State List. The Bombay HC held that this law did not apply to firms from Bombay operating in other states. Bombay, along with a few other states, requested the Centre to pass a common law on this subject. The Centre did so & Mysore later adopted it. Mysore then sought to impose a tax on gambling under Entry 62 of the State List. This was challenged on the ground that gambling was a prize competition under the power of the Centre & the State was not competent to legislate on it. o It was held that the State law was valid because it was passed under Entry 62 of the State List, which had not been surrendered to the Centre, & not Entry 34 of the State List, which had been surrendered to the Centre. Krishna Bhimrao Deshpande v Land Tribunal, Dharwar
40 o It was held that when a power in the State List is surrendered, it doesn’t mean that all aspects of the relevant entry are surrendered; only the relevant parts are surrendered. CENTRE’S CONTROL OVER STATE’S LEGISLATIVE POWER
Centre can control the exercise of the State’s legislative power through the Governor. The Governor can reserve any State Bill for the consideration of the President. o If the State does not agree to the Governor’s recommendations, the Governor is still bound to give his assent. o However, if the State does not agree to the President’s recommendations, the President is not bound to give his assent. Articles 31A, 31C, 304B & 254 (2) make it in the State’s interest to reserve a State Bill for the consideration of the President. Article 288 makes it mandatory for a State Bill to be reserved for the consideration of the President when it seeks to impose a tax on the Central government or any of its agencies for water & electricity.
ADMINISTRATIVE RELATIONS
Article 73 defines the executive power of the Union. Article 162 defines the executive power of the State. Both the Parliament as well as the President can delegate their functions to the State. (Article 258) o In case of Parliament, the States’ consent is not required. o In case of the President, the States’ consent is required. IAS & IPS officers, though belonging to a State cadre, are appointed by the President. States are bound to ensure compliance of Central laws. (Article 256) Centre can also issue directions to the States on certain matters. (Article 257)
WHETHER ARTICLES 256 & 257 HAVE TO BE RESOLVED POLITICALLY OR CAN BE ENFORCED THROUGH THE COURTS:
ADM, Jabalpur v Shiv Kant Shukla o It was stated that Articles 256 & 257 relate to disputes between the Centre & the States at the political level & do not require the intervention of the Courts. (Y. V. Chandrachud in his obiter dictum) Jay Engineering Co. v State of West Bengal (Calcutta HC) o It was held that it is the responsibility of the State to protect citizens through the police despite instructions from the Labour Minister to seek the permission of a magistrate before getting involved in any incidents involving labour.
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Deputy Accountant General v State of Kerala (Kerala HC) o It was held that the State cannot withdraw criminal prosecutions en masse.
SCOPE OF ARTICLE 258:
Jayantilal Amritlal v Rana o It was held that the President can delegate not only executive powers but also quasi-legislative & quasi-judicial powers. o It was also held that the President can only delegate the powers of the Union Executive & not the powers granted specifically to the President, i.e. a distinction must be drawn between the powers of the President & the powers of the Union Executive. (J. C. Shah, J.) Sardari Lal v Union of India o It was held that the President cannot delegate those powers to secretaries which he cannot delegate to the States. Samsher Singh v State of Punjab o It unanimously (7-0) overruled Sardari Lal v Union of India. o It was held that the satisfaction of the President meant the satisfaction of the Council of Ministers or the concerned official.
ARTICLE 298:
If there are business activities being carried on by the Centre, they are subject to State laws. Similarly, if a State is carrying on business activities in another State, it is subject to the laws of that State.
SCOPE OF ARTICLE 355:
Naga People’s Movement for Human Rights v Union of India o Facts In 1958, the Centre enacted the Armed Forces Special Powers Act. This was challenged on the ground that it interfered with the federal nature of the Constitution. o It was held that the law was valid because, at the time it was enacted, it came partly under Entry 2 of the Union List & partly under the residuary powers of the Centre. Now, after the 42 nd amendment in 1976, it comes partly under Entry 2 of the Union List & partly under Entry 2A of the Union List. State of Karnataka v Union of India o Facts Under the Commission of Enquiry Act, 1952, the Centre set up the Grover Commission to inquire into allegations of corruption
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o o
o
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against the Chief Minister & the Council of Ministers of Karnataka. This was challenged. It was held (6-1) that the Centre was authorized to set up such a Commission. The majority judgment stated that the Centre had the power under Article 356 to supercede the State &, since this is done for some real or apparent reason, it is only fair if it decides to inquire into the matter before exercising its power, i.e. the power to set up such a Commission is ancillary to the Centre’s power under Article 356. (Beg, J.) The minority judgment stated that the Constitution was silent on the matter & it was necessary to fill the gap by saying that, since the Constitution was federal in character, the powers of the Centre in relation to the States is only that which is expressly provided in the Constitution, i.e. since the power to set up such a Commission is not expressly granted by the Constitution, the Centre does not have such power. (Kailashan, J.) Comments This decision may be criticized on the following grounds. The reasoning of the majority judgment is flawed. The SC judges were so demoralized by the heavily criticized decision in ADM, Jabalpur v Shiv Kant Shukla that they were reluctant to oppose any move by the new JP government at the Centre.
PROCLAMATION OF PRESIDENT’S RULE ARTICLE 356:
Its ancestry lies in the Government of India Act, 1935. o Section 45 empowered the Governor General to impose Governor General’s rule with the ratification of the British Parliament through the Secretary of State for India in England. o Section 93 gave the same powers to the Provincial Governors with the additional requirement that the Governor General’s concurrence was necessary. o The reasons why such provisions were included in the Government of India Act, 1935 were as follows. The British felt that the Indians were incapable of self-government. The British felt that the Indians would not cooperate with the British. The reason why these provisions were incorporated in Article 356 was because the Constitution makers were of the opinion that the States were untrained in democracy.
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SITUATIONS IN WHICH ARTICLE 356 HAS BEEN RESORTED TO:
To settle intra-party problems. o By Nehru in Punjab in 1951. o These definitely amount to a misuse. When the party in power in a State loses a Parliamentary election. o The justification for this is that the party has lost the people’s mandate. o By the Janata Party in 1977, who dismissed the Congress governments in 9 states. o By Indira Gandhi in 1980, who dismissed the Janata Party governments in 9 states. o By Nehru in Kerala in 1959, who dismissed the Communist government. When no viable government can be formed due to a hung Assembly.
SAFEGUARDS AGAINST MISUSE:
President can try & dissuade the PM & the Council of Ministers. o President K. R. Narayanan refused in the Bihar case & succeeded. o Acting President V. V. Giri tried to refuse when the Congress government at the Centre dissolved the JP State governments. The Parliament may refuse to ratify. o This requirement for approval of Parliament was diluted in the case of State of Rajasthan v Union of India. o The biggest of contribution of S. R. Bommai v Union of India was that it has, at least halfway, ensured that this ratification is made mandatory. It was said that, in order to dissolve the Assembly, there must be prior approval of Parliament & the Assembly can only be suspended. th After the 44 amendment, President’s Rule cannot be extended beyond 1 year. o In U.P., during the UF government, there was a hung Assembly & Article 356 was imposed. After 1 year, it was extended & this was challenged in the Allahabad HC on the ground that it was unconstitutional. The Centre contended that it had not extended it but re-imposed it. The Allahabad HC held that it was illegal.
JUDICIAL REVIEW:
State of Rajasthan v Union of India o Facts Before this case, HCs were invited to look into Article 356 & none intervened on the ground of the Parliament being there.
44 The first time suit filed in the SC, the LS was dismissed but the State governments continued to exist. The JP government at the Centre dismissed these State governments because they did not have the requisite majority in the Electoral College so as to gain an upper hand in the Presidential elections. They also lacked a majority in the RS & thought that if the 9 State governments became JP governments, it would help them get their Bills passed in RS. Charan Singh advised the 9 CMs to step down because the LS elections had given the JP a mandate. Later, the Law Minister said that if friendly advice was not heeded, President’s Rule would be imposed. The petitioning CMs wanted the SC to decide on 2 grounds. Losing the LS elections is no ground for the imposition of Article 356. Before President’s Rule is declared, the Parliament’s should approve it. The 7-judge bench of the SC heard the arguments & rejected the contentions of the petitioners, endorsing the actions of the Centre. Consequences After the SC order, President’s Rule was declared, new elections were held without the approval of the Parliament & new Assemblies were inducted. Circumstances The 1977 elections were a constitutional watershed. 3 out of 7 judges of the bench were part of the ADM, Jabalpur v Shiv Kant Shukla case. Beg, C.J.I. was also part of the supersession episode. Comments The SC should have said that the matter was premature & disallowed the petition. The letter written by the Home Minister could be considered as a directive which the States had not performed & hence Article 356 was imposed. The SC was unable to decide very effectively as to what extent the Courts could intervene judicially & lacked clarity as to the stand they should take. The only conclusion that can be drawn is that Courts will not interfere under ordinary circumstances. The Courts can intervene on the issue of whether the government has acted as per the Constitution. The Courts cannot intervene on the issue of whether the government has acted incorrectly or correctly. Positive Aspect
o
o o
o
o
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45 For the first time, the SC allowed that judicial review is possible, though they were able to define it well. If powers are given to administrative authority, the one cannot go to the Courts. o The Courts can only look into whether the administrative authority has acted within the corners of the law. Associated Provincial Picture Houses Pvt. Ltd. v. Wednesbury Corporation o Facts Under law, Wednesbury Corporation had authority to give license to movie halls for Sunday screenings as per its conditions. Wednesbury Coroporation gave licenses subject to the issue that the hall will not allow entry for children under the age of 15. This was challenged. o It was held that the Courts will not look into whether the condition was justified & will only look intervene in extraordinary circumstances, i.e. when the decision of the corporation is perverse & opposed to rationality. o It was said that the Courts will only look into whether Wednesday Corporation worked as per the law. After the UK became a member of the EU, the understanding of reasonability is determined by proportionality. In the case of S. R. Bommai v Union of India, it was said, 2 dissenting judges apart, that there must be a difference between ground of scrutiny & standard of scrutiny. Civil Service Union v Minister for Civil Services o The House of Lords said that there are statutory powers & prerogative powers & that the exercise of the latter is not beyond judicial review. o On the issue of whether the right to form a union can be taken away, the House of Lords said that they will draw a line for the exercise of prerogative powers. In the US, where Article 4 of their Constitution is similar to Article 356 of our Constitution, the Courts have always refused to intervene & have left it to Congress. S. R. Bommai v Union of India o 6 states were involved; 3 in each category. o The 3 States in the first category were U.P., Rajasthan & M.P. & the facts regarding these States are as follows. The U.P. CM resigned after the Babri Masjid demolition without waiting for his dismissal. The only thing wrong with the first category States was that those ministers belonged to the BJP, which was also in power in U.P. It was not the government but the party that was guilty. Strictly following the law, the BJP should have been outlawed. o The SC unanimously upheld the dismissal of these governments & did not scrutinize the grounds for dismissal.
46 o The 3 States in the second category were Karnataka, Meghalaya & Nagaland. The only thing common between these States was that defections had taken place. The issue was whether the government had ceased to exist or should the new government which had come into existence be allowed to continue. Karnataka The Janata government was dismissed because a few MLAs defected. Meghalaya There were perpetual defections. The opposition government suffered. Nagaland There were perpetual defections. The Congress government suffered. o The SC held that the dismissals were invalid. o On the issue of the scope of judicial review, all agreed that Courts had the power to judicial review & that the scope was wider than that laid down in the case of State of Rajasthan v Union of India. o The SC also stated that constitutional law & administrative law are different because the standard of scrutiny in constitutional law under Article 356 cannot be as strict as the Courts exercised in ordinary cases of administrative law. o Comments The decision regarding Karnataka is technically correct but the Governor should allow for a floor test before he reaches any decision. The decision of the SC as per constitutional law requirements is wrong, but in the prevailing political situation of India, it has been largely welcomed by the public.
S R Bommai Guidelines
FINANCIAL RELATIONS
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JUDICIARY Independence of the Judiciary: Having regard to the importance and significance attached to the function performed by the judiciary, the Constitution has consciously provided for separation of judiciary from the executive. Not only this, the Constitution discloses a distinct bias in favour of the independence of the judiciary. It is in furtherance of this objective that several provisions relating to the appointment and removal of judges, at whatever level they may be, have been enacted. A brief reference to the said provisions would now be in order. Justice Bhagwati, who led on behalf of the minority observed in Union of India v. Sankalchand Himatlal Sheth:2 "...the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document.... Justice, as pointed out by this Court in Samsher Singh v. State of Punjab [1974 Indlaw SC 127: 1974 Indlaw SC 127: 1974 Indlaw SC 127] can become 'fearless and free only if institutional immunity and autonomy are guaranteed'."
Appointment of Judges to the Supreme Court Article 124(2): Clause (2) of Article 124 inter alia says 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 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: 2
1977 Indlaw SC 104 : 1977 Indlaw SC 104 : 1977 Indlaw SC 104. (SCC pp. 236-37, para 50)
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Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.” Under our constitutional scheme, the President is the constitutional head. In exercise of the powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union Council of Ministers in the name of the President. Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”. The Constituent Assembly debates show that when it was suggested by some of the members that the expression should be ‘concurrence’ and not ‘consultation’, it was not agreed to. Similarly, the suggestion to provide for approval of Parliament or its upper House - probably inspired by the U.S. Constitution – was also not agreed to by Dr. Ambedkar (see his speech in Constituent Assembly debates Vol.8 p.258). Practice followed till 1981: A practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the position till 1981.
Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India (AIR 1982 SC 149), the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance tilted in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less. In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) overruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice of
49 India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were are recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system. One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the “cherished concept of independence.” It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment. Reaction to this judicial assertion of power have not been uniform. In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution [In Re Presidential Reference Case]. All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court. Seniority to be followed in appointment of Chief Justice of India: So far as the appointment of the Chief Justice of the Supreme Court of India is concerned, both the 1993 decision and the 1998 opinion lay down that the senior-most judge should always be appointed as the Chief Justice of India.
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AMENDMENT OF THE CONSTITUTION
There are several portions of organic law that, if changed, would impact certain Constitutional provisions.
There are 3 different types of Constitutional amendments (Article 368) Those that can be made simply like ordinary law, without any special requirements to be met.
They require only a simple majority of the members present & voting.
Examples of such amendments are
Issues of citizenship.
Changes to the Schedule V or Schedule VI of the Constitution.
Those that require special requirements to be met.
They require a majority in each House of Parliament.
The majority required is not an ordinary majority but a 2/3 majority.
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The 2/3 majority must not be less than the ordinary majority of the total strength of the House.
At least half the State legislatures need to ratify it.
The President does not have any choice but to give his assent to such an amendment (according to the 24th Amendment).
The question that arises is regarding why the President’s assent is required at all.
The probable reason is because there has to be some authentication before the amendment comes into effect.
Even the Courts can’t question such amendments.
JUDICIAL PRONOUNCEMENTS IN THIS REGARD
Sri Sankari Prasad Singh Deo v Union of India & State of Bihar [1952] 1 SCR 89 Facts
The Bihar government passed the Bihar Land Reform Act which sought to do away with the zamindari system.
The Act affected small landowners who didn’t till their own land but didn’t affect large landowners who tilled their own land.
The Act was challenged because the small landowners were given a higher rate of compensation than large landowners.
The Act was struck down by the Patna High Court as violative of Article 14 of the Constitution.
The Bihar government appealed against this decision to the SC.
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However, before the SC could give its decision, the Central government passed the 1st Amendment to validate the Act.
This amendment was challenged by the petitioners.
Arguments raised by the petitioners & the SC’s replies.
The amendment did not comply with the requirements of Article 368.
The SC rejected this argument by saying that Article 368 only applied to those amendments that were specifically mentioned in the Article.
The amendment was not in compliance with Article 13 (2) of the Constitution.
The SC rejected this argument by saying that Article 13 (2) only applies to ordinary laws & not amendments. It also said that Article 368 overrules Article 13 (2).
The amendment modified the powers of the SC & the HCs to question amendments & therefore it required ratification by at least half the State legislatures.
The SC rejected this argument by saying that the amendment merely reduced the number of occasions that the Courts would be able to question amendments & did not modify their powers & hence ratification by the State legislatures was not necessary.
It was held that the amendment was valid.
Sajjan Singh v State of Rajasthan AIR 1965 SC 845 Facts
The petitioners challenged the constitutional validity of the 17th amendment.
Arguments advanced & reasons for decision
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The amendment modified the powers of the SC & the HCs to question amendments & therefore it required ratification by at least half the State legislatures.
The SC accepted this argument but said that the matter was not so drastic as to declare the amendment invalid & ask for ratification by the State legislatures & therefore only issued a warning to the Central government.
The Court suo motu brought up the issue of Article 13 (2) & said that Article 13 (2) did not prevail over Article 368 & that the Fundamental Rights could be modified.
However, Hidayatullah, J. dissented saying that he refused to accept that the Fundamental Rights were anything less than fundamental and cannot be a “plaything in the hand of majority”.
Justice Mudholkar too dissented from the majority by saying that there are certain basic features of the Constitution which cannot be changed.
It was held by a majority judgment of 3-2 that the amendment was valid.
I. C. Golak Nath v State of Punjab AIR 1967 SC 1643 Facts
Due to the close decision in the case of Sajjan Singh v State of Rajasthan, and the doubts raised by Justice Hidayatullah and Mudholkar, the constitutional validity of the 17th amendment was challenged again by the petitioners.
This time the Court said that the Fundamental Rights could not be abridged but could only be added to & that if it was absolutely necessarily to abridge the fundamental rights, then a special assembly would have to be constituted in order to do so. It was held by a majority judgment of 6-5 that the amendment was invalid.
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However, the Court merely said that similar amendments in the future would be invalid but did not cancel the amendment retrospectively because it would create practical difficulties.
Therefore, this judgment effectively only asked the Parliament to exercise restraint.
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 Facts
Indira Gandhi went to the polls stating that she would bring about certain amendments if she was elected with the requisite majority & was so elected.
The 24th amendment amended Article 13 & Article 368 in response to the objections raised by Subba Rao, J. in I. C. Golak Nath v State of Punjab.
The 25th amendment removed the Right to Property & amended Article 31 (c) to say that any law passed in pursuance of the Directive Principles could amend the Fundamental Rights & such a law could not be challenged in Court on the ground that the law was not what it purported to be.
Both the amendments were challenged by the petitioners.
The 24th amendment was unanimously upheld, overruling the decision in I. C. Golak Nath v State of Punjab.
The SC said that the Parliament could amend even the core provisions of the Constitution but not the ‘core of the core’ provisions.
The first part of the 25th amendment, i.e. the removal of the Right to Property, was upheld. The second part of the 25th amendment, i.e. the removal of judicial review, was held to be invalid as judicial review was a basic feature of the Constitution by a majority judgment of 7-6. (However, some are of the
55 opinion that it was actually a 6.5-6.5 judgment because Khanna, J. agreed with both sides on various issues.) The justifications for the majority judgment were as follows.
Amendments cannot change the identity of the Constitution.
Amendments cannot change the ‘spirit’ or basic features of the Constitution.
However, the term ‘basic features’ was not clearly explained.
Indira Gandhi v Raj Narain Facts
The 39th amendment introduced Article 329A which prevented the Courts from deciding election issues.
The amendment had no moral backing.
The misuse of the amendment powers of the Parliament was visibly demonstrated.
It was unanimously held that the amendment was invalid. The importance lies in the fact that the judiciary put away their differences & came together in order to protect the Constitution.
Even though Babar was the first Mughal emperor, it was Akbar who established the Mughal empire. Similarly, even though the basic feature doctrine was formulated in Kesavananda Bharati v State of Kerala, it was Indira Gandhi v Raj Narain that established it.
Minerva Mills v Union of India Facts
The 42nd amendment inserted a few clauses in Article 368. The amendment was challenged by the petitioners. It was held that the amendment was invalid. So far, it is observed that only those amendments that have interfered with judicial review, independence of the judiciary & the powers of the judiciary have been invalidated.
